Wakilii

Nsabimana v Jokana & Another (Civil Application 222 of 2023)

Court of Appeal · [2024] UGCA 40 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application before a single Justice of the Court of Appeal for a stay of execution pending the hearing of a civil appeal
Decision
Application for stay of execution dismissed; interim stay of execution vacated

Observed later treatment

Cited — treatment unverified cited in 2 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 2 times with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

A single Justice of the Court of Appeal dismissed the applicant's application for a stay of execution. Applying the principles in Ssekikubo v Attorney General and Lawrence Musiitwa Kyazze v Busingye, the court held that although the memorandum of appeal raised triable issues showing a likelihood of success, the applicant failed to satisfy the remaining conditions: he adduced no cogent evidence of irreparable damage or substantial loss, brought the application about three years after dismissal of his earlier High Court application without explanation (an unreasonable, dilatory delay), did not establish that the balance of convenience favoured him, and neither deposited nor showed willingness to deposit security for due performance of the decree.

Outcome

Application for stay of execution dismissed; interim stay of execution vacated

Facts

The applicant, Emmanuel Nsabimana, was a party to a land dispute in which the High Court, in HCCS No. 0128 of 2015, held that he had no authority to purchase the kibanja on the suit land and was a trespasser. He appealed against that decision in Civil Appeal No. 09 of 2019, which was pending before the Court of Appeal. An earlier application for a stay of execution, HCMA No. 86 of 2019, was dismissed by the High Court on 19 February 2020. Approximately three years later, on or about 26 May 2023, after execution proceedings were initiated against him, the applicant filed the present application seeking a stay of execution of the High Court orders pending determination of the appeal. The respondents opposed the application, contending it was an abuse of court process and that the notice of appeal had been served out of time, rendering the appeal incompetent.

Issues

  1. Whether the application presented justified reasons for granting a stay of execution pending the hearing of the appeal.

Orders

  • The application has no merit.
  • Costs shall abide the outcome of the appeal.
  • The interim stay of execution is hereby vacated.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for grant
An applicant for a stay of execution must establish that the appeal has a likelihood of success or a prima facie right to appeal, that the applicant will suffer irreparable damage or the appeal will be rendered nugatory if the stay is not granted, and that the application was instituted without delay; where likelihood of success and irreparable damage are not established, the court considers where the balance of convenience lies.
Civil Procedure — Stay of Execution — Irreparable damage — Burden of proof
An applicant must demonstrate by cogent evidence that substantial loss will result if the stay is not granted; merely asserting the existence of a hearing notice and an application for execution, without supporting affidavit evidence, does not satisfy the requirement of irreparable damage.
Civil Procedure — Stay of Execution — Unreasonable delay
An unexplained delay of about three years in filing an application for a stay of execution after an earlier application was dismissed by the High Court is dilatory and constitutes unreasonable delay disentitling the applicant to the order.
Civil Procedure — Stay of Execution — Security for due performance of the decree
An applicant for a stay of execution must provide, or demonstrate willingness to provide, security for the due performance of the decree or order; failure to deposit such security or show any willingness to do so is fatal to the application.
Civil Procedure — Likelihood of success — Effect of alleged defects in service of notice of appeal
An applicant's failure to comply with service or certification requirements for the appeal has no bearing on the likelihood of success of the appeal where the opportunity to comply, or to seek an extension of time, remains open; an objection that the appeal may be struck out for late service is speculative at the stay stage.

Legislation cited (8)

  • Judicature (Court of Appeal) Rules SI 13-10 r.2(2)
  • Judicature (Court of Appeal) Rules SI 13-10 r.6(2)(b)
  • Judicature (Court of Appeal) Rules SI 13-10 r.43(1)
  • Judicature (Court of Appeal) Rules SI 13-10 r.72
  • Judicature (Court of Appeal) Rules SI 13-10 r.76
  • Judicature (Court of Appeal) Rules SI 13-10 r.78(1)
  • Judicature Act s.6(2)
  • Civil Procedure Rules Order XXXIX r.1(3)

Cases cited (6)

  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Civil Application No. 341 of 2013)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Horizon Coaches Limited v Mutabaazi & 3 Others (Civil Appeal No. 20 of 2001)
  • Hon. Theodore Ssekikubo & Others v Attorney General and Another (Constitutional Application No. 06 of 2013)
  • Gashumba v Nkundiye (Civil Application No. 24 of 2015)
  • Jayndrakumar Devechand Devani vs. Haridas Vallabhdas Bhadresa & Anor, Civil Appeal [1957] EACA 11

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Nsabimana v Jokana & Another (Civil Application 222 of 2023) [2024] UGCA 40 (21 February 2024)
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.