Aguti v Rutungu Properties Limited & Another (Miscellaneous Cause 521 of 2024) [2024] UGHCLD 121 (24 May 2024)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS CAUSE NO.521 OF 2024** *(Arising from Misc. APP No. 2570 of 2023 and Civil Suit No. 014 of 2013)*

**ROSE AGUTI ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

### **1. RUTUNGU PROPERTIES LTD**

**2. BEN KAVUYA ::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

#### *Introduction:*

- 1. This was an application by notice of motion brought under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Order 52 rules 1,2 & 3 of the Civil Procedure Rules (CPR) for orders that: - i) A stay of execution doth issue against the respondents / defendants / agents restraining them from executing a decree vide HCCS No. 14 of 2013 until the determination

of Civil Appeal No. 144 of 2024 pending before the Court of Appeal.

ii) Costs of the application be provided for.

### *Background;*

- 2. The applicant being dissatisfied with the decision of court in Civil Suit No.14 of 2013 applied to this court vide Misc. App No. 2570 of 2023 to have the said judgement set aside however the said application was dismissed by this honorable court. - 3. The applicant aggrieved by the dismissal of Misc. App No.2570 of 2023 appealed against the said ruling in the court of Appeal vide Civil Appeal No.144 of 2024. There is imminent threat of execution of the decree arising from Civil Suit No.14 of 2013 where all the applications arise from, hence this application.

#### *Applicant's evidence;*

- 4. The application is supported by an affidavit deponed by the applicant which briefly states as follows; - i) That on 28th day of February 2023, this Honorable Court delivered its exparte Judgment and Decree against the applicant vide HCCS No. 14 of 2013 wherein the Court inter

alia issued an eviction Order / Vacant Possession against the applicant.

- ii) That the application seeking to set aside the exparte Judgment and Decree of this Honorable Court was heard and subsequently dismissed by this court. - iii) That the respondents have commenced execution proceedings vide High Court EMA No, 241 of 2023 wherein the Honorable Court issued a Notice to show cause why execution should not issue against me on 28th February, 2024 - iv) That on the 15th day of February, 2024, a Notice of Appeal and Letter requesting for a typed copy of the record of proceedings was filed in the High Court and the same lodged in the Court of Appeal vide Civil Appeal No. 144 of 2024 and served upon Counsel for the Respondents on 21st February 2024. - v) That I will suffer a substantial loss if execution ensures and I will suffer greater substantial loss if this application is not granted and the same shall render the intended appeal nugatory.

vi) That this application has been made without unreasonable delay.

### *Respondent's evidence;*

- 5. The application is responded to by an affidavit in reply deponed by the 2nd respondent who is the managing director at the 1st respondent which briefly states as follows; - i) That Misc. App No. 2570 of 2023 was filed by the applicant and the same dismissed by this court for inordinate delay and dilatory conduct. - ii) That the instant application doesn't satisfy the grounds for an application of stay of execution. - iii) The applicant shall not suffer any substantial loss since the suit land belongs to the 1st respondent. - iv) That this application is defective since it arises from Misc. App No.2570 of 2023 which order is incapable of being executed. - v) That in the event that this honorable court is inclined to grant the application, the applicant should be ordered to deposit security as due performance of the decree.

### *Representation;*

6. The applicant was represented by Wacha Moses of KGN Advocates whereas Edgar Ayebazibwe and Chrispus Asiimwe of Mwesigwa Rukutana & Co. Advocates represented the Respondent. Both parties filed their affidavits and submissions which I have considered in the determination of this application.

#### *Issues for determination;*

- **i) Whether the application merits the grant of an order for stay of execution pending the determination of the appeal?** - **ii) What remedies are available to the parties?**

#### *Resolution and determination of the issues;*

7. Before I dwell into the merits of the case, the 2nd respondent indicated in his affidavit in reply that he intends to raise preliminary objections regarding the entire application and how it was brought.

- 8. The first preliminary objection raised by the 2nd respondent is in regards to the fact that the instant application is premised on a negative order incapable of being executed. - 9. The 2nd respondent relies on the decision **In Semwanga Charles Vs Nazziwa Aisha And 2 Ors Civil Application No.20 Of 2022** where court held that *"what the applicant has before this court for stay of execution is a negative order of dismissal of the plaintiffs suit in the chief magistrate court. There was no order capable of execution which can be stayed, in such an application the notion is erroneous because there is no order that is capable of being executed as the order setting aside the decision of the chief magistrate resulted in a dismissal of the applicant's suit. The situation is that there is no suit in existence, there is no order capable of execution involved because a stay order is to stay the use of court process under section 38 of the civil procedure rules to give effect to the judgement, in the premises the applicant's application is incompetent because there is no order or decree which is capable of execution in the modes provided for under section*

# *38 of the civil procedure act and the application is hereby dismissed with costs to the respondents"*

- 10. In reply counsel for the applicant submitted that the facts in **Semwanga Charles Vs Nazziwa Aisha(supra)** are distinguishable from the facts at hand, further he stated that the court of appeal held that the dismissal of the applicant's suit pursuant to the decision of the high court which overturned the lower court's decision resulted into a negative order of dismissal of the suit in the chief magistrate's court, the decision of the chief magistrate court demonstrated that there was no counter claim. - 11. Counsel for the applicant further submitted that in the instant case the main suit where the instant application arises had a counter claim wherein the said exparte judgement and decree was entered against the applicant, the applicant sought to have the said exparte judgement and decree set a side vide Misc. App No.2570 of 2023 but the same was dismissed by this honorable court and the dismissal order cannot be said to have rendered the exparte judgement and decree a negative order because the same dismissal order left the respondents at liberty to execute the exparte judgement.

- 12. Counsel further submitted that the decree arising from Civil Suit No.14 of 2013 is capable of being executed and that justifies the instant application pending the disposal of the application challenging the dismissal order in the court of appeal. - 13. It is a principle of law that the purpose of a stay is to maintain the status quo and preserve the right of an intending appellant to have his or her appeal heard and to ensure that the intended appeal or main application is not rendered nugatory. This rationale was stated in the ancient decision in **Wilson Vs Church (1879) Vol. 12 Ch. D 454** where court held that *"as a matter of practice, where an unsuccessful party is exercising an unrestricted right of appeal, it is the duty of the court in ordinary cases to make such orders for staying proceedings in the judgment appealed from as will prevent the appeal if successful from being rendered nugatory*" - 14. The same rationale applies to stay of execution, stay of proceedings and injunctions, the order is intended to preserve the status quo pending the hearing of the substantive application or appeal*. (See; URA Vs Nsubuga Guster, SCCA No.16 Of 2018)* - 15. As to whether the application before court is for stay of execution of a negative order incapable of execution or not? - 16. Counsel for the 2nd respondent relies on the decision in **Semwanga Charles Vs Nazziwa Aisha(Supra)** to infer that the instant application is for stay of a negative order arising from Misc. Application No.2570 of 2023 incapable of being executed. - 17. I will draw my attention to the facts in the Semwanga Charles Vs Nazziwa Aisha(supra) decision as referred to by both counsel to this application, this was a decision of the court of appeal for interim order for stay of execution of the judgement and orders of the High Court in Civil Appeal No.133 of 2017, the applicant was the plaintiff in Civil Suit No.56 of 2014 in the Chief Magistrate Court of Makindye where he sought for orders that he was the lawful owner of the suit kibanja and the defendants to be declared trespassers on the same suit kibanja and the said suit was determined in the plaintiff's favor. - 18. The respondent who was the defendant appealed against the decision of the Chief Magistrate Court to the High Court which appeal succeeded setting aside the decision of the lower court. The appellant was found to be the rightful owner of the suit kibanja in

dispute and she was entitled to the judgement as sought in the lower court since it was the defendant in possession of the suit kibanja.

- 19. Further the applicant had obtained an order of eviction of the respondent from the suit kibanja in the Chief Magistrate decision however there was no indication that the respondent had ever been evicted. - 20. The decision of the chief magistrate indicated that there was no any counter claim in the suit and the applicant had applied for stay of execution but the same application failed since court held that there was nothing to stay and the suit property had since been transferred to different third parties who were not party to the suit. - 21. The applicant being aggrieved by the decision of the High Court which overturned the chief magistrate decision, appealed to the court of appeal where he again applied for interim orders of stay of execution of the high court decree that overturned the decision of the chief magistrate court. - 22. It was on that basis that the court of appeal in determining the application for interim orders for stay of execution held that the

dismissal of the suit pursuant to the decision of the High Court allowing the appeal of the defendants/respondents resulted into a negative order of dismissal of the suit in the chief magistrate court and the said order was incapable of being executed this was because it was the defendant who was always in possession of the suit kibanja and the plaintiff had never enforced the eviction order as granted by the chief magistrate court against the defendant.

- 23. Therefore, High Court in overturning the decision of the chief magistrate court dismissed the applicant's/plaintiff's suit against the defendant and confirmed the defendant's possession of the suit kibanja. There was no way the High Court appellate decision could be executed in the manner provided for under section 38 of the Civil Procedure Act rendering the same to be a negative order. - 24. The instant application is for stay of execution of decree arising from Civil Suit No.14 of 2013 which suit had a counter claim that court granted an exparte judgement on upon dismissal of the plaintiff's suit. The orders of the decree on the counter claim read as follows;

- *i) The plaintiff/ counter-defendant is a trespasser on the land comprised in Kyadondo Block 299 Plot 1253 land at Kamuli.* - *ii) An order of eviction/vacant possession is hereby issued against the plaintiff/counter-defendant.*

*iii) Costs of the suit to the defendants/counter claimants.*

- 25. The reading of the orders of the decree takes me to the finding that it was the applicant/plaintiff who was in possession of the suit land and that the said decree was evicting the applicant/plaintiff from the said suit land, that ordinarily meant that the decree was capable of being executed by the holder of the same. - 26. Further the applicant moved court to challenge the same decision by having the same set aside vide Misc. Application No. 2570 of 2023 which application was dismissed by this honorable court and being dissatisfied with the said dismissal appealed to the court of appeal vide Civil Appeal No.144 of 2024 which is pending disposal. - 27. I find the 2nd respondent's assertion that the dismissal of Misc. Application No. 2570 of 2023 which was for setting aside the

decree in Civil Suit No.14 of 2013 rendered the said decree a negative order incapable of being executed misplaced and nonapplicable in the instant application.

- 28. The considerations for court of appeal to have the applicant's application in **Semwanga Charles Vs Naziwa Aisha**(supra) completely defer from the considerations in the instant application. - 29. I am of the view that the decree in this case is one capable of being executed and the applicant adduced evidence how the execution process was already commenced by the respondents. - 30. In the circumstances, the preliminary objection as to whether the instant application is premised on a negative order is hereby overruled by this court and the same stands dismissed. - 31. The second preliminary objection is to the effect that the instant application is premature and made in bad faith, I find this objection premised on the merits of the application and the same cannot be determined without appreciating the merits of the application.

32. Therefore, I will reserve the same objection pending my resolution and determination of the issues in the instant application.

## Issue 1**. Whether the application merits the grant of an order for stay of execution pending the determination of the appeal.**

- 33. An application for stay of execution pending an appeal is designed to preserve the subject matter in dispute so that the right of the appellant who is exercising his or her undoubted rights of appeal are safeguarded and the appeal if successful is not rendered nugatory. - 34. The fact that there is no specific provision regarding stay of execution of a decree from the high court where the appeal lies to the court of appeal, this is an area where court exercises its inherent powers as stipulated under Section 98 of the Civil Procedure Act Cap 71*. (See; Singh vs Runda Coffee Estates Limited (1966) EA)* - 35. The conditions for court to consider in an application for stay of execution pending an appeal to the court of appeal were pronounced in the celebrated supreme court decision of *Lawrence*

*Musitwa Kyazze vs Eunice Busingye* **S. C. C. A** *No.18 of 1990* and have been re-echoed in *Theodre Sekikubo and Others Vs The Attorney G***eneral** *and others Constitutional Application No.03 of 2014* and these include;

- *i) The applicant must show that he lodged a notice of appeal.* - *ii) That there is a serious and imminent threat of execution of the decree and if not stayed the said appeal will be rendered nugatory.* - *iii)Substantial loss may result to the applicant unless the application for stay is granted.* - *iv) That the application has been made without unreasonable delay.* - *v) That the applicant has given security for the due performance of the decree or order as may ultimately be binding upon them.* - 36. This honorable court will now proceed to qualify the above conditions in the instant case as follows;

## *i) The applicant must show that he lodged a notice of appeal*

37. The applicant avers in his affidavit in support under paragraphs 4,5,6 and 7 that a notice of appeal has since been lodged vide Civil Appeal No. 144 of 2024 and the same notice of appeal is attached onto the affidavit as annexure D, I therefore find this condition met by the applicant.

## *ii) That there is a serious and imminent threat of execution of the decree and if not stayed the said appeal will be rendered nugatory.*

- 38. Counsel for the applicant submits that the respondents commenced execution proceedings against the applicant vide execution Misc. App No.241 of 2023 and a warrant of arrest has since been issued out of the said execution proceedings and a notice to show cause why execution should not be issued against the applicant. - 39. This is a fact that the respondent did not dispute about in his submissions. - 40. Therefore, I find that this condition is met by the applicant. # *iii) Substantial loss may result to the applicant unless the application for stay is granted.*

- 41. Counsel for the applicant submits that the applicant shall suffer loss if the respondents execute the exparte decree vide Civil Suit No.14 of 2013 since the said execution has a consequence of evicting the applicant from the suit property and if execution is not halted will substantially affect the applicant. - 42. Counsel for the 2nd respondent in reply submitted that court should take into account the dilatory conduct and lack of interest by the applicant in prosecuting his case, the instant suit has lasted for about 10 years till when it was decided and the respondent who was the registered proprietor had been denied access to utilize the suit land and if a proper balance of interests is reached by court it is the respondent who continues to suffer irreparable damage. - 43. The phrase substantial loss has been interpreted by courts of law drawing reference to *Tropical Commodities Supplies Limited & 2 others vs International Credit Bank Limited (in liquidation) (2004)EA* where Justice Ogoola as he then was held that "*the phrase substantial loss doesn't represent any*

*particular amount or size, it cannot be qualified by any particular mathematical formula"*. It refers to any loss great or small of a real worth or value as distinguished from the loss that is merely nominal

44. In the instant application the applicants base their claim of substantial loss on the intended eviction of the applicant from the suit land through enforcing of the decree vide Civil Suit No.14 of 2013. This means that if this application is not granted indeed substantial loss is to happen to the applicant who is in possession of the suit land, therefore I find this condition met by the applicant.

# *iv) That the application has been made without unreasonable delay.*

- 45. Counsel for the applicant submits that the instant application was filed on the 5th of march 2024 and Misc. Application No.2570 of 2023 was determined on the 12th of February 2024 whereas Civil Appeal No.144 of 2024 was filed on the 15th of February of 2024. - 46. All these steps taken by the applicant to appeal and contest the execution of the decree testify to the great speed that she has brought this application. Since the respondents did not adduce any evidence contrary to the same, I'm satisfied that the

application for stay of execution was lodged without unreasonable delay.

# *v) That the applicant has given security for the due performance of the decree or order as may ultimately be binding upon them.*

- 47. Security should be given for due performance of the decree however each case should be looked at according to its own merits, the requirement for payment of security for due performance of the decree is to ensure that the losing party does not intentionally delay execution while hiding under unnecessary applications. - 48. Counsel for the applicant submit that this requirement is not mandatory and depends on the circumstances of each case as relied upon in the case of **Baptist Lwanga Vs Namyalo Kevina**

### **MA No.12 Of 2017**

49. In reply counsel for the 2nd respondent submits that the applicant deposits a sum of UGX 300,000,000 as security for due performance of the decree and that it's the applicant to benefit from the endless litigation.

50. This honorable court will rely on the decision of *John Baptista*

#### *Kawanga vs Namyalo Kevina &*

- 51. *Anor(supra)* where it was held that the decision as to order for payment of security for the due performance of the decree must be made in consonance with the probability of success. - 52. In the instant case the applicant's counsel indicated in the submissions how the appeal stands high chances of success since it raises questions of law and fact that were not considered by the high court and the fact that the applicants are in possession of the suit land. Therefore, I do not find it necessary for the applicant to deposit security for the due performance of the decree in the instant case. - 53. As to whether the applicants appeal holds likelihood of success; In *Gapco Uganda limited vs Kaweesa & Anor (MA No.259 of 2013) UGHCLD 47* defined likely hood of success of a case to be one that, *"the court is satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried"* 54. Counsel for the applicant submits that appeal raises questions of law and fact which appeal has a high likelihood of success and

the appeal is of merit and there is no evidence to the contrary from the opposite counsel.

- 55. Having regard to the law and the evidence before me, I am satisfied that the staying of execution of the decree from Civil Suit No.14 of 2013 pending the determination of Civil Appeal No.144/2024 is pertinent to the ends of justice. - 56. In the premises I do not find it necessary to resolve the second objection raised by counsel for the 2nd respondent since it is to the finding of this court that the applicant has exhibited a good case for stay of execution. - 57. Accordingly, it's my finding that this application has merit and the same succeeds with the following orders: - i) The Execution of the decree from Civil Suit No.14 of 2013 against the applicant be stayed pending the determination of the applicant's appeal Civil Appeal No.144 of 2024. - ii) The costs of the application will abide the outcome of the appeal in the court of appeal.

#### **I SO ORDER.**


## **NALUZZE AISHA BATAALA**

## **JUDGE**

**24 nd/05/2024**