Wakilii

Sam Kiwanuka Walusimbi v Kate Nakatumba Kiwala Tamale (Miscellaneous Application 338 of 2024)

High Court · [2024] UGHCLD 349 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of a High Court decree pending appeal to the Court of Appeal
Decision
Stay of execution granted pending hearing and disposal of appeal; applicant to furnish security of UGX 100,000,000 and deposit duplicate certificate of title within specified timelines

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted the application for stay of execution pending appeal. The applicant satisfied all five conditions: notice of appeal was filed; the application was brought without unreasonable delay; the appeal has arguable grounds and is not frivolous; execution would render the appeal nugatory as the applicant would be evicted and the land transferred before appeal determination; and the applicant was willing to furnish security. Security of UGX 100,000,000 and deposit of the duplicate certificate of title were ordered.

Outcome

Stay of execution granted pending hearing and disposal of appeal; applicant to furnish security of UGX 100,000,000 and deposit duplicate certificate of title within specified timelines

Facts

In Civil Suit No. 39 of 2005, the respondent claimed lawful occupancy of land comprised in LRV 2804 folio 20, Kibuga Block 203 plot 3265. The respondent and her late cousin acquired the kibanja in 1977. A dispute arose in 1997 with five persons, resolved in respondent's favour in 1999. The applicant purportedly purchased the kibanja from those persons in 1997 and obtained a lease from Buganda Land Board in 2000, later extended to 49 years. On 17 November 2023, the High Court entered judgment for the respondent, declaring her the lawful occupant, revoking the applicant's leasehold, ordering cancellation of his name from the title, ordering him to vacate within 90 days, and awarding general damages of UGX 80,000,000. The applicant filed a notice of appeal on 21 November 2023 and lodged Civil Appeal No. 1482 of 2023 in the Court of Appeal. This application for stay of execution was filed on 13 February 2024, two days before the 90-day period would have expired.

Issues

  1. Whether the applicant has met the conditions for grant of an order for stay of execution against the judgment and decree of the High Court pending appeal.

Orders

  • The decree and orders made in High Court Civil Suit No. 39 of 2005 are hereby stayed pending the hearing and disposal of Court of Appeal Civil Appeal No. 1482 of 2023.
  • The applicant is ordered to furnish security for costs to a tune of UGX 100,000,000 and the duplicate certificate of title of suit land comprised in LRV 2804 folio 20, Kibuga Block 203 plot 3265.
  • The amount of UGX 100,000,000 shall be deposited on the court account as security within 30 days from 15th March 2024.
  • The certificate of title shall be deposited with the Registrar of this court as security within fourteen days from 15th March 2024.
  • The applicant shall deposit the sum of money on this court's account and present a receipt to the Deputy Registrar who should upload the same in ECCMIS.
  • The applicant shall deposit the duplicate certificate of title with the Deputy Registrar not later than 28th March 2024.
  • Costs shall abide the outcome of the appeal.
  • The preliminary objection is overruled.

Rules and key headnotes

Stay of Execution — Conditions for Grant — Five Requirements
In an application for stay of execution pending appeal, the applicant must show that: (1) a notice of appeal has been lodged; (2) the appeal may have a likelihood of success; (3) the application has been made without unreasonable delay; (4) if the stay were not granted, substantial loss may result to the applicant or the appeal would be rendered nugatory; and (5) security has been given for due performance of the decree.
Stay of Execution — Likelihood of Success — Non-Frivolous Grounds Sufficient
On an application for stay of execution, the court need not determine whether the grounds of appeal will succeed, but must determine that the appellant has grounds of appeal which are not frivolous. An appeal is considered frivolous if prima facie the grounds are without any reasonable basis in law or equity and cannot be supported by a good faith argument. Grounds relating to re-evaluation of evidence to determine true ownership are arguable and not frivolous.
Stay of Execution — Appeal Rendered Nugatory — Irreversibility Test
Whether an appeal will be rendered nugatory if a stay is not granted depends on whether what is sought to be stayed, if allowed to happen, will be reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved. Where an applicant would be evicted from land before the appeal is heard and the land could be transferred to third parties, maintaining the status quo is warranted so that the Court of Appeal's findings are not futile.
Stay of Execution — Security for Costs — Purpose and Exercise of Discretion
The objective of requiring security for due performance of a decree is not to fetter the right of appeal but to ensure that courts do not assist litigants to delay execution through vexatious and frivolous appeals. The decision to order security must be made in consonance with the probability of success of the appeal. Where an applicant occupies suit land and continues to earn from it to the detriment of the decree holder, security for costs is appropriate.
Inherent Powers — Section 98 Civil Procedure Act — Power to Prevent Abuse and Ensure Justice
The court may invoke its inherent powers under section 98 of the Civil Procedure Act and section 33 of the Judicature Act to proceed and determine an application on its merits so as to ensure that the ends of justice are met, even where procedural issues arise.

Legislation cited (5)

Cases cited (8)

  • Betty Kizito v Dickson Nsubunga & Ors (Miscellaneous Application Nos. 25 and 26 of 2011)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Theodore Sekikubo & Ors v Attorney General & Ors (Supreme Court Miscellaneous Application No. 3 of 2014)
  • Formula Feeds Limited & 3 Ors v KCB Bank Ltd (Miscellaneous Application No. 1647 of 2022)
  • Commissioner Customs Uganda Revenue Authority v Kayimba (Court of Appeal Civil Application No. 62 of 2014)
  • Kyambongo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Civil Application No. 341 of 2013)
  • R v Ajit Singh s/o Vir Singh [1957] EA 822
  • John Baptist Kawanga v Namyalo Kevina & Anor (Miscellaneous Application No. 12 of 2017)

Full judgment

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

Sam_Kiwanuka_Walusimbi_v_Kate_Nakatumba_Kiwala_Tamale_(Miscellaneous_Application_338_of_2024)_[2024]_UGHCLD_349_(15_March_2024)
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.