Wakilii

P. K Sengendo v Busulwa Lawrence and Male Abdu (Civil Application No. 207 of 2014)

Court of Appeal · [2013] UGCA 2053 · 2013 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal, brought in the Court of Appeal before a Single Justice
Decision
Application for stay of execution dismissed; notice of appeal struck out as an abuse of court process

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Single Justice dismissed the application for stay of execution. An application of this nature must first be made in the High Court under Rule 42(1), and no special circumstances justified the Court of Appeal entertaining it first. The applicant failed to show that the appeal would be rendered nugatory or that he would suffer substantial loss, the execution being limited to taxed costs of UGX 10,905,000; impecuniousness is not sufficient cause. The applicant also failed to comply with mandatory Rule 83 requirements, no proof of service of the letter requesting proceedings was retained, no appeal was filed within time, and no extension was sought. The notice of appeal was struck out as an abuse of court process.

Outcome

Application for stay of execution dismissed; notice of appeal struck out as an abuse of court process

Facts

The applicant lost an appeal in the High Court (Civil Appeal No. 002 of 2008) which set aside a Chief Magistrate's judgment and decree that had been in his favour. Dissatisfied with the High Court decision, the applicant filed a notice of appeal in the Court of Appeal. The respondents had taxed and obtained a bill of costs of UGX 10,905,000 and applied for execution to recover those costs. The applicant sought a stay of execution pending the disposal of his intended appeal, contending that the appeal would be rendered nugatory unless the stay was granted. The respondents remained in occupation of the suit land. Counsel for the applicant conceded he had not retained proof of service of the letter requesting certified copies of the High Court record, that no certified record had been supplied, that no appeal had yet been filed, and that the applicant had no money to satisfy the decree.

Issues

  1. Whether the application for stay of execution was properly brought in the Court of Appeal without first being made in the High Court.
  2. Whether the applicant established sufficient cause and special circumstances to warrant a stay of execution pending appeal.
  3. Whether the applicant complied with the mandatory requirements of Rule 83 of the Rules of the Court of Appeal so as to preserve a valid notice of appeal.

Orders

  • Application dismissed with costs.
  • Notice of appeal struck out under Rule 2(2) of the Rules of the Court of Appeal as an abuse of court process.
  • Civil Application No. 208 of 2014 for an interim order of stay of execution dismissed with no order as to costs.

Rules and key headnotes

Civil Procedure — Stay of Execution — Requirement to Apply First in the High Court
An application for stay of execution pending appeal to the Court of Appeal must first be made in the High Court under Rule 42(1); the Court of Appeal will only entertain it first where special or rare circumstances exist, such as refusal of jurisdiction by the High Court or great delay.
Civil Procedure — Stay of Execution — Sufficient Cause and Impecuniousness
An applicant for stay of execution must show sufficient cause; mere impecuniousness or inability to pay the decretal sum does not amount to sufficient cause, and the mere filing of an appeal does not entitle a party to a stay as a matter of course.
Civil Procedure — Stay of Execution — Nugatory Appeal and Substantial Loss
Where the execution sought to be stayed concerns only the recovery of taxed costs, such execution does not render the appeal nugatory nor cause the applicant substantial loss, as costs can be atoned for in damages.
Civil Procedure — Notice of Appeal — Mandatory Service Requirements under Rule 83
The duty under Rule 83 of the Rules of the Court of Appeal to serve the respondent and retain proof of service is mandatory and not a mere technicality; failure to comply deprives the appellant of the automatic extension of time, and Article 126(2)(e) of the Constitution cannot cure non-compliance.

Legislation cited (9)

  • Judicature Act s.33
  • Rules of the Court of Appeal r.5(2)
  • Rules of the Court of Appeal r.6(2)
  • Rules of the Court of Appeal r.42(1)
  • Rules of the Court of Appeal r.83(1)
  • Rules of the Court of Appeal r.83(2)
  • Rules of the Court of Appeal r.83(3)
  • Rules of the Court of Appeal r.2(2)
  • Constitution of Uganda Article 126(2)(e)

Cases cited (6)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Civil Application No. 341 of 2013)
  • National Enterprise Corporation v Mukisa Foods (Miscellaneous Application No. 7 of 1998)
  • Teddy Sseezi Cheeye v Enos Tumusiime (Civil Application No. 21 of 1996)
  • Francis Hansio Micar v Nuwa Walakira (Civil Application No. 9 of 1990)
  • John Matsiko v Bangankore Kuteterana (Civil Application No. 43 of 1998)

Full judgment

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

P. K Sengendo v Busulwa Lawrence and Male Abdu (Civil Application No. 207 of 2014) [2013] UGCA 2053 (6 November 2013)
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.