Wakilii

Onyango & 4 Others v Odongo & 5 Others (Miscellaneous Application 79 of 2023)

High Court · [2024] UGHC 1119 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of High Court judgment pending appeal to the Court of Appeal
Decision
Application for stay of execution dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the High Court has jurisdiction under Section 98 of the Civil Procedure Act and Section 37 of the Judicature Act to entertain applications for stay of execution pending appeal to the Court of Appeal. The applicants failed to establish sufficient cause for stay: no formal execution proceedings had been commenced by the respondents almost two years after judgment, no imminent threat of execution existed, and no risk that the appeal would be rendered nugatory. Application dismissed.

Outcome

Application for stay of execution dismissed

Facts

The applicants sought stay of execution of a judgment and decree entered on 14 September 2022 in High Court Civil Suit No. 07/2021 pending determination of their appeal (Civil Appeal No. 486/2022) before the Court of Appeal. The underlying dispute concerned ownership of customary clan land. The applicants claimed the respondents were executing the judgment extra-judicially through activities including surveying, titling, logging, charcoal burning, and destroying property. The respondents denied taking any formal steps toward execution, stated they had not filed a bill of costs or applied for execution, and maintained each party remained on their respective portions of land. The application was filed in January 2023, approximately four months after the trial court decision.

Issues

  1. Whether the application for stay of execution was properly before the High Court.
  2. Whether the applicants established sufficient cause for the court to grant an order for stay of execution of the judgment and decree in High Court Civil Suit No. 07/2021.

Orders

  • Miscellaneous Application No. 079/2023 is dismissed.
  • Each party shall bear their own costs.

Rules and key headnotes

Stay of Execution — Jurisdiction — High Court jurisdiction to grant stay pending Court of Appeal appeal
The High Court has jurisdiction under Section 98 of the Civil Procedure Act and Section 37 of the Judicature Act to entertain applications for stay of execution of its own decrees pending appeal to the Court of Appeal, notwithstanding the absence of specific provision in Order 43 of the Civil Procedure Rules which governs appeals to the High Court from lower courts.
Stay of Execution — Concurrent jurisdiction — High Court and Court of Appeal
The High Court and the Court of Appeal have concurrent jurisdiction in matters of stay of execution, with Rule 42(1) of the Judicature (Court of Appeal Rules) Directions requiring that an application be first made to the High Court save in exceptional circumstances.
Stay of Execution — Grounds for grant — Prima facie case and irreparable injury
For a court to grant stay of execution pending appeal, the applicant must establish: (1) the appeal has a likelihood of success or raises a prima facie case; (2) the applicant is likely to suffer irreparable damage or substantial loss; (3) if grounds 1 and 2 are not established, the balance of convenience favours the applicant; and (4) the application was instituted without unreasonable delay.
Stay of Execution — Imminent threat of execution — What constitutes
An imminent threat of execution justifying stay must be evidenced by formal or affirmative steps taken by the successful party to execute the decree, such as filing an application for execution. Alleged extra-judicial activities such as logging or destruction of property, in the absence of formal execution proceedings, do not constitute an imminent threat of execution and are best resolved by police or local authorities.
Stay of Execution — Nugatory appeal — Status quo
An appeal will not be rendered nugatory where no affirmative steps have been taken to enforce removal of affected persons from disputed land and where the ultimately successful party will be well placed to enforce the final decision regardless of which party prevails. The absence of irreversible change to the status quo weighs against granting stay.

Legislation cited (3)

Cases cited (11)

  • Theodore Ssekikubo and 3 Others v Attorney General and 4 Others (Supreme Court Constitutional Application No. 06 of 2013)
  • Ssembatya Bumbakali and Another v Eco Petro (U) Ltd (Miscellaneous Application No. 199 of 2015)
  • Okurut Joseph and Others v New Bubajjwe Primary School and Another (Civil Appeal No. 62 of 2013)
  • Camille v Meralli [1966] EA 411
  • Obwatan John Steven v Wakholi James and Others (Miscellaneous Application No. 180 of 2022)
  • Kantinti E. Mbaziira v Lumala Moses (High Court Miscellaneous Application No. 270 of 2024)
  • Ejulu Martin v Itobu Margret (High Court Miscellaneous Application No. 160 of 2022)
  • Ayee-Too David Mutesa v Abonga Yusamo and Another (Miscellaneous Application No. 02 of 2024)
  • Saggu v Road Master Cycles (U) Ltd [2002] 1 EA 258
  • Lawrence Musitwa Kyazze v Eunice Busingye (Supreme Court Civil Application No. 18 of 1990)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Civil Appeal No. 341 of 2013)

Full judgment

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

Onyango & 4 Others v Odongo & 5 Others (Miscellaneous Application 79 of 2023) [2024] UGHC 1119 (27 December 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.