Rwamulago v Magulu (Civil Application 1083 of 2023)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A single Justice of the Court of Appeal granted a stay of execution pending appeal. Both preliminary objections were overruled: the supplementary affidavit was not an abuse of process because pleadings had not closed and the respondent had opportunity to reply, and the application was competent under rule 42(2) of the Court of Appeal Rules because the applicant had first, unsuccessfully, sought a stay in the High Court. On the merits, the court found a notice and memorandum of appeal had been lodged, the applicant was likely to suffer substantial loss (potential homelessness on the disputed land), the appeal raised arguable questions, the balance of convenience favoured the applicant, and there had been no unreasonable delay.

Outcome

Stay of execution granted pending hearing and determination of the appeal

Facts

The respondent sued the applicant in the High Court at Mpigi (Civil Suit No. 53 of 2018) and judgment was entered for the respondent on 21 December 2020. The applicant lodged a notice of appeal on 30 December 2020 and a memorandum of appeal on 10 May 2021. Substantive and interim applications for stay of execution filed in the High Court (Misc. Applications No. 15 and 16 of 2021) were dismissed, as was a further High Court application. The respondent began executing the decree, attaching cattle, though the attached animals were later released and returned to the applicant's farm, and the applicant's daughter executed a bond to pay the decretal sum. The applicant remained in possession of the disputed land, which he averred was his family home of over thirty years and their only source of livelihood. He then brought this application for stay of execution in the Court of Appeal to preserve the status quo pending the appeal.

Issues

1. Whether the applicant's supplementary affidavit, filed and served after the respondent's affidavit in reply and without leave of court, constituted an abuse of court process.
2. Whether the application for stay of execution was competent before the Court of Appeal given that a stay application had already been dismissed by the High Court.
3. Whether the applicant had satisfied the conditions for the grant of an order of stay of execution pending appeal.

Orders

• An order of stay of execution is issued staying execution of the decree of Civil Suit No. 53 of 2018 pending hearing and determination of Civil Appeal No. 140 of 2021 by the Court of Appeal.
• Costs shall abide the outcome of the appeal.

Rules and key headnotes

Legislation cited (6)

• Judicature (Court of Appeal Rules) Directions SI 13-1 r.6(2)(b)
• Judicature (Court of Appeal Rules) Directions SI 13-1 r.42(1)
• Judicature (Court of Appeal Rules) Directions SI 13-1 r.42(2)
• Judicature (Court of Appeal Rules) Directions SI 13-1 r.51
• Judicature (Court of Appeal Rules) Directions SI 13-1 r.76
• Civil Procedure Rules SI 71 O.52 r.1

Cases cited (7)

• Theodore Ssekikubo and others v Attorney General & Ors (Civil Application No. 6 of 2013)
• Hon. Ssekikubo & Ors v Attorney General & Ors (Constitutional Application No. 3 of 2014)
• Mutembuli Yusuf v Nangwomu Moses Musimba & Anor (Election Petition Appeal No. 43 of 2016)
• Kyambogo University v Prof Isaiah Omolo Ndiege (Civil Appeal No. 341 of 2013)
• Tropical Commodities Suppliers Ltd & Ors v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331
• Stanley Kang'ethe Kinyanjui v Tonny Ketter and 5 Ors (2013) eKLR
• Beeline Travel Care (U) Ltd & Anor v Finance Trust Bank (Civil Appeal No. 67 of 2023)

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