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Rutajengwa and Another v Gatete (Miscellaneous Application No. 1637 of 2021)

High Court · [2022] UGCOMMC 95 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of orders made in Miscellaneous Application No. 505 of 2021 (a review application) arising from Civil Suit No. 511 of 2013, pending intended appeal
Decision
Application for stay of execution dismissed; applicants remain liable to pay general damages of UGX 100,000,000; caveats on suit properties remain vacated

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application for stay of execution. The court held that where a review application is granted by a judge of similar jurisdiction (though not the same judge who passed the decree), an automatic right of appeal exists under Order 44 r.1(1)(h) CPR. However, the applicants failed to demonstrate that their intended appeal had a likelihood of success, making the application frivolous. Additionally, execution had partially occurred as caveats on suit properties were already vacated.

Outcome

Application for stay of execution dismissed; applicants remain liable to pay general damages of UGX 100,000,000; caveats on suit properties remain vacated

Facts

The applicants sought a stay of execution of orders made in Miscellaneous Application No. 505 of 2021, a review application arising from Civil Suit No. 511 of 2013. In the review application, the court had ordered removal of caveats from several properties (including FRV 584 Folio 19 Plot 35 Nakivubo Road, LRV 3550 Folio 21 Plot 24 Mackay Road Kampala, FRV 454 Folio 19 Plot 27 Martin Road Kampala) and ordered the applicants to pay general damages of UGX 100,000,000. The applicants filed a notice of appeal on 11 November 2021 and this stay application on 30 November 2021. The respondent opposed on grounds that the application was frivolous, that no automatic right of appeal existed, and that execution had already partly occurred as the Commissioner Land Registration had vacated the caveats on the properties.

Issues

  1. Whether the applicants have an automatic right of appeal against the orders made in Miscellaneous Application No. 505 of 2021 (a review application decided by a judge other than the one who passed the original decree).
  2. Whether the applicants have satisfied the requirements for a stay of execution pending appeal.

Orders

  • Application dismissed with costs to the respondent.

Rules and key headnotes

Civil Procedure — Appeals — Right of Appeal from Review Applications — Automatic Right Where Review Granted by Judge of Similar Jurisdiction
Where a review application is granted by a judge of similar jurisdiction (though not the same judge who passed the decree under review), an automatic right of appeal exists under Order 44 r.1(1)(h) of the Civil Procedure Rules. The phrase 'the same Judge' in the context of review applications implies a court that passed the judgment. In exceptional cases where the original judge is unavailable due to death, retirement, transfer, or administrative reasons, a successor or another judge of concurrent jurisdiction may hear and decide the review application, and such orders enjoy the same right of automatic appeal as if made by the original judge.
Civil Procedure — Stay of Execution — Requirements — Likelihood of Success on Appeal
An applicant for stay of execution must demonstrate that the intended appeal has a likelihood of success and is not frivolous. Skeletal arguments are required to convince the court that grounds of appeal merit adjudication by the appellate court. It is not necessary to have a full memorandum of appeal, but the applicant must point out unfairness or injustice in the lower court's determination that would constitute grounds of appeal. Merely reproducing lower court orders without identifying substantial questions for appellate determination is insufficient.
Civil Procedure — Stay of Execution — Security for Costs — Discretionary Nature
The decision whether to order security for due performance of a decree pending appeal must be made according to the circumstances of each particular case and in consonance with the probability of success of the appeal. The legal provisions on security for due performance were never intended to fetter the right of appeal, but to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. The status of the applicant should be put into consideration when deciding whether security should be ordered.
Civil Procedure — Stay of Execution — Substantial Loss — Definition and Application
Substantial loss in the context of stay of execution does not represent any particular amount or size and cannot be quantified by any particular mathematical formula. It refers to any loss, great or small, of real worth or value as distinguished from a loss that is merely nominal. It means something of real worth and importance, not seeming or imaginary or illusive, something worthwhile as distinguished from something without value or merely nominal.

Legislation cited (10)

Cases cited (12)

  • Kyozze v Busingye (Supreme Court Civil Application No. 18 of 1990)
  • Ssekikubo v Attorney General (Constitutional Application No. 03 of 2014)
  • Kyambogo University v Ndiege (Court of Appeal No. 341 of 2013)
  • Lane v Esdaile [1891] AC 210
  • Ex parte Stevenson (1892) QB 609
  • Rwehulo v Tumwijukye (Miscellaneous Application No. 152 of 2020)
  • Tropical Commodities Supplies Ltd v International Credit Bank [2004] EA 331
  • Seglem v Skelly Oil Co, 145 Kan.216 P.2d 553, 554
  • In Re Crouse's Estate, 173 Wash. 1, 21 P. 2d 268
  • Kawongo v Namyalo (Miscellaneous Application No. 12 of 2017)
  • Amuanuan v Opolot (Miscellaneous Application No. 3 of 2014)
  • Wilson v Church (1879) 12 Ch D 454

Full judgment

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Rutajengwa and Another v Gatete (Miscellaneous Application No. 1637 of 2021) [2022] UGCommC 95 (11 July 2022)
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.