Wakilii

Ndawula v Mutabazi (Miscellaneous Application 927 of 2021)

High Court · [2022] UGHCCD 300 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of decree pending appeal from High Court Civil Division judgment
Decision
Application for stay of execution dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application for stay of execution. The applicant failed to satisfy the conditions under Order 43 r 4(3) of the Civil Procedure Rules. While a notice of appeal had been filed, the applicant did not demonstrate that substantial loss would result from refusal of the stay, failed to show the appeal had a likelihood of success, and did not establish an eminent threat of execution since no application for execution had been filed. The application was premature and speculative.

Outcome

Application for stay of execution dismissed with costs to the respondent

Facts

The applicant filed Civil Suit No. 0066 of 2014 seeking specific performance of a contract for transfer of land comprised in Busiro Block 265 Plot 6535 at Bunamwaya. The suit was dismissed in September 2012. The applicant appealed to the Court of Appeal (HCCA No. 43 of 2020). In May 2021, the applicant filed a notice of appeal and requested typed proceedings. The respondent extracted a decree. The applicant then filed this application seeking stay of execution of the decree pending appeal, arguing the suit property was in danger of being alienated to third parties and the appeal would be rendered nugatory. The respondent opposed, arguing the application was brought in bad faith, was premature, and that there was no eminent threat of execution.

Issues

  1. Whether the applicant lodged a notice of appeal.
  2. Whether substantial loss may result to the applicant unless the stay of execution is granted.
  3. Whether the appeal is not frivolous and has a likelihood of success.
  4. Whether there is a serious or eminent threat of execution of the decree and whether the appeal will be rendered nugatory if the application is not granted.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant — Substantial Loss
For a court to grant a stay of execution pending appeal, the applicant must demonstrate that substantial loss will result unless the stay is granted. It is not sufficient to merely repeat the words of the statute and state that substantial loss will result. The applicant must specify the kind of loss and satisfy the court's conscience that such loss will actually occur. Substantial loss must mean something different from the ordinary loss which every judgment debtor necessarily suffers when deprived of property.
Civil Procedure — Stay of Execution — Eminent Threat of Execution
An application for stay of execution is premature where there is no application for execution on record. The extraction of a decree alone does not constitute an eminent threat of execution. The court must see evidence of an application for execution as proof of eminent threat before granting a stay.
Civil Procedure — Stay of Execution — Likelihood of Success on Appeal
The pendency of an appeal alone is not sufficient to establish a high chance of success. Where an applicant has filed a notice of appeal but has taken no further steps to prosecute the appeal for an extended period, the court may find that the applicant has not satisfied the condition that the appeal has a likelihood of success.

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
  • Nsubuga v Kampala City Council [1979] HCB 132
  • Tembo 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 v Mutabazi (Miscellaneous Application 927 of 2021) [2022] UGHCCD 300 (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.