Wakilii

Ndawula Sammuuel v Mutabazi Joseph (Miscellaneous Application 927 of 2021)

High Court · [2022] UGHCLD 328 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from High Court judgment in Civil Suit No. 066 of 2014
Decision
Application for stay of execution dismissed with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application for stay of execution pending appeal. The applicant failed to satisfy the conditions under Order 43 r 4(3) CPR. Although a notice of appeal had been filed, the applicant did not establish substantial loss beyond the ordinary loss every judgment debtor suffers. The applicant failed to show the appeal had a likelihood of success and no evidence of an eminent threat of execution was produced, as no application for execution had been filed. The application was premature and speculative.

Outcome

Application for stay of execution dismissed with costs

Facts

The applicant had filed Civil Suit No. 066 of 2014 against the respondent seeking specific performance of a contract for transfer of land comprised in Busiro Block 265 Plot 6535 at Bunamwaya. The suit was dismissed. The applicant filed a notice of appeal in HCCA No. 43 of 2020 in May 2020 and requested typed proceedings. The respondent extracted a decree. The applicant then brought this application for stay of execution pending appeal, alleging the respondent would transfer the land to third parties if execution was not stayed. The respondent opposed the application, arguing it was premature and brought in bad faith as no application for execution had been filed.

Issues

  1. Whether the applicant has satisfied the conditions under Order 43 r 4(3) of the Civil Procedure Rules for grant of a stay of execution pending appeal.
  2. Whether the applicant lodged a notice of appeal.
  3. Whether substantial loss may result to the applicant unless the stay of execution is granted.
  4. Whether the appeal is not frivolous and has a likelihood of success.
  5. Whether there is a serious or eminent threat of execution of the decree and whether the appeal will be rendered nugatory if stay is not granted.

Orders

  • Application dismissed with costs against the applicant.

Rules and key headnotes

Stay of Execution — Conditions Under Order 43 r 4(3) CPR
For a court to grant a stay of execution pending appeal, the applicant must satisfy the conditions under Order 43 r 4(3) of the Civil Procedure Rules including: lodging a notice of appeal; showing substantial loss unless stay is granted; making the application without unreasonable delay; giving security for due performance of the decree; showing a serious or eminent threat of execution that would render the appeal nugatory; and showing the appeal is not frivolous and has a likelihood of success.
Stay of Execution — Requirement of Substantial Loss
The word substantial in the requirement of substantial loss cannot mean the ordinary loss to which every judgment debtor is necessarily subject when he loses his case and is deprived of his property. Substantial loss must mean something different from that which must occur in all cases. The applicant must lay the basis upon which the court can make a finding that the applicant will suffer substantial loss, and must go beyond vague and general assertions of substantial loss.
Stay of Execution — Requirement of Eminent Threat of Execution
An application for stay of execution is premature and speculative where no application for execution has been filed. A decree is one of the documents used in the execution process, but execution itself is commenced by an application for execution. The court must have evidence of an eminent threat of execution before it can grant a stay. Mere extraction of a decree without evidence of an application for execution does not establish eminent threat.

Legislation cited (1)

Cases cited (4)

  • Pan African Insurance Company (U) Ltd v International Air Transport Association (High Court Miscellaneous Application No. 86 of 2006)
  • Banshidar vs Pribku Dayal Air 41 1954
  • Natete Enterprises Ltd v Kampala City Council (1979) HCB 132
  • Mukisa v Rembo Steels Ltd (High Court Miscellaneous Application No. 521 of 2007)

Full judgment

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

Ndawula_Sammuuel_v_Mutabazi_Joseph_(Miscellaneous_Application_927_of_2021)_[2022]_UGHCLD_328_(18_October_2022)
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.