Tigambirwa v Kazooba (HCT-01-CV-MA 68 of 2024)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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

The High Court granted a stay of execution pending appeal from Magistrate's Court orders dismissing the applicant's applications to set aside earlier dismissal orders. The court found that an appeal from an order rejecting an application under Order 9 rule 23 is appealable as of right under Order 44 rule 1(b) and no leave was required. Substantial loss would result if execution proceeded because the applicant would be compelled to pay taxed costs totalling 21,494,000 shillings before the appeal challenging those orders could be heard. The court ordered security for costs at 20% of the taxed bill (4,298,800 shillings) and directed the applicant's immediate release from civil prison to enable compliance and pursuit of his appeal.

Outcome

Stay of execution granted on condition that applicant pays security for costs within 60 days; applicant released from civil prison

Facts

The applicant was defendant in Civil Suit No. 210 of 2012 where judgment was entered against him. He claimed he was never served and only learned of the suit when his property was advertised for sale. He instructed counsel to file Misc. Application No. 89 of 2013 to set aside default judgment, but it was dismissed for non-attendance. The applicant's property at Plot 43, Queens Road, Kagote was sold through execution. He later filed Misc. Application No. 75 of 2018 to set aside the dismissal order, which was also dismissed. He then filed another application (Misc. Application No. 89 of 2013 for reinstatement) which was dismissed on 14 May 2024. The applicant filed Civil Appeal No. 24 of 2024 to the High Court challenging these dismissal orders. A notice to show cause was issued requiring him to pay taxed costs of shs 21,494,000/= with execution scheduled for 4 September 2024. He was arrested and committed to civil prison. He filed this application for stay of execution on 3 September 2024.

Issues

1. Whether the applicant lodged a competent appeal
2. Whether substantial loss would result to the applicant unless a stay of execution is ordered
3. Whether there is a serious and imminent threat of execution
4. Whether the application was made without unreasonable delay
5. Whether the applicant should provide security for due performance of the decree

Orders

• Stay of execution of the orders in Fort Portal Misc. Application No. 76 of 2018, 75 of 2018 and 89 of 2013 granted until determination of Civil Appeal No. 24 of 2024.
• Stay of execution conditional upon the applicant paying 20% of the taxed costs (shs 4,298,800/=) as security for costs within 60 days from the date of delivery of this ruling, failing which the order shall automatically lapse.
• Applicant to be released immediately from civil prison to enable compliance with the security for costs order and to pursue Civil Appeal No. 24 of 2024. Should the applicant fail to pay security, the release order shall also automatically lapse.
• Misc. Application No. 69 of 2024 for interim stay and Misc. Application No. 88 of 2024 for release of the applicant dismissed with no orders as to costs as they are rendered redundant by the determination of this application.
• Costs of this application to abide the outcome of Civil Appeal No. 24 of 2024.

Rules and key headnotes

Legislation cited (8)

• Civil Procedure Act s.79(1)
• Civil Procedure Act s.98
• Civil Procedure Rules Order 43 rule 4(1)
• Civil Procedure Rules Order 43 rule 4(2)
• Civil Procedure Rules Order 43 rule 4(3)
• Civil Procedure Rules Order 43 rule 1
• Civil Procedure Rules Order 9 rule 23
• Civil Procedure Rules Order 44 rule 1(b)

Cases cited (13)

• Kyambogo University v Omolo (Court of Appeal Civil Application No. 341 of 2013)
• Kisule v Greenland Bank (in Liquidation) (Supreme Court Civil Application No. 7 of 2010)
• Kyazze v Busingye (Supreme Court Civil Application No. 18 of 1990)
• Attorney General v East African Law Society & Another (EACA Application No. 1 of 2013)
• Equity Bank Uganda Ltd v Were (Misc. Application No. 604 of 2013)
• Tropical Commodities Suppliers Ltd & Others v International Credit Bank Ltd (in Liquidation) (Misc. Application No. 379 of 2003)
• Formual Feeds Ltd & Others v KCB Bank Ltd (HCMA No. 1647 of 2022)
• Mukasa & Another v Barya (Misc. Application No. 479 of 2021)
• Kisaalu & Others v Nakintu & Another (Misc. Application No. 105 of 2020)
• Tropical Commodities Supplies Ltd & Others v International Credit Bank Ltd (in Liquidation) [2004] 2 EA 331
• DFCU Bank Ltd v Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)
• Bazira v Kagimu (Land Division Misc. Application No. 1138 of 2016)
• New Vision Publishing Corporation & Others v Kaggwa (HCMA No. 127 of 2006)

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