Wakilii

Okumu & 2 Others v Uganda Electricity Transmission Co. Limited (Miscellaneous Application 60 of 2021)

High Court · [2024] UGHCCD 160 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of decree and orders pending determination of appeals to the Supreme Court and Court of Appeal
Decision
Execution of decree stayed pending determination of appeals

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted an order staying execution of the decree in HCCS No. 49 of 2014 pending determination of Supreme Court Civil Appeal No. 18 of 2020 and Court of Appeal Civil Appeal Nos. 209 of 2020 and 118 of 2019. The court held that the applicants satisfied the requirements for stay: the pending appeals raised arguable points not frivolous in nature; execution would occasion substantial loss and render the appeals nugatory; the application was made without unreasonable delay; and security already deposited for related proceedings sufficed.

Outcome

Execution of decree stayed pending determination of appeals

Facts

In HCCS No. 49 of 2014, judgment was delivered in favour of the respondent, which was upheld by the Court of Appeal in Civil Appeal No. 28 of 2017. The applicants filed a further appeal to the Supreme Court vide Civil Appeal No. 18 of 2020. The respondent's bill of costs was taxed at UGX 1,424,727,300. The applicants appealed the taxation award to the Judge, who upheld the taxing master's decision. The applicants further appealed to the Court of Appeal vide Civil Appeal No. 209 of 2020. The respondent took out a notice to show cause why execution should not issue, creating a threat of execution against the applicants. Originally eight applicants filed the application but five withdrew during the hearing. The applicants sought stay of execution pending determination of their pending appeals. The respondent argued that during taxation hearing on 26 June 2018, the parties consented to taxed costs of UGX 26,481,000, which sum the applicants had not paid. The respondent contended that the applicants had no known addresses or assets to enable recovery of the taxed costs if the appeals failed.

Issues

  1. Whether the application raises sufficient grounds for stay of execution pending determination of Supreme Court Civil Appeal No. 18 of 2020 and Court of Appeal Civil Appeal No. 209 of 2020?

Orders

  • An order doth issue staying execution of the decree and orders in HCCS No. 49 of 2014 pending the hearing and determination of Civil Appeal No. 18 of 2020 by the Supreme Court.
  • An order doth issue staying execution of the decree and orders in HCCS No. 49 of 2014 pending the hearing and determination of Civil Appeal No. 209 of 2020 and Civil Appeal No. 118 of 2019 by the Court of Appeal.
  • The costs of the two applications shall abide the outcome of the respective appeals.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant — Pending Appeal
When exercising discretion to grant or refuse an order for stay of execution, a court considers: (i) whether the applicant has a pending appeal or proceeding that is not frivolous and has a likelihood of success; (ii) whether there is a serious and imminent threat of execution and refusal to stay would inflict substantial loss or render the appeal nugatory; (iii) whether the application was made without unreasonable delay; and (iv) whether the applicant is prepared to give security for due performance of the decree.
Civil Procedure — Stay of Execution — Likelihood of Success — Test
An appeal will be considered to have a likelihood of success where the prospects of succeeding are not remote but there is a realistic chance of succeeding. It must be apparent that the case is arguable on appeal or that the case cannot be categorised as hopeless. There should be a sound, rational basis, founded on the facts and the law, justifying the conclusion that the appellate court will differ from the court whose judgment has been appealed against.
Civil Procedure — Stay of Execution — Frivolous Appeal — Test
An appeal will be considered frivolous if prima facie the grounds intended to be raised are without any reasonable basis in law or equity and cannot be supported by a good faith argument. If there is strong evidence showing that the appeal has no merit or that it was filed for delay or not in good faith, such an appeal will be considered frivolous. Circumstances indicating a frivolous appeal include the applicant's conduct of prior litigation showing that the appeal is merely part of a series of suits, applications and appeals over the same subject matter in which the applicant has engaged with no success or no chance of success.
Civil Procedure — Stay of Execution — Trial Court's Role — Limits
It is not the place of the trial court to pre-judge an appeal that validly lies before the appellate court. The trial court ought to be careful and only invoke the test for frivolousness in plain cases where its conclusions do not amount to pre-determining the appeal for the appellate court. The application of the test should not involve assessment as to whether the appeal shall succeed on the merits, as such would amount to the trial court constituting itself as the court on appeal.
Civil Procedure — Stay of Execution — Substantial Loss — Test
Substantial loss does not represent any particular amount or size or mathematical formula. It is a qualitative concept and refers to any loss, great or small, that is of real worth or value, as distinguished from a loss without value or a loss that is merely nominal. Substantial loss in the context of a particular case must be loss that is not contemplated by the parties. Determination as to whether a certain loss is substantial is a qualitative test to be determined by the context of each case.
Civil Procedure — Stay of Execution — Successful Party's Right — Fruits of Judgment
A successful party is prima facie entitled to the fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion. For an applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss; there must be empirical or documentary evidence to support such contention. The court will not consider assertions of substantial loss at face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss.
Civil Procedure — Stay of Execution — Security — Intertwined Cases
Where cases pending between the same parties are intertwined, security for costs already deposited with the court in respect of one related proceeding may suffice to meet the ends of justice for purpose of serving as security for due performance of a decree in a stay application relating to another intertwined proceeding, depending on the result of the pending appeals.

Legislation cited (2)

Cases cited (10)

  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Civil Appeal No. 341 of 2013)
  • Theodore Ssekikubo & 3 Others v Attorney General & 4 Others (Constitutional Application No. 6 of 2013)
  • Gashumba Maniraguha v Sam Nkundiye (SC Civil Application No. 24 of 2015)
  • Junaco (T) Limited & 2 Others v DFCU Bank Limited (High Court Miscellaneous Application No. 27 of 2003)
  • Nesco Services Limited v CM Construction (EA) Limited [2019] eKLR
  • Tropical Commodities Suppliers Ltd & 2 Ors v International Credit Bank Ltd (in liquidation) (High Court Miscellaneous Application No. 379 of 2003)
  • Augustine Kasozi v Arvind Patel (Miscellaneous Application No. 503 of 2021)
  • Trans track Ltd v Damco Logistics (High Court Miscellaneous Application No. 608 of 2012)
  • Samvir Trustee Limited v Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997
  • Kisaalu Joseph & Others v Nakitto Mayi & Another (High Court Miscellaneous Application No. 105 of 2020)

Full judgment

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Okumu & 2 Others v Uganda Electricity Transmission Co. Limited (Miscellaneous Application 60 of 2021) [2024] UGHCCD 160 (16 October 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.