Wakilii

Ntumwa and Another v Sajjabi (Civil Miscellaneous Application 45 of 2024)

High Court · [2024] UGHC 692 · 2024 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal to the Court of Appeal from a High Court appellate judgment
Decision
Stay of execution granted subject to deposit of UGX 10,000,000 as security for costs within 15 days; failing which, application to be dismissed with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for stay of execution pending appeal to the Court of Appeal partly allowed. Court held that the applicants satisfied the conditions under Order 43 Rule 4(3) of the Civil Procedure Rules: a notice of appeal was filed; substantial loss may result unless stay is granted; and the application was made without unreasonable delay. Court ordered deposit of UGX 10,000,000 as security for costs within 15 days, failing which the application would be dismissed with costs. Each party to bear own costs of the application.

Outcome

Stay of execution granted subject to deposit of UGX 10,000,000 as security for costs within 15 days; failing which, application to be dismissed with costs

Facts

The applicants sought to stay execution of a judgment in High Court Civil Appeal No. 31 of 2019, in which the respondent was awarded UGX 15,000,000 as compensation and UGX 10,000,000 as general damages. The applicants filed a notice of appeal on 24 November 2022 and subsequently filed Civil Appeal No. 444 of 2024 at the Court of Appeal. The respondent had taxed a bill of costs totalling UGX 40,306,700 and filed an execution application. A preliminary objection was raised by the respondent claiming the application was defective because the first applicant swore the affidavit without written authority from the second applicant. The applicants had previously filed Miscellaneous Application No. 215 of 2022 for stay of execution which was dismissed for non-appearance. The applicants received certified copies of the record of proceedings in May 2024. The respondent filed an execution application on 6 February 2024, served on 27 February 2024, and the instant application was filed on 29 February 2024.

Issues

  1. Whether this application discloses grounds for the grant of an order for stay of execution.
  2. What other remedies are available to the parties in the circumstances.

Orders

  • Application allowed in part.
  • The applicants are ordered to deposit UGX 10,000,000 as security for costs within 15 days from the date of delivery of this ruling.
  • Should the applicants fail to abide with the order to deposit security, the application will be dismissed with costs.
  • Each party bears their own costs of this application.
  • Right of appeal explained.

Rules and key headnotes

Affidavits — Multiple Applicants — Authority to Swear on Behalf of Others
Where there is more than one party to an application, there is no requirement that all must swear affidavits in support of the application or give written authority, provided the affidavit is not sworn on behalf of others. A party to a suit does not require authority to depose an affidavit in support of a suit as long as it is not done on behalf of others who have not authorised him to do so. When the relevant facts are within the common knowledge of parties having the same interest in the litigation, an affidavit by one of them will suffice.
Stay of Execution — Grounds for Grant — Notice of Appeal Sufficient
A notice of appeal is a sufficient expression of an intention to file an appeal and such action is sufficient to found the basis for grant of orders of stay in appropriate cases. The law on stay of execution requires filing of a notice of appeal, not a memorandum of appeal.
Stay of Execution — Substantial Loss — Nature and Meaning
Substantial loss does not represent any particular size or amount but refers to any loss, great or small, that is of real worth or value as distinguished from a loss that is merely normal. The main criterion for staying execution should be whether the judgment debtor would suffer substantial loss if the decree was executed notwithstanding that the decree might subsequently be set aside. The applicant must establish factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal.
Stay of Execution — Unreasonable Delay — Obtaining Certified Record
It is only fair that an intended appellant who has filed a notice of appeal should be able to apply for a stay of execution as soon as possible and not have to wait until he has lodged his appeal to do so. Owing to the long delay in obtaining the proceedings of the High Court it may be many months before he could lodge his appeal. In the meantime, the execution of the decision of the court below could cause him irreparable costs.
Stay of Execution — Security for Costs — Not a Condition Precedent
The depositing of security for costs is not a condition precedent to the grant of stay of execution. A deposit of security for costs is a requirement under Order 43 Rule 4(3) of the Civil Procedure Rules but it is not a condition precedent that one has to deposit the security for costs before filing the application. It is upon the court's discretion upon finding whether the security for costs should be deposited or not.

Legislation cited (9)

Cases cited (23)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (SCCA No. 18 of 1990)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal No. 341 of 2013)
  • Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd, [1996] 1 E.A 696
  • Kaheru Yasin & Another v. Zinomurumi David, M.A No. 82 of 2071
  • Taremwa Kamishani and Others v Attorney General (Miscellaneous Application No. 38 of 2012)
  • Kaingana v. Dabo Boubon [1986] HCB 59
  • Samuel Kabagambe Ntungwa and 2 Others v Florence Kekibuga (Miscellaneous Application No. 110 of 2022)
  • Esemu Nicholas and Another v Mwitanirwa Charles (HCMA No. 952 of 2020)
  • Bank One Limited v Simbamanyo Estates Limited (Miscellaneous Application No. 645 of 2020)
  • Attorney General of the Republic of Uganda v. The East African Law Society and Another, EACJ Application No 1 of 2013
  • Equity Bank (U) Ltd v Nicholas Were (Miscellaneous Application No. 604 of 2013)
  • Formula Feeds Limited and 3 Others v KCB Bank Limited (HCMA No. 1647 of 2022)
  • Tropical Commodities Supplies Ltd and Others v. International Credit Bank Ltd (in liquidation) [2004] 12 E.A 331
  • Eriab Kabigizza v. Lawrence Sserwanja (1975) H.C.B 199
  • Alice Wambui Nganga v. John Ngure Kahoro and Another, ELC Case No. 482 of 2017 (at Thika); [2021] eKLR
  • Ujagar Singh v. Runda Coffee Estates Ltd, [1966] E.A 263
  • Imperial Royale Hotel Ltd and 2 Others v Ochan Daniel (Miscellaneous Application No. 3 of 2012)
  • Kawalya v Namyalo and Another (Miscellaneous Application No. 12 of 2017)
  • Ntoroko Local District Government v Babiiha Christopher (Miscellaneous Application No. 101 of 2022)
  • Blue Jay Investments Ltd and Another v Jacob Muuo Mwangagi and Another (HCCA No. 71 of 2022)
  • Khalsa Schools & 2 Others v. Samuel Odhiambo Otieno [2021] eKLR
  • Jamil Bora Bank Limited and Another v Samuel Wambugu Ndirangu (HCCA No. 30 of 2021)
  • Gianfranco Manenthi & Another v. Africa Merchant Assurance Co. Ltd [2019] Eklr

Full judgment

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Ntumwa and Another v Sajjabi (Civil Miscellaneous Application 45 of 2024) [2024] UGHC 692 (24 June 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.