Nangoye & 2 Others v Midi (Civil Application 460 of 2023)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

On an application to a single Justice for a stay of execution pending appeal, the Court restated the established conditions: a likelihood of success or prima facie arguable appeal, a risk of irreparable damage or that the appeal would be rendered nugatory, and that the application was brought without delay. The Court found the applicants' grounds of appeal raised arguable points of law and fact, and that they faced irreparable damage — loss of their share in the estate land and threatened committal to civil prison — if execution proceeded. Having found both conditions satisfied, the Court declined to consider the balance of convenience and granted the stay.

Outcome

Application for stay of execution granted pending the hearing and determination of Civil Appeal No. 265 of 2023

Facts

The respondent sued the applicants in the High Court (HCCS No. 172 of 2014), seeking a declaration that land comprised in Kyadondo Block 265 Plot 1799 at Bunamwaya did not form part of the estate of the late Lwandasa Kaloli and that she was its beneficial owner. On 31 August 2022 the High Court decreed the suit land to the respondent and directed the applicants, as administrators of the estate, to deliver the title and transfer documents to the Registrar within two weeks. The applicants, dissatisfied, filed Civil Appeal No. 265 of 2023. Their earlier High Court application for a stay of execution was dismissed. The respondent began executing the decree, demolishing some structures and undertaking fresh construction, and applied for execution by arrest and committal to civil prison for the applicants' failure to surrender the title. The applicants, occupying part of the disputed land containing several houses, then sought a stay of execution from the Court of Appeal.

Issues

1. Whether the applicants adduced sufficient reasons to justify the grant of a stay of execution pending the hearing of their appeal.

Orders

• An order for stay of execution of the decree in HCCS No. 172 of 2014 granted, pending the hearing and final determination of the appeal.
• Costs of the application to abide the outcome of the appeal.

Rules and key headnotes

Legislation cited (6)

• Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.6(2)(b)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.43(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.44(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.76
• Judicature Act s.33

Cases cited (3)

• Theodore Ssekikubo and Others v Attorney General and Another (Constitutional Application No. 6 of 2013)
• Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR
• Giella v Cassman Brown & Co [1973] EA 358

The original judgment as reported. Read the original PDF before relying on any passage.