Wakilii

Wandera v Baguma (HCT-01-CV-CS 36 of 2021)

High Court · [2023] UGHCCD 110 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from an earlier judgment in HCT-01-CV-CS-LD 0039 of 2013
Decision
Stay of execution granted conditional upon the applicant depositing security for due performance of the decree within 3 months

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted a stay of execution of a decree for UGX 45,000,000, subject to the applicant depositing security for due performance of the decree within three months. The court held that all statutory conditions under Order 43 rule 4(3) of the Civil Procedure Rules were satisfied: a notice of appeal was properly lodged, substantial loss would result from execution proceeding, there was an imminent threat of execution, and the application was made without unreasonable delay. The court required security to protect the judgment creditor while balancing the applicant's right to prosecute the appeal.

Outcome

Stay of execution granted conditional upon the applicant depositing security for due performance of the decree within 3 months

Facts

The applicant was the defendant in HCT-01-CV-CS-LD 0029 of 2013 in which judgment was delivered on 7 December 2020 in favour of the plaintiff (now the respondent) for UGX 45,000,000 being the respondent's share, payable within 6-8 months, thereafter accruing commercial interest. The applicant filed a notice of appeal on 18 December 2020 and requested a typed record of proceedings. The respondent extracted the decree and commenced taxation. A bill of costs was taxed and a notice to show cause was issued on 25 May 2021. The Assistant Registrar temporarily stayed execution by order dated 22 March 2022 pending determination of this application. The applicant sought stay of execution pending appeal.

Issues

  1. Whether a stay of the decree in HCT-01-CV-LD-CS 0029 of 2013 should be granted
  2. What remedies are available

Orders

  • Application granted
  • Execution of the decree in HCT-01-LD-CS-0029 of 2013 stayed subject to the applicant depositing in court UGX 45,000,000 as security for due performance of the decree within 3 months from 27 March 2023
  • In default of depositing security, execution shall issue against the applicant

Rules and key headnotes

Civil Procedure — Stay of Execution — Proof of Lodgment of Appeal — Notice of Appeal as Sufficient Expression of Intention
A notice of appeal is a sufficient expression of an intention to file an appeal and such action is sufficient to found the basis for grant of orders of stay in appropriate cases. Where a notice of appeal is lodged within the fourteen days provided under rule 76(1) of the Court of Appeal Rules, this constitutes sufficient proof that an appeal is competently lodged.
Civil Procedure — Stay of Execution — Conditions for Grant — Substantial Loss
Substantial loss for purposes of stay of execution need not be determined by a mathematical formula yielding any particular amount. Substantial loss represents actual loss, whether great or small, as opposed to nominal damages. Where execution of a decree would render an appeal nugatory, substantial loss is established.
Civil Procedure — Stay of Execution — Security for Due Performance of Decree — Court's Discretion
The requirement to deposit security for costs should not be used as a punishment to the applicant or as a mechanism to frustrate the appeal by ordering security which the applicant may not be able to pay. Courts must make an independent assessment of the facts and the parties before ordering security for costs. At the same time, a stay of execution should not be used to delay or deny a successful party the fruits of their judgment.
Civil Procedure — Stay of Execution — Conditions under Order 43 Rule 4(3) — Cumulative Requirements
Before a stay of execution is granted under Order 43 rule 4(3) of the Civil Procedure Rules, an applicant must satisfy three cumulative conditions: that substantial loss may result unless the order is made; that the application has been made without unreasonable delay; and that security has been given for due performance of the decree. Additionally, there must be proof of lodgment of an appeal and a serious and imminent threat of execution.

Legislation cited (5)

Cases cited (15)

  • Mugenyi & Co. Advocates v National Insurance Corporation (Supreme Court Civil Application No. 12 of 1984)
  • Francis Nansio Micah v Nuwe Warakira (Supreme Court Civil Application No. 9 of 1990)
  • The New Vision Publishing Corporation & 2 others v Peter Kagwa (2007) KALR 391
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Dr. Ahmed Muhammed Kisule v Greenland Bank (in Liquidation) (Supreme Court Civil Application No. 7 of 2010)
  • Kyambogo University v Prof. Isiah Omolo Ndiege (Court of Appeal Civil Application No. 341 of 2013)
  • Attorney General of the Republic of Uganda v The East African Law Society & Another (East African Court of Appeal Application No. 1 of 2013)
  • Equity Bank Uganda Ltd v Nicholas Were (Miscellaneous Application No. 604 of 2013)
  • Tropical Commodities Suppliers Ltd & 2 Others v International Credit Bank Ltd (In Liquidation) (Miscellaneous Application No. 379 of 2003)
  • Shem Mpanga Mukasa & Anor v Kizza Clessy Barya (Miscellaneous Application No. 479 of 2021)
  • Kisaalu Joseph & 10 others v Nakintu May & Anor (Miscellaneous Application No. 105 of 2020)
  • Tropical Commodities Supplies Ltd and others v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)
  • Amon Bazira v Maurice Pater Kagimu (High Court Land Division Miscellaneous Application No. 1138 of 2016)
  • The New Vision Publishing Corporation & 2 others v Peter Kaggwa (High Court Miscellaneous Application No. 127 of 2006)

Full judgment

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Wandera v Baguma (HCT-01-CV-CS 36 of 2021) [2023] UGHCCD 110 (27 March 2023)
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.