Wakilii

V.G Keshwala & Sons Limited v Musisi (CIVIL SUIT NO. 392 OF 2013)

High Court · [2018] UGHCCD 106 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of decree pending appeal to Court of Appeal
Decision
Stay of execution granted conditional upon deposit of security of UGX 20,000,000 within 14 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An application for stay of execution pending appeal may be granted even where the notice of appeal was filed outside the statutory period, as the High Court's jurisdiction under Order 43 CPR does not make a valid appeal a precondition for staying execution. It is sufficient that the decree is appealable and the application is filed within prescribed time. The Court has discretion to determine the form and quantum of security to be furnished, balancing the need to preserve the status quo pending appeal against the successful party's right to enjoy the fruits of judgment.

Outcome

Stay of execution granted conditional upon deposit of security of UGX 20,000,000 within 14 days

Facts

Judgment was delivered on 30 September 2016 in Civil Suit No. 14 of 2013 in favour of the respondent for UGX 46,240,000. The applicant was not served with notice of the judgment and only learned of it through a letter from the respondent's counsel dated 28 October 2016. The applicant filed a notice of appeal on 9 November 2016 and this application for stay of execution on 15 November 2016. Execution proceedings had commenced on 9 November 2016 with attachment of the applicant's motor vehicle valued at UGX 55,000,000. The respondent contended that the notice of appeal was filed outside the statutory period under Rule 76 of the Court of Appeal Rules.

Issues

  1. Whether the applicant's application for stay of execution pending appeal was filed within reasonable time.
  2. Whether the applicant must have filed a valid notice of appeal as a precondition for High Court to grant stay of execution.
  3. Whether the applicant satisfied the conditions for stay of execution under Order 43 of the Civil Procedure Rules.
  4. What security, if any, should be furnished by the applicant for due performance of the decree.

Orders

  • Application allowed on condition that the applicant deposits a sum of UGX 20,000,000 in Court as security for costs within 14 days of the date of this order.
  • Failing to deposit security within 14 days, the order shall lapse and the respondent shall be at liberty to proceed with execution of the decree.
  • Costs of the application awarded to the respondent in any event.

Rules and key headnotes

Civil Procedure — Stay of Execution — Preconditions for Grant — Whether Valid Notice of Appeal Required
The provisions of Order 43 of the Civil Procedure Rules do not make the presence of a valid appeal a precondition for the High Court to exercise its powers to stay execution. It is sufficient that the decree in question is appealable and that the application is filed within the prescribed time.
Civil Procedure — Stay of Execution — Validity of Notice of Appeal — Jurisdiction
It is not for the High Court to pronounce on the validity or otherwise of a notice of appeal. Under the Court of Appeal Rules, the mandate of the High Court is restricted to receiving, endorsing and transmitting the notice to the Court of Appeal. The powers to strike out a notice of appeal are restricted to the Court of Appeal under Rule 82 of the Judicature (Court of Appeal) Rules upon application of the respondent.
Civil Procedure — Stay of Execution — Substantial Loss — Meaning and Assessment
Substantial loss does not represent any particular amount or size and cannot be quantified by any particular mathematical formula. It refers to any loss, great or small, that is of real worth or value as distinguished from loss without value or that which is merely nominal.
Civil Procedure — Stay of Execution — Security for Due Performance — Form and Quantum
The Court has discretion to determine the form and quantum of security to be furnished by an applicant for stay of execution. More recent decisions have modified the condition under Order 43 CPR to mean furnishing security for costs only rather than the full decretal sum, to avoid the likelihood of stifling appeals which are statutory rights. However, this does not fetter the Judge's discretion to allow stay of execution with conditions that suit the circumstances of each case.

Legislation cited (7)

Cases cited (7)

  • Wilson v Church (1879) 12 Ch D 454
  • Global Capital Save 2004 Ltd & Another v Alice Okiror & Another (HCMA No. 485 of 2012)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (SCCA No. 18 of 1990)
  • Hon. Theodore Ssekikubo & Others v The Attorney General & Another (Constitutional Application No. 06 of 2013)
  • Nalwoga v Edco Ltd & Another (MA No. 07 of 2013)
  • Tropical Commodities Suppliers Ltd & Ors v International Credit Bank Ltd (In Liquidation) (2004) 2 EA 331
  • Kampala Bottlers Ltd v Uganda Bottlers (SCCA No. 25 of 1995)

Full judgment

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V.G Keshwala & Sons Limited v Musisi (CIVIL SUIT NO. 392 OF 2013) [2018] UGHCCD 106 (6 July 2018)
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.