Wakilii

Ninyambungira v Mugabe (Civil Application 36 of 2023)

Supreme Court · [2023] UGSC 76 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application before a single Justice of the Supreme Court for an interim order staying execution of a Court of Appeal judgment and staying High Court divorce proceedings, pending the substantive application and intended appeal
Decision
Application for interim stay of execution and stay of proceedings dismissed with costs to the respondent, subject to any contrary determination by a fully constituted Supreme Court

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The single Justice held that an interlocutory application for an interim stay of execution and stay of proceedings cannot be granted where the appeal on which it is based is prima facie incompetent. The registrar had certified that the record of proceedings was availed to the applicant's lawyers on 5 June 2023, so the 60 days for lodging the memorandum of appeal under rule 79(2) lapsed around 5 August 2023; the memorandum was only filed on 12 September 2023 and was therefore out of time. As the notice of appeal could not support an application under rule 6(2)(b), and subject to any contrary determination by a full bench, the application had no basis and was dismissed with costs to the respondent.

Outcome

Application for interim stay of execution and stay of proceedings dismissed with costs to the respondent, subject to any contrary determination by a fully constituted Supreme Court

Facts

On 17 April 2023 the Court of Appeal set aside a High Court Family Division divorce judgment and decree nisi (Divorce Cause No. 117 of 2021) and ordered a retrial before another judge. The applicant lodged a notice of appeal on 28 April 2023, within time. The registrar certified that the record of proceedings was availed to the applicant's lawyers on 5 June 2023, but the memorandum of appeal was only received in the Supreme Court on 12 September 2023. The respondent moved to enforce the Court of Appeal's order and the High Court commenced the retrial, with custody and scheduling steps set for late September and October 2023. Apprehending an imminent threat of execution and that her intended appeal would be rendered nugatory, the applicant sought an interim stay of execution and stay of the High Court proceedings pending determination of her substantive application (Civil Application No. 35 of 2023) and appeal. The respondent objected that the underlying appeal was incompetent for being time-barred and that the application was unsupported by the applicant's own affidavit.

Issues

  1. Whether the memorandum of appeal was filed out of time, thereby rendering the notice of appeal incompetent and incapable of supporting an application under rule 6(2)(b).
  2. Whether the application was incompetent for being supported by the affidavit of the applicant's advocate rather than the applicant.
  3. Whether the Court of Appeal decree, being an order for retrial, was capable of execution so as to found an application for stay of execution.

Orders

  • The application for an interim order of stay of execution and stay of proceedings is dismissed.
  • Costs of the application are awarded to the respondent.

Rules and key headnotes

Civil Procedure — Interim Orders — Stay of Execution Dependent on a Competent Appeal
An interlocutory application for an interim stay of execution or stay of proceedings will not be granted where, prima facie, the appeal upon which it is based is incompetent, since the court can only exercise its discretion where there is a competent matter before it.
Civil Procedure — Appeals — Memorandum of Appeal — Sixty-Day Time Limit under Rule 79
A memorandum of appeal must be lodged within sixty days under rule 79 of the Judicature (Supreme Court Rules) Directions; where it is lodged outside that period the appeal is time-barred and the notice of appeal cannot support an application under rule 6(2)(b).
Civil Procedure — Appeals — Reckoning of Time — Registrar's Certification under Rule 79(2)
The sixty days within which to lodge a memorandum of appeal is reckoned from the time the registrar certifies that the record of proceedings was availed to the intending appellant under rule 79(2) of the Judicature (Supreme Court Rules) Directions.

Legislation cited (11)

  • Judicature (Supreme Court Rules) Directions r.2(2)
  • Judicature (Supreme Court Rules) Directions r.6(2)(b)
  • Judicature (Supreme Court Rules) Directions r.42(1)
  • Judicature (Supreme Court Rules) Directions r.72
  • Judicature (Supreme Court Rules) Directions r.79(1)
  • Judicature (Supreme Court Rules) Directions r.79(2)
  • Judicature (Supreme Court Rules) Directions r.13(1)
  • Judicature (Supreme Court Rules) Directions r.26(3)
  • Judicature (Supreme Court Rules) Directions r.3(n)
  • Judicature Act s.6(1)
  • Civil Procedure Rules O.18

Cases cited (5)

  • Remegio Obwana v The Registered Trustees of Tororo Diocese (Civil Application No. 14 of 2021)
  • China Henan International Cooperation Group Co. Ltd v Justus Kyabahwa (Civil Application No. 30 of 2021)
  • Kansiime K. Andrew v Himalaya Traders Ltd and Others (Civil Application No. 23 of 2021)
  • Davis Wesley Tusingwire v Attorney General (Constitutional Application No. 1 of 2014)
  • Mugoya Construction and Engineering Ltd v Central Electricals International Ltd (Miscellaneous Application No. 699 of 2011)

Full judgment

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Ninyambungira v Mugabe (Civil Application 36 of 2023) [2023] UGSC 76 (12 October 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.