Barozi and Another v Winyi (HCT-01-CV-MA 27 of 2003) [2024] UGHC 749 (16 August 2024)

# **THE REPUBLIC OF UGANDA**

# **IN TH HIGH COURT OF UGANDA AT FORT PORTAL**

3 **HCT – 01 – CV – MA – 0027 OF 2023**

## **(ARISING FROM HCT – 01 – CV – LD – CS – 0016 OF 2013)**

## **1. PAUL BAROZI**

## 6 **2. PAUL KATO BAROZI :::::::::::::::::::::::::::::::::::::::: APPLICANTS**

**VERSUS**

#### **CHRISTOPHER NICODEMUS WINYI ::::::::::::::::::::::: RESPONDENT**

## 9 **Corum: HON. JUSTICE VICENT WAGONA**

#### **Delivered on: 16th/08/2024**

*Summary: Civil Procedure: - Stay of Execution: The term imminent threat of* 12 *execution connotes a threat which is visible and should target the interests of the person seeking a stay.*

### *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* 15 *RULING \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_*

The applicant brought this application seeking an order to stay execution of the 18 decree of this court in Civil Suit No. 16 of 2013 and costs of the application under Section 98 of the Civil Procedure Act, Order 43 Rule 4(1), (3) and Order 52 rule 1 & 2 of the Civil Procedure Rules.

- The application is supported by Paul Barozi (1st 21 applicant) who contended as follows; - 1. That they were aggrieved with the decision of this court in Land Civil Suit - No. 0016 of 2013 delivered on 13 24 th October 2023 against them.


- 2. That they lodged an appeal against the said decision to the Court of Appeal and wrote a letter asking for typed record of proceedings. - 3 3. That the Respondent has set execution of the said decree in motion by writing to (Chongqing International Construction Corp), (3rd defendant to the main suit) who had failed to grade the area as directed by court, to commence 6 contempt proceedings against them. - 4. That the said execution will indirectly evict the applicants from the disputed land and destroy their source of livelihood. - 9 5. That the applicants shall suffer irreparable injury if execution is ordered since they are using the suit land for agriculture. That if a stay is not granted, the pending appeal to the Court of Appeal which has high chances of success shall 12 be rendered nugatory. - 6. That the application was brought without inordinate delay and the Respondent will not suffer any prejudice and thus should be granted. - 15 The motion was opposed by the Respondent who through an affidavit in reply filed on 26th April 2024 contended as follows: - 1. That he was the successful party in the main suit where the applicants were directed not to do any further acts of trespass on the suit land and the 3rd 18 defendant directed to grade the area. - 2. That the application was brought by the applicant to block the 3rd defendant 21 from complying with the orders of court. That the applicants have no developments on the suit land and as such there is no order that the applicant seeks to stay. - 24 3. That the applicants have not taken progressive steps to prosecute the appeal and there is not execution to stay.


- 4. That the application is geared towards frustrating him from benefiting from the fruits of the judgment of court. That the application had no merit and ought 3 to be rejected with costs.

# **Representation and Hearing:**

Mr. Nyakaana Patricka appeared for the applicants while Mr. Mugisha Richard 6 Rwakatoke appeared for the Respondent. Both counsel addressed me by way of written submissions which I have duly taken into account in this ruling.

#### **Issues:**

9 (1)Whether the application meets the test for grant a stay of execution. (2)What remedies are available in the circumstances?

# **Consideration:**

12 Order 43 Rule 4 (1), (2) and (3) of the CPR states as follows:

# **Stay by High Court.**

*(1)An appeal to the High Court shall not operate as a stay of proceedings under*

- 15 *a decree or order appealed from except so far as the High Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the High Court may for sufficient cause* 18 *order stay of execution of the decree.* - *(2)Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing from the decree, the* - 21 *court which passed the decree may on sufficient cause being shown order the execution to be stayed.* - *(3)No order for stay of execution shall be made under sub rule (1) or (2) of this* 24 *rule unless the court making it is satisfied—*


- *(a) that substantial loss may result to the party applying for stay of execution unless the order is made;* - 3 *(b)that the application has been made without unreasonable delay; and* - *(c) that security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him or her.* - 6

I thus agree with the submission of Mr. Rwakatoke that an appeal does not operate as a stay. Therefore, for court to grant a stay, the applicant must satisfy the grounds

9 under Order 43 rules (1), (2) and 3 of the Civil Procedure Rules and those which have been laid down by Courts. In **Lawrence Musiitwa Kyazze - v - Eunice Busingye, SC. Civil Application No. 18of 1990***,* the supreme court had the occasion 12 to consider an application for stay by Lawrence Musiitwa where it observed in its ratio decided that;

"Parties asking for a stay" should satisfy the following:

15 *"(1) That substantial loss may result to the applicant unless the order is made. (2) That the application has been made without unreasonable delay. (3) That the applicant has given security for due performance of the decree or*

18 *order as may ultimately be binding upon him."*

In **Dr. Ahmed Muhammed Kisule v Greenland Bank (in Liquidation), Supreme** 21 **Court Civil Application No. 7 of 2010***,* the Supreme Court added to the requirement in *Lawrence Musiitwa (supra),* that the applicant must show that he or she lodged an appeal in the appellate court. In the case of the Supreme Court, the applicant 24 should have lodged a notice of appeal in the Court of Appeal.

In **Kyambogo University Vs. Prof. Isiah OmoloNdiege, C. A. C. A No. 341 of 2013**

27 Justice Kakuru observed that in an application for stay the applicant must prove in


addition to other grounds; *(a) That there is a serious and imminent threat of execution of the decree or order and (b) That refusal to grant the stay would inflict*

3 *greater hardship than it would avoid.*

Mr. Patrick Nyakaana in his written submissions argued that the application by the 6 applicants meets all the requirements above. That the applicants lodged an appeal against the decision of this court and attached a copy of the notice of appeal. That there is threat of execution since the grading that the Respondent is pursuing has the 9 effect of denying them and their families livelihood which they have been deriving

from the suit land since they are in occupation of the same. That there is threat of execution since there is a letter by the Respondent threatening to commence contempt proceedings against the 3rd 12 defendant in the suit for failing to grade the

area as directed by Court.

In response, Mr. Rwakatoke, learned counsel for the respondent contended that there

- 15 is not threat of execution since the applicants are not in possession of the suit land as observed by Court during the locus visit. That the 3rd defendant was directed to complete the grading and the application at hand seeks to block the 3rd defendant - 18 who is not a party to the current application. There is no execution which was commenced by the Respondent and the acts of the applicant seeking to block the 3rd defendant from putting into effect the judgment of court who is not a party to the - 21 appeal and the application in issue is farfetched as such the application lacks merits and ought to be rejected with costs.

I have considered the submission of both counsel, the pleadings and the grounds to 24 be proved on an application for stay of execution. During the trial in Land Civil Suit No. 16 of 2013, court conducted a locus visit. At locus, it was established that the


applicants had no developments on the land or activities on the suit land. I am therefore not convinced that there is any truth in the averments by the applicants that

- 3 they have developments on the land which are being threatened by the Respondent's effort to compel the 3rd Defendant to comply with the orders issued by this court. - Therefore, whereas the applicant lodged an appeal to the Court of Appeal against 6 decision of this court and filed the current application without inordinate delay, it is my view and finding that the applicants have failed to demonstrate that the steps taken by the Respondent towards execution of the decree of this court has any effect - 9 on them to warrant a stay. The threat in my view should be visible and should target the interests of the person seeking a stay. In this case there is no such threat to the interests of the applicants who are not on the land and with no developments thereon. - 12 The applicants thus failed to prove that they shall suffer substantial loss if a stay is not granted and further failed to demonstrate the threat against their interests in the suit land. - 15 This application therefore fails and it is accordingly dismissed forthwith. The costs of taking out the application are granted to the Respondent but shall abide the outcome of the pending appeal in the Court of Appeal. I so order.


Vincent Wagona **High Court Judge** 21 **FORTPORTAL DATE: 16/08/2024**


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