Wakilii

Nansubuga & 2 Others v Nakanjako & 3 Others (Miscellaneous Application 139 of 2021)

High Court · [2023] UGHC 417 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal to the Court of Appeal arising from Civil Suit No. 40 of 2011
Decision
Application for stay of execution dismissed; execution may proceed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed an application for stay of execution pending appeal. The court struck out the respondents' affidavit in reply for being filed four months late without sufficient justification. On the merits, the court found the applicants guilty of inordinate delay in bringing the application more than a year after execution commenced, failed to prove substantial loss beyond speculative assertions, and raised grounds of appeal that did not present serious questions with likelihood of success.

Outcome

Application for stay of execution dismissed; execution may proceed

Facts

The applicants were defendants in Civil Suit No. 40 of 2011 concerning the estate of the late Tadeo Kafero. Judgment was delivered against them on 26 June 2020. The plaintiffs filed a bill of costs on 29 June 2020, issued eviction notices on 20 August 2020, and wrote to the Commissioner Land Registration on 3 September 2020 requesting alterations to certificates of title. The applicants filed a notice of appeal on 3 September 2021 and this application for stay of execution on 22 September 2021, more than a year after judgment. The respondents filed their affidavit in reply on 1 March 2022, approximately four months after the 15-day deadline, without seeking leave or providing justification for the delay.

Issues

  1. Whether the affidavit in reply should be struck off the record for having been filed out of time.
  2. Whether there are sufficient grounds that warrant grant of the application for stay of execution.

Orders

  • The affidavit in reply is struck off the record.
  • The application for stay of execution is dismissed.
  • Each party shall bear its own costs.

Rules and key headnotes

Civil Procedure — Affidavits — Filing Out of Time — Exercise of Discretion
Where a respondent files an affidavit in reply out of time without advancing any reason for the delay and without seeking leave of court, the court should not exercise its discretion to admit the affidavit, as doing so would encourage default in complying with timelines.
Civil Procedure — Stay of Execution — Requirements — Substantial Loss
To establish substantial loss warranting a stay of execution, an applicant must go beyond vague and general assertions and adduce evidence of the status quo, how it is in their favour, and how an alteration will negatively affect them pending appeal. Speculative depositions that beneficiaries will lose shares without supporting evidence are insufficient.
Civil Procedure — Stay of Execution — Likelihood of Success — Frivolous Appeals
Although determining the merit of grounds of appeal is the duty of the appellate court, the High Court has a duty to protect litigants against frivolous appeals. Where grounds of appeal do not raise serious questions to be tried and are weak with close to no likelihood of success, this weighs against granting a stay of execution.
Civil Procedure — Stay of Execution — Delay — Inordinate Delay
Where an application for stay of execution is filed more than a year after the respondents commenced the execution process, and no reason is advanced for the delay, the applicants are guilty of inordinate delay, which is a ground for refusing the stay.

Legislation cited (8)

Cases cited (19)

  • Stop and See (U) Ltd v Tropical Africa Bank Ltd (HCMA No. 333 of 2010)
  • Utex Industries Ltd v Attorney General (SCCA No. 15 of 1995)
  • Namatovu Victor and Another v Nakanjako Teopista and 2 Others (HCMA No. 137 of 2020)
  • Attorney General v Uganda Law Society (SCCA No. 1 of 2006)
  • Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 6 of 2013)
  • Gashumba Maniraguha v Sam Nkundiye (SCCA No. 24 of 2015)
  • Shem Mpanga and Another v Kiiza Classy Banya (HCMA No. 479 of 2021)
  • Tropical Commodities Supplies Ltd and 20 Others v International Credit Bank Ltd (in Liquidation) [2004] 2 EA 331
  • Kawanga v Namyalo and Another (MA No. 12 of 2017)
  • China Henan International Group Co. Ltd v Justus Kyabahwa (HCMA No. 815 of 2022)
  • Dr. Lam Lagoro James v Muni University (MCC No. 07 of 2016)
  • Mabu Commodities Ltd v Sophie Nakitende (MA No. 530 of 2020)
  • The Ramgarhia Sikh Society and Others v The Ramgarhia Sikh Education and Others (HCMA No. 352 of 2015)
  • Hon. Theodore Ssekikubo and Others v Attorney General and Others (SCCA No. 3 of 2014)
  • Kyambogo University v Prof. Isaiah Omollo Ndiege (COAMA No. 341 of 2013)
  • Pan African Insurance Co. (U) Ltd v International Air Transport Association (HCMA No. 86 of 2006)
  • Andrew Kisawuzi v Dan Oundo Malingu (HCMA No. 467 of 2013)
  • GAPCO Uganda Ltd v Kaweesa & Another (HCMA No. 259 of 2013)
  • John Baptist Kawanga v Namyalo Kevina and Another (HCMA No. 12 of 2017)

Full judgment

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Nansubuga & 2 Others v Nakanjako & 3 Others (Miscellaneous Application 139 of 2021) [2023] UGHC 417 (17 May 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.