Osuna v Ochieng (Misc Application No. 182 of 2017)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal granted an interim order of stay of execution pending disposal of the main application for stay. For an interim order, an applicant need only show that a substantive application is pending, sufficient cause, and a serious threat of execution; it is unnecessary to pre-empt the matters relevant to the substantive application. The Court found that the interim application had been refused in the High Court, the main application faced substantial delay following the transfer of the hearing judge, and there was a serious threat of execution for taxed costs, partly already executed. Whether a stay can arise in respect of costs was held to belong to the main application.

Outcome

Interim order of stay of execution granted pending disposal of the main application for stay

Facts

The applicant sued the respondent in Tororo Civil Suit No. 127 of 2008 over land at TICAF, Tororo, claiming general damages for encroachment. The suit was decided against the applicant with costs. His appeal in High Court Civil Appeal No. 98 of 2012 was dismissed with costs in February 2017, and he then appealed to the Court of Appeal vide Civil Appeal No. 71 of 2017. The respondent, in possession of the decretal land since 1993, taxed his bill of costs at UGX 9,713,000 on 11 July 2017 and commenced execution. The applicant paid UGX 2,713,000, leaving UGX 7,000,000 outstanding, and a notice to show cause why execution should not issue was set for hearing. The applicant's earlier interim application in the High Court (MA No. 154 of 2017) was dismissed for lack of an imminent threat, while his main application (MA No. 153 of 2017) was scheduled for 7 February 2018 before a judge subsequently transferred, threatening delay. The applicant accordingly sought an interim stay from the Court of Appeal pending disposal of his main application (MA No. 181 of 2017).

Issues

1. Whether the applicant established that there is a pending substantive application for stay of execution, sufficient cause, and an imminent threat of execution warranting the grant of an interim order of stay.
2. Whether an interim order of stay of execution may be granted in respect of costs where partial execution has already occurred.

Orders

• An interim order is issued staying the execution of the Judgment and orders in High Court Civil Appeal No. 098 of 2012 and Tororo Civil Suit No. 127 of 2008, pending final disposal of the main application for stay of execution.
• The costs of this application shall abide the outcome of the substantive application for stay of execution.
• The Registrar is directed to cause-list Miscellaneous Application No. 181 of 2017 for hearing as soon as practicable.

Rules and key headnotes

Legislation cited (6)

• Judicature (Court of Appeal Rules) Directions SI 13-10 r.1(3)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.6(2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.42
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.42(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.42(2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.43

Cases cited (10)

• Hwang Sung Industries Ltd v Tajdin Hussein and 2 Others (Civil Application No. 19 of 2008)
• Kabianga Ernest and Others v Sanyu Patrick (Civil Application No. 102 of 2015)
• Francis Sembuya v Allport Freight Services (Civil Application No. 15 of 1998)
• Uganda Revenue Authority v Kirenga Fred (Miscellaneous Application No. 91 of 2014)
• Bukenya Paul and Others v Mary Margaret Nakawunde (Civil Application No. 207 of 2016)
• Augustine Mukiibi v Hosanna Evangelistic Mission and Others (Miscellaneous Application No. 295 of 2017)
• Lawrence Musiitwa Kyazze v Eunice (Civil Appeal No. 18 of 1990)
• Wilson Mikiibi v James Ssemusambwa (Civil Application No. 9 of 2003)
• National Enterprise Corporation v Mukisa Foods (Miscellaneous Application No. 7 of 1998)
• Wilson v Church (No.2) (1879) 12 Ch D 454

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