Wakilii

Okalang & Another v Aurugai & Another (Miscellaneous Application 278 of 2024)

High Court · [2025] UGHC 115 · 2025 Application Granted 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, arising from dismissal of Civil Appeal No. 09 of 2021
Decision
Application granted with conditions — stay of execution ordered pending appeal, conditioned upon payment of security for costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that stay of execution granted subject to security for costs. Co-applicants with common interests may rely on one affidavit without written authority. Party identity established through trial court evidence. Stay granted where applicant filed notice of appeal, appeal arguable, and imminent threat of execution would render appeal nugatory through cutting of trees with ancestral significance.

Outcome

Application granted with conditions — stay of execution ordered pending appeal, conditioned upon payment of security for costs

Facts

The applicants, mother and son, were the plaintiffs in Civil Suit No. 010 of 2017 claiming trespass to land forming part of the estate of the late Jude Okalang. The suit land comprised approximately half an acre with mvule and acacia trees used by the applicants' family for cultivation and as shades to ancestral shrines. The trial Chief Magistrate dismissed their suit. Their appeal (Civil Appeal No. 09 of 2021) was also dismissed by the High Court. After filing a notice of appeal to the Court of Appeal on 7 October 2024, the applicants learned that the respondents had obtained consequential orders from the Chief Magistrate on 24 January 2025, including eviction within 14 days and an order to cut down the mvule tree. The applicants sought stay of execution pending appeal, alleging imminent execution would destroy trees of high sentimental and ancestral value.

Issues

  1. Whether the affidavit in support sworn by the 2nd Applicant without written authority from the 1st Applicant renders the application incompetent.
  2. Whether the 2nd Respondent is a non-existent party.
  3. Whether an order for stay of execution should be granted.

Orders

  • Stay of execution granted restraining the Respondents from executing orders in Civil Suit No. 010 of 2017 and Civil Appeal No. 09 of 2021.
  • Stay granted subject to payment of security for costs of UGX 5,000,000.
  • First preliminary objection overruled.
  • Second preliminary objection overruled.

Rules and key headnotes

Civil Procedure — Affidavits — Multiple Applicants — Authority to Swear
Where parties claim the same interest in property and rely on facts within their common knowledge, an affidavit sworn by one co-applicant suffices without written authority from the other, as what is required in affidavits is the knowledge or belief of the deponent rather than authorisation by a party to the litigation.
Civil Procedure — Parties — Identity of Parties
A party is not a non-existent party merely because they are referred to by different names in the pleadings and judgment, where the record establishes that all names refer to the same individual through their own sworn testimony.
Civil Procedure — Stay of Execution — Principles
To grant stay of execution pending appeal, the applicant must establish: (1) that the appeal has a likelihood of success or a prima facie case; (2) that the applicant will suffer irreparable damage or the appeal will be rendered nugatory if stay is not granted; (3) if the above are not established, where the balance of convenience lies; and (4) that the application was instituted without delay.
Civil Procedure — Stay of Execution — Substantial Loss
Substantial loss for purposes of stay of execution means loss which cannot be quantified by any monetary compensation. The purpose of stay is to preserve the status quo and prevent rendering the appeal nugatory. Where execution would result in cutting down trees of ancestral and sentimental value, this constitutes substantial loss not adequately compensable in damages.
Civil Procedure — Stay of Execution — Consequential Orders Distinguished from Execution
A consequential order is one which gives effect to the decision of court and does not bar a successful party from following the execution process required by law. Where consequential orders include eviction and destruction of property, there is imminent threat of execution justifying grant of stay.
Civil Procedure — Stay of Execution — Security for Costs
Security for costs is not a condition precedent to the grant of stay of execution, but where respondents were successful parties in both the trial court and on appeal, it serves the ends of justice to condition the stay upon payment of security for costs.

Legislation cited (4)

Cases cited (12)

  • Kaawa Steven & Anor V. Mawerere Benefansi
  • Banco Arabe Espanol v Bank of Uganda [1999] 2 EA 22
  • Namutebi Matilda v Ssemanda Simon and 2 Others (Miscellaneous Application No. 430 of 2021)
  • Grace Namulondo and 3 Others v Jone Johns Serwanga Salongo and 2 Others (Miscellaneous Cause No. 001 of 2019)
  • Gashumba Maniraguha v Sam Nkudiye (Civil Application No. 24 of 2015)
  • Theodore Ssekikubo and Others v Attorney General and Another (Constitutional Application No. 06 of 2013)
  • Lubega Moses v Nassibwa Sylivia (Civil Application No. 0122 of 2024)
  • Haruna Sentongo v I & M Bank Ltd (Civil Application No. 113 of 2023) [2023] UGCA 153
  • Tropical Commodities Supplies Ltd v International Credit Bank Ltd (in liquidation) (2004) 2 EA 331
  • Kiiza Sanyu v Emojong John (Civil Application No. 130 of 2024)
  • Henry O. Owoniyi and Others V. Amorc (NIG) (2000)
  • Kidudu Patrick and Others v Sebakaki Issa and Others (Miscellaneous Application No. 0087 of 2024)

Full judgment

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

Okalang & Another v Aurugai & Another (Miscellaneous Application 278 of 2024) [2025] UGHC 115 (17 March 2025)
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.