Wakilii

Walusimbi v Musenze (H.C.Miscellaneous Application No. 232 of 2018)

High Court · [2021] UGHC 15 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of High Court decree pending appeal to Court of Appeal
Decision
Application for stay of execution dismissed; respondent entitled to execute the High Court decree

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court dismissed the application for stay of execution. The applicant failed to satisfy two essential conditions under Order 43 rule 4(3) of the Civil Procedure Rules: he did not demonstrate substantial loss beyond vague and general assertions, and he did not furnish or commit to furnish security for due performance of the decree. The court held that without meeting these mandatory requirements, the successful party should not be deprived of the fruits of her judgment.

Outcome

Application for stay of execution dismissed; respondent entitled to execute the High Court decree

Facts

The applicant Walusimbi Mustafa was the defendant in a suit concerning ownership of property at Wampala LCI Zone, Njeru West Parish, Nyenga Sub County, Buikwe District. The trial magistrate's court ruled in his favour and ordered the plaintiff Musenze Lukia to vacate. Musenze appealed to the High Court, which reversed the trial court's decision and ordered that Musenze take over the suit land and the house on it. Walusimbi filed a notice of appeal to the Court of Appeal and brought this application seeking a stay of execution of the High Court decree. He claimed that Musenze intended to evict him and his tenants, which would cause him substantial loss and render his appeal nugatory. Musenze opposed the application, arguing that Walusimbi had not shown how execution would negate his appeal, had not furnished security, and that she was in possession of the land before the matter went to court.

Issues

  1. Whether the applicant satisfied the conditions for a stay of execution of the High Court decree pending appeal to the Court of Appeal.

Orders

  • Application dismissed.
  • Costs awarded to the respondent, Lukiya Musenze.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant — Substantial Loss
An applicant seeking a stay of execution pending appeal must demonstrate substantial loss beyond vague and general assertions. Substantial loss refers to loss of real worth or value as distinguished from loss that is merely nominal, and must be assessed in light of the particular facts of each case. The applicant must show how and when the intended execution will occur and the particular loss that will result.
Civil Procedure — Stay of Execution — Security for Due Performance — Mandatory Requirement
Under Order 43 rule 4(3) of the Civil Procedure Rules, it is a mandatory requirement that an applicant for stay of execution must furnish security for due performance of the decree. The court cannot assume that an applicant intends to commit to furnishing security where no such commitment appears in the application or supporting affidavit, and cannot determine a fair amount in the absence of such commitment.
Civil Procedure — Stay of Execution — General Principle — Preservation of Appeal
Where an unsuccessful party exercises their right to appeal, it is the duty of the court to make such order for staying proceedings as will prevent the appeal from being rendered nugatory. However, the established rule under Order 43 rules 1 and 2 of the Civil Procedure Rules is that an appeal does not automatically operate as a stay of execution except where otherwise ordered by the court, and the successful party should not without good reason be deprived of the fruits of a judgment in their favour.

Legislation cited (8)

  • Civil Procedure Act s.98
  • Civil Procedure Rules O.34
  • Civil Procedure Rules O.52 rr.1 and 3
  • Civil Procedure Rules O.43 rr.1
  • Civil Procedure Rules O.43 rr.2
  • Civil Procedure Rules O.43 rr.3
  • Civil Procedure Rules O.43 rr.4(2)
  • Civil Procedure Rules O.43 rr.4(3)

Cases cited (10)

  • Wilson v Church (1879) 12 Ch D 454
  • Global Capital Save 2004 Ltd and Another v Alice Okiror and Another (H.C. Miscellaneous Application No. 485 of 2012)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Francis M. Micah Vrs Nuwa Walakira (1992-93) HCB 88
  • Hon. Theodore Ssekikubo and Others v Attorney General and Another (Constitutional Application No. 6 of 2013)
  • Nalwoga v Edco Ltd and Another (Miscellaneous Application No. 7 of 2013)
  • Andrew Kisawuzi v Dan Oundo Malingu (H.C. Miscellaneous Application No. 467 of 2013)
  • Tropical Commodities Suppliers Ltd and Ors Vs International Credit Bank Ltd (In Liquidation) (2004)2 EA 331
  • V.G. Keshwala & Sons Ltd v Ronald Musisi (Miscellaneous Application No. 544 of 2016)
  • Kampala Bottlers Ltd v Uganda Bottlers (Supreme Court Civil Appeal No. 25 of 1995)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Walusimbi v Musenze (H.C.Miscellaneous Application No. 232 of 2018) [2021] UGHC 15 (2 February 2021)
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.