Abiro v Eswagu (Civil Application 370 of 2024) [2025] UGCA 46 (13 February 2025)

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA crvrL APPL|CATToN NO.0370 0F 2024

(Arising from Civil Appeal No.813 of 20231

#### AB!RO MARGARET APPLICANT

#### VERSUS

#### ESWAGU WILLIAM RESPONDENT

#### RULING OF MOSES KAZIBWE KAWUMI

#### (Sitting as a single Justice)

The Applicant filed a Notice of Motion with a supporting affidavit seeking an order for stay of execution of the Orders of the High Court at Soroti in Miscellaneous Application No.158 of 2022 pending the final determination of Civil Appea! No.813 of 2023 by this Court. The Orders sought to be set aside were issued on 5th May 2023.

#### Background

The Applicant and the Respondent are clan relatives disputing over Iand stated to be three (3) acres. The clan intervened in the dispute and ruled that the Iand be equally divided between them. The Respondent however proceeded to the Local Councillll court which compelled the clan to rescind its declsion.

The Applicant filed a suit in the Chief Magistrate's court at Soroti which was heard and determined by the Magistrate Grade 1 who decreed that she was a trespasser on part of the land owned equivalent to one a rd <sup>a</sup> half acres owned by the Respondent.

1.

W

t he Applicant sought a review of the judgment and orders which was done. The decision was again reviewed by the High Court on application by the Respondent herein and an eviction order was issued against the Applicant based on which she lodged the Appeal and the application from which this Ruling arises.

### Representation

Mr. Peter Wanda appeared for the Applicant. The Respondent and his Counsel were not in court.

### Dec ;ion

At the hearing of the application on 24th January 2025, Counse! for the Applicant briefed court that the Respondent did not file an Affidavit in Recly and did not also appear for the conferencing of the application. There is on record evidence of service of the hearing notice for the hearing of the application on 24th January 2025 that was acknowledged by Counsel for the Respondent but she did not appear in court.

I granted the application since it was not contested and promised to delirer a brief ruling on notice. The justification for granting the application is simply that in an application proceeding by evidence supplied by affidavits, where there is no opposing affidavit, the apolication stands unchallenged.

## Makerere University V St. Mark Educational lnstitute Limited & Others. [1994] KALR 26.

The court record reveals that the applicant filed an Appea! which is yet to'le fixed for hearing. The Respondent commenced execution proceedings in the lower court as evidenced by the application dated 14th September 2023.

The effect of the execution would be to deprive the applicant of her piece of land from which she claims to have a house and garden for her livelihood. The execution of the orders of the lower court would in effect render the pending appeal nugatory. One of the major reasons why courts issue stay of execution orders is to have the status quo preserved and to save any pending appeal from being rendered nugatory.

I however need to observe that the Applicant and the Respondeni are clan relatives. The clan leaders had taken the bold and pragnrati: approach to mediate the conflict between them. A perusal of the application reveals that the parties have sustained this dispute in the courts for about eight years pending the determination of Civil Appeal No.183 of 2023 which is likely to take another few years.

Counsel for the parties are ordered to guide the parties to explore mediation of the dispute between them. The decision reached will be cheaper and long lasting given the clan relationship between the two disputants.

The application is allowed with costs to abide the outcome of Civi! Appeal No.813 of 2023.

Moses Kaz we Kawumi

Justice of Appeal

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