Wakilii

Tibamwenda and 2 Others v Kachurokabo (Miscellaneous Application 41 of 2024)

High Court · [2024] UGHC 1036 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of decree in Land Civil Suit No. 026 of 2017 pending determination of Civil Appeal No. 14 of 2024
Decision
Application granted with conditions; illegal execution set aside and stay of execution issued pending appeal

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, finding that the applicants satisfied all the requirements under Order 43 Rule 4(3) of the Civil Procedure Rules. The respondent had forcefully entered the suit land without following due court process, posing a serious threat to the applicant's cocoa developments and risking disposal of the land before the appeal's conclusion. The court set aside the irregular execution and stayed the decree on condition that the second applicant deposits security for costs of UGX 2,000,000 within three months.

Outcome

Application granted with conditions; illegal execution set aside and stay of execution issued pending appeal

Facts

The second applicant received a decree in Land Civil Suit No. 026 of 2017 on 8 May 2024 granting vacant possession of his land to the respondent. The applicants filed an appeal (Civil Appeal No. 14 of 2024) and sought stay of execution. The respondent, with the assistance of the Resident District Commissioner and local leaders, forcefully entered the suit land and cordoned off portions, cutting down the applicant's fence and cocoa plantation. The applicants claimed ownership based on purchase agreements from vendors still alive, while the respondent asserted the land contained family graves. The respondent filed a bill of costs of UGX 14,450,000 and a notice to show cause why a warrant of arrest should not issue, indicating ongoing execution proceedings. The second applicant had been in possession and cultivating cocoa on the land since 2003.

Issues

  1. Whether the applicants have demonstrated sufficient cause to warrant grant of an order of stay of execution of the decree in Civil Suit No. 026 of 2017.
  2. What remedies are available to the parties?

Orders

  • An order is hereby issued setting aside the illegal execution conducted by the Resident District Commissioner (RDC) and the local leadership by which the Respondent was put into possession of the suit land.
  • An order of stay of execution of the decree of Court in Land Civil Suit No. 026 of 2017 is hereby issued.
  • The stay of execution herein is granted on condition that the 2nd applicant deposits in court security for costs of shs 2,000,000/= within three (3) months from the date of delivery of this ruling.
  • In the event that the security for costs as ordered herein is not paid, the order staying execution shall automatically lapse.
  • The costs of this application are granted to the applicants in the cause.

Rules and key headnotes

Civil Procedure — Stay of Execution — Lodgment of Appeal as Precondition
A party seeking stay of execution must first prove lodgment of an appeal in the appellate court by filing a notice of appeal and memorandum of appeal before the court can consider granting the stay.
Civil Procedure — Stay of Execution — Prima Facie Case on Appeal
To grant stay of execution, the court need not determine the merits of the appeal but must be satisfied that the appeal raises issues which merit consideration by the appellate court, establishing a prima facie case or likelihood of success.
Civil Procedure — Execution of Decrees — Due Process Requirements
Orders of court must be executed through due court process to avoid execution beyond what is decreed or in a manner other than that ordered by court; forceful entry into possession with assistance of administrative officials without following court procedures constitutes irregular execution that may be set aside.
Civil Procedure — Stay of Execution — Threat of Execution
Filing a bill of costs constitutes a step towards execution and poses a threat of execution sufficient to ground an application for stay; a notice to show cause why a warrant of arrest should not issue also evidences imminent threat of execution.
Civil Procedure — Stay of Execution — Substantial Loss
Substantial loss extends beyond monetary loss to include loss a party will suffer if deprived of property or developments thereon; risk of crops on land being destroyed or sold and risk of land being disposed of before appeal determination constitute substantial loss warranting stay of execution.
Civil Procedure — Stay of Execution — Security for Costs vs Security for Decree
Courts have been reluctant to order security for the entire decretal amount (security for due performance) and instead order security for costs, as requiring the entire decretal amount is likely to stifle appeals; security for costs operates as insurance to indemnify the judgment creditor if the appeal fails.
Civil Procedure — Stay of Execution — Balance of Convenience and Greater Hardship
Where a respondent has forcefully entered land without following due process of court and threatens developments on the land which may be destroyed or lost before appeal determination, allowing the respondent to remain would cause greater hardship than refusing the stay would avoid, warranting grant of the stay order.

Legislation cited (9)

Cases cited (14)

  • Kyazze v Busingye (Supreme Court Civil Application No. 18 of 1990)
  • Erin Properties Ltd Vs. Cheshire County Council, (1974) 2 ALLER 448
  • Walusimbi v Musenze (Miscellaneous Application No. 232 of 2018)
  • Kisule v Greenland Bank (Supreme Court Civil Application No. 7 of 2010)
  • Kyambogo University v Ndiege (Court of Appeal Civil Application No. 341 of 2013)
  • Ssekikubo and Others v Attorney General (Constitutional Application No. 6 of 2013)
  • Formular Feed Ltd and 3 Others v KCB Bank (High Court Miscellaneous Application No. 1647 of 2022)
  • Sietco v Noble Builders (U) Ltd (Supreme Court Civil Appeal No. 31 of 1994)
  • Tropical Commodities Supplies Ltd & others v International Credit Bank Ltd (in Liquidation) [2004] 2 E.A 331
  • Formular Feeds Ltd and 3 Others v KCB Bank Ltd (High Court Miscellaneous Application No. 1647 of 2022)
  • Mukasa and Another v Barya (Miscellaneous Application No. 479 of 2021)
  • Kisaalu and 10 Others v Nakintu and Another (Miscellaneous Application No. 105 of 2020)
  • DFCU Bank Ltd v Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)
  • Bazira v Kagimu (High Court Land Division Miscellaneous Application No. 1138 of 2016)

Full judgment

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

Tibamwenda and 2 Others v Kachurokabo (Miscellaneous Application 41 of 2024) [2024] UGHC 1036 (30 October 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.