Wakilii

Tibananuka v Masindi Municipal Concil and Another (Miscellaneous Application 109 of 2022)

High Court · [2024] UGHC 578 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal to Court of Appeal following striking out of suit with costs order
Decision
Application for stay of execution dismissed with costs to the respondent

Observed later treatment

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Holding

Application for stay of execution pending appeal dismissed. Applicant satisfied requirements of filing notice of appeal and applying without unreasonable delay. However, applicant failed to prove substantial loss, likelihood of success on appeal, or provide security for due performance of decree as required under Order 43 Rule 4(3)(c) of the Civil Procedure Rules. The mandatory nature of these conditions meant the court had no option but to dismiss the application.

Outcome

Application for stay of execution dismissed with costs to the respondent

Facts

The applicant sued the second respondent in HCCS No. 0070 of 2017 but incorrectly named the entity on the pleadings, writing 'Masindi Revival Explosion Ministries International' without the word 'Limited' and adding 'Masindi'. When the matter came up for hearing, counsel Magoola Miriam raised a preliminary objection that the second respondent was a non-existent entity. The learned trial judge struck out the suit against the second respondent with costs to counsel Magoola Miriam. Dissatisfied with the award of costs to counsel of a non-existent person, the applicant filed a notice of appeal to the Court of Appeal on 17 June 2022, the day after the order was made on 16 June 2022. The applicant requested certified typed proceedings and filed this application for stay of execution on 7 September 2022.

Issues

  1. Whether the applicant has lodged a notice of appeal.
  2. Whether the applicant will suffer substantial loss if execution is not stayed.
  3. Whether there is a likelihood of success in the applicant's pending appeal.
  4. Whether the applicant has given security for the due performance of the decree.
  5. Whether the application has been made without unreasonable delay.

Orders

  • Application for stay of execution dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions to be Satisfied Under Order 43 Rule 4(3) CPR
An applicant seeking a stay of execution must satisfy all mandatory conditions under Order 43 Rule 4(3) of the Civil Procedure Rules: that substantial loss may result unless stay is granted; that the application has been made without unreasonable delay; and that security has been given for the due performance of the decree or order. Failure to satisfy these conditions leaves the court with no option but to dismiss the application.
Civil Procedure — Stay of Execution — Meaning of Substantial Loss
The phrase 'substantial loss' does not represent any particular amount or size and cannot be qualified by any mathematical formula. It refers to any loss, great or small, of real worth or value as distinguished from a loss that is merely nominal. The applicant must prove the existence and nature of the loss they will suffer if execution is not stayed.
Civil Procedure — Stay of Execution — Requirement of Security for Costs
Security must be given for the due performance of the decree as a mandatory condition for granting a stay of execution. The requirement for payment of security for costs is to ensure that a losing party does not intentionally delay execution while hiding behind unnecessary applications. This requirement applies even where the underlying order relates to costs.
Civil Procedure — Stay of Execution — Absence of Threat of Execution
Courts should not order a stay of execution where there is no evidence of an application to execute a decree. Once an appeal is pending and there is a serious threat of execution before the appeal hearing, the court intervenes to serve the purpose of substantive justice. A party who has obtained a lawful decree should not be deprived of the fruits of that decree except for good cause and cogent reasons.

Legislation cited (6)

Cases cited (11)

  • John Baptist Kawanga v Namyalo Kevira and Another (Miscellaneous Application No. 0012 of 2017)
  • Steve Sahabo v Larissa Kaneza (Miscellaneous Application No. 0524 of 2019)
  • Tropical Commodities Supplies Ltd & 2 Others V International Credit Bank Ltd
  • Singh v Runda Coffee Estates Ltd [1966] EA
  • Tugumisirize and Another v Mawanda and 3 Others (Miscellaneous Application No. 0673 of 2021)
  • Lawrence Musiitwa Kyazze v Eunice Businge (Supreme Court Civil Application No. 18 of 1990)
  • Hon Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 003 of 2014)
  • Hwang Sung Industries Ltd v Tajuddin Hussein and Others (Supreme Court Civil Appeal No. 079 of 2008)
  • Baguma Paul Panache Associates v Eng. Karuma Kagyina (Miscellaneous Application No. 0460 of 2020)
  • Orient Bank Ltd v Zaabwe and Others (Miscellaneous Application No. 0019 of 2007)
  • Ujagar Singh v Runda Coffee Estates Ltd [1966] EA 263

Full judgment

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

Tibananuka v Masindi Municipal Concil and Another (Miscellaneous Application 109 of 2022) [2024] UGHC 578 (30 April 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.