Topista & Jesus Holdings (U) Limited and Others v Exim Bank Uganda Limited (Civil Application No. 583 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A single Justice of the Court of Appeal dismissed an application for stay of execution of a partial summary decree. While the Court rejected the respondent's objection on the late Memorandum of Appeal (because Rule 6(2) only requires compliance with Rule 76 governing the Notice of Appeal), it found the Notice of Appeal had been filed beyond the mandatory 14-day period under Rule 76(2). The Court further upheld the objection that the applicants had not exhausted a pending High Court stay application, having abandoned it in favour of mediation without demonstrating frustration by the lower court. Having sustained the preliminary objections, the Court declined to consider the merits and dismissed the application with costs.

Outcome

Application for stay of execution dismissed with costs in the cause

Facts

The applicants were sued by Exim Bank Uganda Limited for recovery of monies arising from a credit facility advanced to the first applicant, by summary procedure under Order 36 of the Civil Procedure Rules in HCCS No. 918 of 2022. The applicants' consolidated applications for unconditional leave to defend were partially granted, and a partial summary decree of UGX 10,651,737,494 was entered against them, with leave to defend the remaining claim. The respondent then sought execution by attachment and sale of property described as Kibuga Block 244 Plot 541 land at Kisugu, advertised for public auction. The applicants had filed High Court applications (Nos. 502 and 625 of 2023) for stay and interim stay of execution which remained undetermined, and a Civil Appeal (No. 218 of 2024) pending in the Court of Appeal. Facing imminent sale, the applicants brought this application to the Court of Appeal for stay of execution.

Issues

1. Whether there is a valid appeal before the Court given that the Notice of Appeal and Memorandum of Appeal were allegedly filed out of time.
2. Whether the applicants ought to have first exhausted the pending application for stay of execution in the High Court before applying to the Court of Appeal.
3. Whether the applicants satisfied the conditions for the grant of a stay of execution pending appeal.

Orders

• The preliminary objections are upheld.
• The application is dismissed.
• Costs in the cause.

Rules and key headnotes

Legislation cited (9)

• Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.6(2)(b)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.42
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.43
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.44(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.76(2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.83(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.88(1)
• Civil Procedure Rules Order 36 Rule 3

Cases cited (3)

• Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
• Kyambogo University v Prof. Isaiah Omolo Ndiege (Miscellaneous Civil Application No. 341 of 2013)
• Lubega & Another v Ssinabulya & 2 Others (Civil Application No. 10 of 2024)

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