Wakilii

Orute and Others v Alupo (Miscellaneous Application 4 of 2023)

High Court · [2023] UGHCFD 26 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from judgment in underlying civil suit
Decision
Application for stay of execution dismissed; applicants remain subject to eviction orders from underlying suit

Observed later treatment

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Holding

Court dismissed the application for stay of execution. Held that while the applicants had lodged a notice of appeal, they failed to meet the remaining conditions: the application was filed with unreasonable delay (two and a half months after the execution application); the applicants failed to demonstrate substantial loss beyond the ordinary loss every judgment-debtor suffers when losing a case; and no cogent reason existed to deprive the successful party of the fruits of her judgment where the applicants had refused to vacate land despite lawful court orders.

Outcome

Application for stay of execution dismissed; applicants remain subject to eviction orders from underlying suit

Facts

The applicants were defendants in Civil Suit No. 0003 of 2017, which resulted in judgment for the respondent declaring suit land as belonging to her late father's estate with the respondent as sole beneficiary. The applicants were declared trespassers and orders of eviction and permanent injunction were issued against them. The applicants refused to vacate the land. The respondent filed an execution application (EMA No. 0044 of 2022) for eviction. The applicants lodged a notice of appeal on 9 November 2022 and then filed this application on 3 February 2023 seeking to stay execution pending their appeal. The applicants claimed they would suffer substantial loss through eviction and feared the respondent would sell the land. The respondent opposed, stating the applicants had their own separate land and were using the application to avoid lawful court orders.

Issues

  1. Whether the applicants satisfied the conditions for a stay of execution of the judgment in Civil Suit No. 0003 of 2017 pending their appeal.
  2. Whether the applicants demonstrated that they would suffer substantial loss if execution was not stayed.
  3. Whether the application was made without unreasonable delay.
  4. Whether the applicants provided adequate security for due performance of the decree.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant — Four Prerequisites
Before granting an application for stay of execution pending appeal, the court must be satisfied that: (a) the applicant has lodged a notice of appeal; (b) substantial loss may result to the applicant unless stay is granted; (c) the application has been made without unreasonable delay; and (d) the applicant has given security for due performance of the decree as may ultimately be binding upon him.
Civil Procedure — Stay of Execution — Unreasonable Delay — Two and a Half Months
Where an execution application is filed and within the knowledge of the applicants, a delay of approximately two and a half months before filing an application for stay of execution without reason amounts to unreasonable delay.
Civil Procedure — Stay of Execution — Substantial Loss — Meaning and Scope
Substantial loss giving rise to stay of execution arises where there is imminent threat of execution which would change the status quo in such a manner that the appeal would be rendered nugatory. The words 'substantial loss' cannot mean the ordinary loss to which every judgment-debtor is necessarily subjected when losing a case and being deprived of property in consequence; substantial loss must mean something additional to and different from that ordinary loss.
Civil Procedure — Stay of Execution — Burden on Applicant — Proof of Inability to Restore Status Quo
The party seeking stay of execution must establish that substantial loss will result and that the successful party will be unable to restore the status quo ante if the appeal succeeds. Where the applicant fails to adduce evidence showing the decree-holder cannot restore the applicant to the status quo ante, and the decree-holder avers she can compensate the applicant in monetary terms, the condition of substantial loss is not satisfied.
Civil Procedure — Stay of Execution — Discretion of Court — Protection of Fruits of Judgment
A party who has obtained a lawful decree must not be deprived of the fruits of that decree except for good and cogent reasons. So long as the decree is not set aside by a competent court, it stands good and effective and should not be lightly dealt with so as to deprive the holder of the lawful decree of its fruits. Where a stay is to be granted, it must be on such terms as to security so that the decree is not made ineffective due to lapse of time.

Legislation cited (7)

Cases cited (8)

Full judgment

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

Orute and Others v Alupo (Miscellaneous Application 4 of 2023) [2023] UGHCFD 26 (16 August 2023)
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.