Wakilii

Senkungu v Mukasa (Miscellaneous Application 5 of 2013)

Supreme Court · [2013] UGSC 9 · 2013 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for an interim order staying execution of a decree pending determination of a substantive application for extension of time and stay of execution
Decision
Interim order staying execution granted for 30 days pending the hearing of Civil Application No. 4 of 2013

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the applicants satisfied the two-part test for an interim stay of execution: a substantive application (Civil Application No. 4 of 2013 for extension of time and stay of execution) was pending, and a serious threat of execution existed now that the decree had been signed. The court found the existence of the substantive application was in fact averred in the Notice of Motion and the supporting affidavit, contrary to the respondent's contention. Although the court accepted there had been dilatory conduct by the applicants' counsel, it declined to penalise the applicants for their counsel's actions. The application was allowed and an interim order granted for 30 days, with costs to the respondent.

Outcome

Interim order staying execution granted for 30 days pending the hearing of Civil Application No. 4 of 2013

Facts

The applicants had filed a Notice of Appeal in the Court of Appeal on 30 July 2010 against the judgment in Court of Appeal Civil Appeal No. 36 of 2010 but inadvertently failed to file a Notice of Appeal in the Supreme Court. They subsequently filed Civil/Misc. Application No. 4 of 2013 seeking extension of time to file the Notice of Appeal and a stay of execution. The decree in the Court of Appeal matter had not been extracted in time owing to an application filed by the respondent, but had since been signed. Apprehending that the respondent intended to execute the decree, the applicants sought an interim order to stay execution pending determination of Application No. 4 of 2013.

Issues

  1. Whether the applicants satisfied the two-part test for the grant of an interim order of stay of execution, namely that a substantive application is pending and that there is a serious threat of execution.
  2. Whether the failure to expressly aver the existence of a pending substantive application was a fatal omission incapable of being cured by submissions from the bar.
  3. Whether the applicants' dilatory conduct disentitled them to the court's exercise of discretion in their favour.

Orders

  • An interim order staying execution of the Decree is granted to last for a period of 30 days from the date of issue of this order.
  • The applicants are ordered to take the necessary steps to move the Registrar to fix Civil Application No. 4 of 2013 before the interim order expires.
  • If the Court is not able to fix the hearing of Civil Application No. 4 of 2013 within 30 days, the interim order will automatically extend to the date when the hearing is fixed by the Court.
  • The applicants will be at liberty to seek extension of the order staying execution of the Decree when the hearing of Civil Application No. 4 of 2013 commences.
  • Costs of this application are awarded to the respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Two-part test for interim order
An interim order of stay of execution may be granted where the applicant satisfies the court that a substantive application is pending before it and that there is a serious threat of execution of the decree before the hearing of that substantive application.
Civil Procedure — Pleadings — Averment of pending substantive application
The existence of a pending substantive application supporting an interim stay must be averred in the Notice of Motion and supporting affidavit; where such averment is in fact made, the respondent's objection that the existence of the application was asserted only from the bar must fail.
Civil Procedure — Discretion — Dilatory conduct of counsel
A court may decline to penalise litigants for the dilatory conduct of their counsel, and the existence of an application by an opposing party in a lower court does not justify delay since Rule 86(3) of the Rules of the Supreme Court permits an appellant to file a supplementary record of appeal at any time.

Legislation cited (7)

  • Judicature (Supreme Court) Rules r.2(2)
  • Judicature (Supreme Court) Rules r.5
  • Judicature (Supreme Court) Rules r.40(1)
  • Judicature (Supreme Court) Rules r.41
  • Judicature (Supreme Court) Rules r.42
  • Judicature (Supreme Court) Rules r.43
  • Judicature (Supreme Court) Rules r.86(3)

Cases cited (3)

  • Margaret Kato and Another v Nulu Nalwoga (Supreme Court Miscellaneous Application No. 11 of 2011)
  • Kitende Kalibogha and 2 Others v Eleonora Wisemire (Supreme Court Civil Application No. 6 of 2010)
  • Hwan Sung Industries Ltd v Tajdin Hussein and Others (Supreme Court Civil Application No. 19 of 2008)

Full judgment

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

Senkungu v Mukasa (Miscellaneous Application 5 of 2013) [2013] UGSC 9 (27 September 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.