Sserubiri and 2 Others v Salama and 2 Others (Civil Application 185 of 2023)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

A single Justice of the Court of Appeal dismissed an application for a stay of execution pending appeal. The Court restated that a stay is discretionary and that an applicant must show a likelihood of success of the appeal, a threat of substantial loss, where the balance of convenience lies, that the application was made without delay, and provision of security for due performance of the decree. Although the memorandum of appeal raised triable issues and the application was filed without delay, the applicants adduced no evidence of substantial loss and had provided no security; mere assertions are not evidence. The respondents' preliminary objection to the affidavit was overruled. The application was dismissed, costs to abide the outcome of the appeal.

Outcome

Application for stay of execution dismissed; costs to abide the outcome of the appeal

Facts

The applicants sought a stay of execution pending an appeal arising from proceedings in Civil Suit No. 314 of 2019, in which a default judgment had been entered against them after they took two years without responding to the claim. Their application to set aside the default judgment was dismissed, as was an earlier stay application (Miscellaneous Application No. 74 of 2023) on 27 April 2023. The respondents had secured a warrant of arrest from the High Court connected to the decree, which the applicants contended constituted an imminent threat of execution that, if carried out, would render the appeal nugatory and cause them substantial loss. The respondents maintained that the applicants led no evidence of an imminent threat of execution or of substantial loss, had not shown willingness to give security for due performance of the decree, and that the application was an abuse of court process.

Issues

1. Whether the respondents' preliminary objection that the affidavit in reply was defective for non-compliance with section 6 of the Oaths Act should be upheld.
2. Whether the applicants satisfied the conditions for the grant of a stay of execution pending appeal.

Orders

• This application is dismissed.
• Costs shall abide by the outcome of the appeal.

Rules and key headnotes

Legislation cited (9)

• Judicature (Court of Appeal) Rules SI 13-10 r.2(2)
• Judicature (Court of Appeal) Rules SI 13-10 r.6(2)(b)
• Judicature (Court of Appeal) Rules SI 13-10 r.42
• Judicature (Court of Appeal) Rules SI 13-10 r.43
• Oaths Act s.6
• Evidence Act Cap 6 s.101
• Civil Procedure Rules Order 9 r.6
• Civil Procedure Rules Order 9 r.12
• Civil Procedure Rules Order 44

Cases cited (6)

• Osman Kassim Ramadhan v Century Bottling Company Ltd (Civil Application No. 35 of 2019)
• Kyambogo University v Prof. Isiah Omolo Ndiege (Civil Application No. 341 of 2013)
• Teddy Sseezi Cheeye and Another v Enos Tumusiime (Civil Application No. 21 of 1996)
• Absalom Dova v Tarbo Transporters [2013] eKLR
• RWW v EKW [2019] eKLR
• Tropical Commodities Supplies Ltd and Others v International Credit Bank Ltd (in Liquidation) [2004] 2 EA 331

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Jenniffer K. Musoke and Another v Tropical Bank Limited (Civil Reference 31 of 2024)
• Hon. Hajji Mohammed Kato Katoto v Justus Kyabahwa (Civil Application No. 1168 of 2023)

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