Okune 5 Others v Obia Another [2024] UGHC 1094
High Court
· 2024
Application Dismissed
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Holding
Application for stay of execution pending appeal dismissed. Held that while declaratory orders accompanied by consequential orders can be stayed, applicants failed to satisfy essential requirements: no imminent threat of execution demonstrated; execution of orders reversible if appeal succeeds thus appeal would not be rendered nugatory; no substantial loss proven beyond ordinary consequences of adverse judgment; granting stay would create confusion with two rival claimants to office contrary to public interest and rights of Lango people.
Outcome
Application for stay of execution dismissed with costs to the respondents
Facts
Applicants sought stay of execution of High Court judgment in Civil Suit No. 10 of 2024 pending appeal. The underlying suit concerned the election of traditional leaders of Lango. The High Court had declared the election of the 1st applicant as Paramount Chief null and void, stopped the 4th-6th applicants from acting as Electoral Commission members, ordered the Minister to degazette the 1st applicant, declared that a rival claimant's election was also null and void, and declared that Yosum Odur Ebii remained the Paramount Chief and should be re-gazetted. The applicants filed notice of appeal on 1 November 2024, five days after judgment. They claimed the respondents were attempting to implement the orders and that they would suffer irreparable loss. They deposited security for costs of UGX 200,000.
Issues
- Whether the applicants satisfied the mandatory requirements for the grant of stay of execution pending appeal.
- Whether the orders issued by the High Court in Civil Suit No. 10 of 2024 are self-executing and therefore not amenable to stay of execution.
- Whether declaratory orders accompanied by consequential orders can be stayed pending appeal.
- Whether the applicants demonstrated substantial loss and that the appeal would be rendered nugatory if stay is not granted.
- Whether there is a serious or imminent threat of execution of the decree.
- Whether the appeal raises arguable grounds with a likelihood of success.
Orders
- Application dismissed.
- Costs awarded to the respondents.
Rules and key headnotes
Stay of Execution — Self-Executing Orders — Injunctions and Declaratory Orders
Orders of injunction are self-executing and do not require execution process to put the judgment creditor into enjoyment of the fruits of the order. The operation of an injunction commences immediately upon issuance or notification and parties are duty-bound to comply without the need for the decree holder to apply to the court for execution.
Stay of Execution — Declaratory Judgments — When Amenable to Stay
Whether a declaratory judgment is amenable to stay of execution depends on the circumstances of each case. Where declaratory orders are not stand-alone declarations of rights but are accompanied by consequential orders which parties must comply with, the court can grant an order of stay of execution of the declarations if the conditions set out in law are met, because the declarations and consequential orders are so intertwined that staying only the consequential orders in isolation would defeat the purpose of protecting the appellant's right of appeal.
Stay of Execution — Conditions for Grant — Imminent Threat of Execution
An order of stay of execution will issue only if there is actual or presently threatened execution of a decree in any of the modes stipulated under section 38 of the Civil Procedure Act. Imminent threat means a condition that is reasonably certain to place the applicant's interests in direct peril and is immediate and impending, not merely remote, uncertain or contingent. There must be unequivocal evidence showing that unconditional steps conveying gravity of purpose and imminent prospect of execution have been taken by the respondent. Letters written to the Minister requesting implementation of court orders or letters of demand are not a threat of execution.
Stay of Execution — Appeal Rendered Nugatory — Reversibility of Orders
The test of whether an appeal will be rendered nugatory if stay is not granted depends on whether what is sought to be stayed, if allowed to happen, will be reversible, or if it is not reversible, whether damages will reasonably compensate the aggrieved party, or whether it is in the public interest to grant a stay. Where all the orders of the court, if implemented, are reversible if the appeal is successful, the appeal will not be rendered nugatory.
Stay of Execution — Substantial Loss — Meaning and Proof Required
Substantial loss is a qualitative concept referring 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. It is not enough to merely repeat words of the code and state that substantial loss will result; the kind of loss must be specified, details must be given, and the court's conscience must be satisfied that such loss will really ensue. The applicant must establish factors which show that 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. The ordinary loss which every judgment debtor necessarily suffers when he loses his case and is deprived of his property does not constitute substantial loss within the meaning of the rules.
Stay of Execution — Public Interest Considerations
Where the grant of an order of stay of execution would inflict greater hardship than it would avoid, the court will desist from granting the order. Where a judgment has declared rival claims to a traditional leadership position null and void, granting a stay would lead to an absurd situation where both claimants would continue to hold out as the legitimate holder of the office, creating further confusion in the cultural institution to the detriment not only of the parties but to the entire community concerned, thereby further infringing on their right to culture. In such circumstances, it is in the best interest of justice that no order for stay of execution is issued pending appeal.
Legislation cited (11)
- Judicature Act Cap. 16 s.33
- Civil Procedure Act Cap. 282 s.25
- Civil Procedure Act Cap. 282 s.38
- Civil Procedure Act Cap. 282 s.98
- Civil Procedure Rules S.I. 71-1 Order 21
- Civil Procedure Rules S.I. 71-1 Order 41 r.1
- Civil Procedure Rules S.I. 71-1 Order 41 r.9
- Civil Procedure Rules S.I. 71-1 Order 43 r.4(3)
- Judicature (Court of Appeal Rules) Directions S.I. 13-10 of 2000 r.76(1)
- Institution of Traditional or Cultural Leaders Act Cap. 242
- Constitution of Uganda Articles 2, 28, 138, 142, 144
Cases cited (31)
- Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Civil Application No. 341 of 2013)
- Osman Kassim Ramathan v Centenary Bottling Company Ltd (Supreme Court Civil Appeal No. 35 of 2019)
- Co - operative Bank of Kenya Limited versus Banking Insurance & Finance Union (Kenya) Court of Appeal of Kenya Civil Application No. 133 of 2015
- Florence Cherugut versus Cheptum Murei Annah Land Case No. 140 of 2017
- Infinity Telecom Uganda Ltd versus Eco Bank Uganda Ltd and another, HCMA No. 2129 of 2016
- Finasi/Roko Construction SPV Ltd v Roko Construction Ltd (Court of Appeal Civil Application No. 220 of 2019)
- Norman Washington Manley Bowen versus Shahine Robinson and Neville Williams [2010] JMCA27
- Chief RA Okoya & others versus Santilli and others, SC 200/7989
- Attorney General v Dr. Busingye Kabumba (Constitutional Application No. 16 of 2022)
- Lawrence Musiitwa Kyazze v Eunice Businghye (Supreme Court Civil Application No. 18 of 1990)
- Jomo Kinyatta University of Agriculture &Technology versus Martin Higiro Court of Appeal of Kenya Civil Appeal (Application) No. E268 OF 2024
- Yellow Horse Inns Ltd vs. A. A Kawir Transporters & 4 others [2014] eKLR
- Kenya Commercial Bank Limited vs. Nicholas Ombija [2009] eKLR
- Stanley Kang'ethe Kinyanjui versus Tonny Ketter and 5 Ors (2013) e KlR
- Beeline Travel Care (U) Ltd v Finance Trust Bank (Court of Appeal Civil Application No. 67 of 2023)
- Albert George Gitta v Lilian Nangoma (Court of Appeal Civil Application No. 693 of 2022)
- Krone Uganda Ltd v Kerilee Investment Ltd (Court of Appeal Civil Application No. 63 of 2020)
- Tropical Commodities Supplies Ltd and others v. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331
- DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)
- Formula Feeds Limited and 3 others versus KCB Bank Limited High Court Miscellaneous Application No. 1647 Of 2022
- Uganda Revenue Authority v East African Property Holdings Ltd (Court of Appeal Civil Application No. 220 of 2019)
- Exclusive Estate Limited vs. Kenya Posts and Telecommunications Corporation and Another [2005] 1 EA 53 (CA)
- Ejalu Martin versus Itobu Margret HCMA No. 0160 of 2022
- Obwaton John Steven versus Wakholi James and others HCMA No. 0180 of 2022
- Baguma Paul T/A Panache Associates versus Eng. Karuma Kagyina HCMA no. 460 of 2020
- Lubega Moses v Nasimbwa Sylvia (Court of Appeal Civil Application No. 122 of 2024)
- Twongyeirwe Peter v Muhumuza Peter, Miscellaneous Application No. 0681 of 2021
- James Wangalwa & Another versus Agnes Naliaka Cheseto [2012] eKLR
- Tanzania Cotton Marketing Board versus Coqecot Cotton Co. SA (1995-1998) 1 E.A 312
- Bansidhav Vs Pribku Dayal AIR 41 1954
- Osman Kassim v Century Bottling Company Ltd (Supreme Court Civil Appeal No. 34 of 2019)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.
Okune 5 Others v Obia Another 2024 UGHC 1094 (29 November 2024)
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