Wakilii

Nsubuga v Nakigudde (Miscellaneous Application 1251 of 2024)

High Court · [2024] UGHCLD 184 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of a Chief Magistrate's Court decree pending determination of an application for leave to appeal out of time
Decision
Execution stayed pending determination of the application for leave to appeal out of time

Observed later treatment

No later-treatment classification is recorded for this judgment.

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.

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

Held that execution of a decree may be stayed pending determination of an application for leave to appeal out of time where failure to do so would render that application nugatory. The court exercised its inherent jurisdiction under section 98 of the Civil Procedure Act, finding that the applicant had filed a notice of appeal indicating intention to appeal, would suffer substantial loss from eviction of church property he constructed, and acted without unreasonable delay. Security need not be furnished where respondent did not insist on it. Application granted.

Outcome

Execution stayed pending determination of the application for leave to appeal out of time

Facts

The respondent and her late husband obtained judgment and decree against the applicant in Civil Suit No.104 of 2018 at the Chief Magistrates Court of Kajjansi, declaring suit land matrimonial property and ordering eviction within 90 days. Judgment was delivered on 17 January 2024. The applicant filed a notice of appeal on 23 January 2024 through his former lawyers and requested typed proceedings on 24 January 2024. The record was availed on 29 January 2024, but the applicant did not file a memorandum of appeal within 30 days. His new lawyers advised that time to appeal had elapsed. He filed Miscellaneous Cause No.53 of 2024 seeking leave to appeal out of time. The applicant constructed a church called Hosanna Miracle Center on the land. The respondent threatened eviction in execution of the decree.

Issues

  1. Whether execution in Chief Magistrates Court of Kajjansi at Kajjansi in Civil Suit No.104 of 2018 should be stayed pending the hearing and final determination of Miscellaneous Cause No.53 of 2024?

Orders

  • The execution of the decree and orders in Civil Suit No. 104 of 2018 in the Chief Magistrates Court of Kajansi at Kajansi is hereby stayed until determination of Miscellaneous Cause No. 53 of 2024 for leave to appeal out of time.
  • The costs shall abide the outcome of Miscellaneous Cause No 53 of 2024.

Rules and key headnotes

Stay of Execution — Inherent Jurisdiction — Preservation of Subject Matter Pending Application for Leave to Appeal Out of Time
A court has inherent jurisdiction under section 98 of the Civil Procedure Act to order stay of execution of a decree where it is just and equitable to do so, to avoid rendering nugatory an application for leave to file an appeal out of time, even where the appeal itself has not yet been filed or authorised.
Stay of Execution — Notice of Appeal as Expression of Intention — Sufficient Basis for Stay
A notice of appeal is a sufficient expression of an intention to file an appeal and such action is sufficient to find the basis for grant of an application for stay of execution, even where no memorandum of appeal has yet been filed.
Stay of Execution — Substantial Loss — Meaning and Proof
The words 'substantial loss' in Order 43 rule 4(3) of the Civil Procedure Rules cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when deprived of property in consequence of losing a case; it must mean something in addition to and different from ordinary litigation loss. An applicant must go beyond vague and general assertions to demonstrate specific substantial loss.
Stay of Execution — Dilatory Conduct — Mistakes of Counsel Should Not Be Visited on Litigant
The mistakes, faults, lapses or dilatory conduct of counsel should not be visited on the litigant. Where an applicant's former lawyers filed a notice of appeal but new lawyers subsequently advised that time had elapsed and filed an application for extension of time, the applicant is not guilty of unreasonable delay.
Stay of Execution — Security for Due Performance — Discretion Where Respondent Does Not Insist
In granting an order of stay of execution pending an appeal, the court has to balance the need to uphold the respondent's right to be protected from the risk that the appellant may not be able to satisfy the decree, with the appellant's right to access the courts. Where the respondent has not insisted on security, the court may decline to order the applicant to furnish security for due performance of the decree.

Legislation cited (7)

Cases cited (11)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Hon. Theodore Ssekikuubo and Others v Attorney General and Others (Constitutional Application No. 3 of 2014)
  • Geoffrey Nangumya v Security Plus (U) Limited (Miscellaneous Application No. 0858 of 2021)
  • Formula Feeds Vs KCB Bank
  • Attorney General v East African Law Society and Another (East African Court of Justice Application No. 1 of 2013)
  • Equity Bank (U) Ltd v Nicholas Were (High Court Miscellaneous Application No. 604 of 2013)
  • Tanzania Cotton Marketing Board Vs Cogecot Cotton Co. S.A (1995-1998) E.A 312
  • Andrew Bamanya v Shamsherali Zaver (Supreme Court Civil Application No. 70 of 2001)
  • Junaco (T) Limited and Others v DFCU Bank Limited (Miscellaneous Application No. 0027 of 2023)
  • National Enterprise Corporation v Mukisa Foods (Miscellaneous Application No. 7 of 1998)
  • Giuliano v Calaudio 2013 UGSC 17

Full judgment

↓ Download PDF

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

Nsubuga_v_Nakigudde_(Miscellaneous_Application_1251_of_2024)_[2024]_UGHCLD_184_(9_July_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.