Wakilii

Ndiwo and 2 Others v Mutyaba (Miscellaneous Application 946 of 2023)

High Court · [2023] UGHCLD 235 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of judgment pending appeal to the Court of Appeal
Decision
Application dismissed but protective order issued prohibiting respondent from dealing with suit property pending appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court declined to grant a stay of execution of a judgment pending appeal to the Court of Appeal. The court held that the applicants failed to demonstrate substantial loss and that a permanent injunction, being self-executing, cannot be stayed. However, to preserve the suit property and prevent the appeal from being rendered nugatory, the court prohibited the respondent from mortgaging, charging, selling, or disposing of the suit property until determination of the appeal.

Outcome

Application dismissed but protective order issued prohibiting respondent from dealing with suit property pending appeal

Facts

The applicants, Mariam Ndiwo and Kasida Ltd, sought a stay of execution of a judgment in HCCS No. 0798 of 2017 pending their appeal to the Court of Appeal. In the original suit, the respondent Hadua Mutyaba (as Administratrix of the Estate of the late Sewalu Ahamada) successfully sued the applicants for recovery of land comprised in LRV 987 Folio 10, Block 273 Plot 363 at Najjanankumbi. The High Court had declared void a loan/mortgage transaction and subsequent sale of the property to Ndiwo, finding fraud and illegality. The court ordered cancellation of Ndiwo's name as registered proprietor and reinstatement of the deceased's name, with subsequent registration of Mutyaba as administratrix. A permanent injunction was issued against the applicants. The applicants filed a notice of appeal and sought stay of execution, arguing their appeal had high likelihood of success and they would suffer substantial loss. The respondent opposed, contending the notice of appeal was incompetent due to failure to serve it within the prescribed time.

Issues

  1. Whether sufficient cause has been shown to warrant the grant of an Order of stay of execution?

Orders

  • Application for stay of execution disallowed.
  • Upon being registered as proprietor of the suit property pursuant to the judgment and decree in HCCS No. 0798 of 2017, Ms. Hadija Mutyaba is prohibited from mortgaging, charging, selling, distributing or in any way disposing of the suit property until the determination of the applicants' intended appeal to the Court of Appeal, or unless otherwise ordered by the Court of Appeal.
  • Each party to bear their own costs.

Rules and key headnotes

Civil Procedure — Stay of Execution — Jurisdiction of High Court and Court of Appeal
Both the High Court and the Court of Appeal have concurrent jurisdiction to grant or decline to grant an order of stay of execution where an appeal has been lodged in the Court of Appeal.
Civil Procedure — Stay of Execution — Competence of Notice of Appeal — Determination by Court of Appeal
It is the preserve of the Court of Appeal to determine whether there has been failure by an intended appellant to take any essential step required by the Court of Appeal Rules, and if so, whether such failure renders the appeal incompetent. The High Court should not pronounce itself on the competence of an appeal on grounds of time requirements under the Court of Appeal Rules, as this would amount to pre-judging the appeal.
Civil Procedure — Stay of Execution — Substantial Loss — Special Circumstances Required
Payment of a judgment debt by a judgment debtor would not cause an applicant for stay of execution any injustice unless there are special circumstances to justify the grant of the order. Substantial loss is a qualitative concept and refers to any loss, great or small, that is of real worth or value, as distinguished from loss without value or a loss that is nominal.
Civil Procedure — Stay of Execution — Permanent Injunction — Cannot Be Stayed
A permanent injunction is a self-executing order that does not require execution orders under the methods of execution provided in section 38 of the Civil Procedure Act. It is an automatic prohibitive order that is already in force and simply requires compliance. An order of stay of execution cannot be granted in respect of such a prohibitive order, as to grant the same would tantamount to revising the order, a power the court does not possess once it is functus officio.
Civil Procedure — Stay of Execution — Inherent Powers — Preservation of Subject Matter Pending Appeal
Where a court declines to grant a stay of execution but the subject matter is immovable property, the court may exercise its inherent powers under section 33 of the Judicature Act and section 98 of the Civil Procedure Act to make orders that preserve the property and allay the fears of the applicants that their appeal may be rendered nugatory, by prohibiting the successful party from dealing with the property until determination of the appeal.

Legislation cited (12)

Cases cited (9)

  • National Enterprise Corporation v Mukisa Foods (Court of Appeal Miscellaneous Application No. 7 of 1998)
  • Dr. Ahmed Muhammed Kisuule v Greenland Bank Ltd (in Liquidation) (Supreme Court Civil Application No. 07 of 2010)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Kibalama Mugwanya v Butebi Investments Enterprises Ltd (Court of Appeal Civil Appeal No. 190 of 2013)
  • Mugenyi & Co. Advocates v National Insurance Corporation (Court of Appeal Civil Appeal No. 13 of 1984)
  • Tropical Commodities Suppliers Ltd and 3 Others v International Credit Bank Ltd (High Court Miscellaneous Application No. 379 of 2003)
  • Kampala City Council v National Pharmacy Ltd [1979] HCB 215
  • Nakivubo Road Old Kampala Kisekka Market Vendors Ltd and Another v Kayita Geoffrey and 3 Others (High Court Miscellaneous Application No. 2052 of 2017)
  • Exclusive Estates Ltd v Kenya Posts and Telecommunications Corporation and Another [2005] 1 EA 53

Full judgment

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

Ndiwo_and_2_Others_v_Mutyaba_(Miscellaneous_Application_946_of_2023)_[2023]_UGHCLD_235_(7_August_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.