Wakilii

Wandira Simon v Mutagula Moses (Miscellaneous Application 242 of 2024)

High Court · [2025] UGHC 995 · 2025 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from Chief Magistrate's Court judgment
Decision
Stay of execution granted pending appeal, conditional on deposit of half the taxed costs within 30 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the application for stay of execution pending appeal. The court found that the applicant had filed a notice of appeal and memorandum of appeal, though out of time, and had also filed an application for extension of time. The court held that substantial loss would result to the applicant if execution proceeded, as he occupied the suit land and derived his livelihood from it. There was an imminent threat of execution evidenced by a warrant of arrest. Although the application was filed four months after judgment, the delay was not unreasonable given the circumstances. The court ordered the applicant to deposit half the taxed costs within 30 days as security.

Outcome

Stay of execution granted pending appeal, conditional on deposit of half the taxed costs within 30 days

Facts

The respondent sued the applicant in the Chief Magistrate's Court of Kamuli in 2016, claiming ownership of suit land and seeking eviction. On 15 May 2024, judgment was delivered in favour of the respondent. The applicant filed a notice of appeal and memorandum of appeal on 2 July 2024, which was out of time. The High Court called for the record on 9 July 2024, but it was never forwarded. On 19 September 2024, the respondent filed an application for execution. The Chief Magistrate's Court issued a notice to show cause on 23 September 2024, and despite the applicant's response, issued a warrant of arrest on 26 October 2024. The applicant then filed this application for stay of execution on 8 October 2024. The applicant is in physical occupation of the suit land and derives his livelihood from farming it. He also filed an application for extension of time to appeal, scheduled for hearing on 20 November 2024.

Issues

  1. Whether the applicant has lodged an appeal which is pending hearing.
  2. Whether the pending appeal is not frivolous and has a likelihood of success.
  3. Whether there is a serious and imminent threat of execution of the decree and if not stayed the appeal will be rendered nugatory.
  4. Whether the application was made without unreasonable delay.
  5. Whether the applicant is prepared to give security for due performance of the decree.
  6. Whether refusal to stay would inflict greater hardship than it would avoid.

Orders

  • Application allowed in favour of the applicant with conditions.
  • Applicant directed to deposit half the taxed costs in the Court account within 30 days from delivery of this Ruling.
  • Applicant to furnish proof of deposit to the Deputy Registrar as a pre-condition to the stay.
  • Costs of this Application to abide the outcome of the Appeal.
  • Stay of execution of judgment and decree in Civil Suit No. JIN-01-CV-CSL. No. 009 of 2016 until final determination of High Court Civil Appeal No. 025 of 2024.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant
For a court to grant an application for stay of execution pending appeal, the applicant must establish: (1) that the appeal has a likelihood of success or a prima facie case of right to appeal; (2) that the applicant will suffer irreparable damage or the appeal will be rendered nugatory if stay is not granted; (3) where conditions 1 and 2 are not established, the court must consider where the balance of convenience lies; and (4) that the application was instituted without delay.
Civil Procedure — Stay of Execution — Pending Appeal
Where a notice of appeal or an application for appeal is pending before a superior court, it is right and proper that an interim order for stay of execution be granted in the interests of justice and to prevent the proceedings and any order therefrom of the appellate court being rendered nugatory. A notice of appeal is 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.
Civil Procedure — Stay of Execution — Substantial Loss
The phrase 'substantial loss' does not represent any particular amount or size and cannot be qualified by any particular mathematical formula. It refers to any loss, great or small, of real worth or value as distinguished from a loss that is merely nominal. The applicant must go beyond vague and general assertions of substantial loss and lay the basis upon which the court can make a finding that substantial loss will result.
Civil Procedure — Stay of Execution — Security for Due Performance
The provision of security for due performance of the decree is mandatory before any order for stay of execution can be granted. However, the court has discretion to determine the amount of security required, and the requirement should not be so onerous as to stifle appeals. The status of the applicant should be put into consideration in deciding whether security should be ordered and in what amount.
Civil Procedure — Stay of Execution — Purpose and Rationale
An application for stay of execution pending appeal is designed to preserve the subject matter in dispute so that the rights of the appellant who is exercising his or her undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory. Where a party is exercising their unrestricted right to appeal, it is the duty of the court to make such order for staying execution of the judgment appealed against in order to prevent the appeal from being rendered nugatory.

Legislation cited (6)

Cases cited (24)

  • Anton Bazira v Maurice Pater Kagimu Justice Misc. Application No. 138 of 2016 (arising from HCCS Civil Suit No. 395 of 2014)
  • Kampala Capital City Authority v Murangira Joseph MA 26/2016
  • Kyambogo University v Prof Isaiah Omolo Ndiege (Civil Application No. 347 of 2013)
  • Lawrence Musitwa Kgazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Hon Theodore Ssekikubo and Ors v The Attorney General and Ors (Constitutional Application No. 03 of 2014)
  • Hansa Industries Ltd v Tadhir Hussein & 2 Ors (Supreme Court Civil Appeal No. 19 of 2018)
  • Naluanga v Eden Ltd & Ors MA 7/2017
  • Mugene v Akankuasa [2008] HCB 760
  • Membe v Magoga [2009] HCB 82
  • Stanbic Bank Uganda v Atydba Agencies (Supreme Court Civil Appeal No. 31 of 2004)
  • Attorney General of the Republic of Uganda v East African Law Society & another (EACA Application No. 1 of 2013)
  • Tropical Commodities Supplies Ltd and 2 others v International Credit Bank Limited (In Liquidation) [2004] 2 EA 337
  • Hwang Sung Industries Ltd v Tadjauddin Hussein & Others (Supreme Court Civil Appeal No. 79 of 2008)
  • Steel Rolling Mills Ltd & Anor v Gestation Economique Des Mission Catholic & Anor
  • Pan African Insurance Company (U) Ltd v International Air Transport HCT MA No. 86/2006
  • Ecrshidor v Pribkett Dyal AIR 41 1954
  • Ruwashande Yosam & 9 others v Kagiyuwa Vincent (Miscellaneous Application No. 0013 of 2020)
  • Global Capital Sann 2004 Ltd & Another v Alice Okilor & Another, HC MA No. 485/2012
  • Sevankambo Nelson v Ziud Abby HC MA No. 118 OF 2005
  • Ulagar Singh v Runda Coffee Estates Ltd
  • International Credit Bank (In Liquidation) v Tropical Commodities Ltd. & 2 Others (Civil Appeal No. 24 of 2004)
  • New Vision Publishing Corporation & 2 Others v Peter Kagwa HC MA 127/2006 [KALR 391]
  • Mege Magambala v Christopher Mwanje (1993) KALR 97
  • Hon. Lady Justice Wolayo in Amunanan Sam v Opolot David MA No. 3 of 2014

Full judgment

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Wandira Simon v Mutagula Moses (Miscellaneous Application 242 of 2024) [2025] UGHC 995 (1 September 2025)
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.