Waligo and Another v Namuddu (Miscellaneous Application No. 17 of 2021)

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

Application for stay of execution dismissed. The High Court held that the applicants failed to establish that they would suffer irreparable damage that could not be compensated in damages. The intended appeal to the Court of Appeal was a second appeal raising grounds predominantly of fact and evidence already considered, and thus had little likelihood of success. The balance of convenience favoured the respondent who had custody of the children and was being deprived of income from her property.

Outcome

Application for stay of execution dismissed with costs to the respondent

Facts

The respondent filed a divorce petition in the Chief Magistrate's Court of Masaka in 2015, obtaining judgment in January 2017. The applicants appealed to the High Court in Divorce Appeal No. 001 of 2017, which was dismissed with the trial court's orders upheld. The trial court had decreed to the respondent a kibanja purchased at 6,000,000 shillings and ordered that 10 acres at Kikondere be shared between the parties. The applicants filed a further appeal to the Court of Appeal (Civil Appeal No. 05 of 2021). Before that appeal was heard, the respondent filed a bill of costs and a notice to show cause why execution should not issue by vacant possession. The applicants then sought a stay of execution, claiming the first applicant was in occupation of the decreed property and would suffer irreparable damage if evicted. The respondent opposed, stating she had purchased the kibanja solely, had custody of six children, and would continue to suffer if the stay were granted.

Issues

1. Whether the court should grant a stay of execution pending the determination of the applicants' appeal to the Court of Appeal.
2. Whether the applicants demonstrated substantial loss if execution proceeds.
3. Whether the appeal to the Court of Appeal has a likelihood of success.

Orders

• Application dismissed.
• Costs awarded to the Respondent.

Rules and key headnotes

Legislation cited (6)

• Civil Procedure Act s.98
• Judicature Act s.33
• Civil Procedure Rules Order 52 Rules 1, 2 and 3
• Civil Procedure Rules Order 43 Rules 1 and 4(3)
• Civil Procedure Act s.72
• Civil Procedure Act s.74

Cases cited (2)

• Kyambogo University v Prof Isaiah Omolo Ndiege (Miscellaneous Civil Application No. 341 of 2013)
• Tropical Commodities Suppliers Ltd and Others v International Credit Bank Ltd (In Liquidation) [2004] 2 EA 331

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