Baryomunsi v Jemba & Another (Miscellaneous Application 2644 of 2024) [2025] UGHCLD 23 (28 January 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO. 2644 OF 2024** *(ARISING FROM MISCELLANEOUS APPLICATION NO. 2242* **OF 2024 AND CIVIL SUIT** *NO. 0670 OF 2018)*

**BARYOMUNSI NICHOLAS ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

#### **1. JEMBA HENRY 2. LUNKUSE FAUSTIN :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

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

### **RULING.**

#### *Introduction:*

- 1. The Applicant, Baryomunsi Nicholas brings this application by notice of motion brought under Section 98 of the Civil Procedure Act and Sections 14 & 33 of the Judicature Act for orders that: - i) The execution of the decree and order arising from the Judgement of Hon. Justice Herny Kaweesa delivered on the 8th day of November, 2021 in Civil Suit No. 067 of 2018 Jemba Henry & Anor v Muzamiru Kalema be stayed

pending determination of Miscellaneous Application No. 2242 of 2024 for review in this Honourable Court.

ii) The costs of the application be in the cause.

### *Background;*

- 2. That the Respondents filed Civil Suit No. 067 of 2018 Jemba Henry & Anor v Muzamiru Kalema to which proceedings the applicant was not a party. The judgement was issued and the respondents have since initiated the execution proceedings wherein the Deputy Registrar issued an eviction notice which was served onto the Applicant. - 3. The Applicant has since filed an application for review against the said judgement on grounds that he was not party to Civil Suit No. 067 of 2018 and that he is the registered proprietor of the land comprised in Kyadondo Block 185 Plot 10401 at Namugongo. He was registered onto the same on the 3rd day of October 2018 at 8:57 am vide Instrument No. WAK-00192116 and he has always been in possession thereof.

4. The Applicant thus brings this application for stay of execution pending the determination of Misc. Application No. 2242 of 2024, the application for review.

#### *Applicants' Evidence;*

- 5. The grounds of the application are contained in the affidavit in support of the application deposed by **BARYOMUNSI NICHOLAS** the Applicant which briefly states that: - i) That I am aggrieved with the judgement and orders of Hon. Justice Henry Kaweesa delivered on the 8th day of November, 2021 in High Court Civil Suit No. 670 of 2018 and I have filed an application for review of the said judgement vide Miscellaneous Application No. 2242 of 2024. - ii) That I am the registered proprietor of the suit land comprised in Kyadondo Block 185 Plot 10401 land at Namugongo and I obtained my registration on the certificate of title of the suit land on the 3rd day of October 2018 at 8:57 am vide Instrument No. WAK-00192116. - iii) That to my surprise, sometime in August 2024, I got to know of a judgement and eviction notice wherein my land (the suit

land) was the subject yet I was never a party to the said suit though I have been in physical possession of the same.

- iv) That the Respondents with the view of reaping the fruits of litigation will further go ahead and execute the decree against me before the application for review is heard and determined by this Honourable Court since they have already extracted a decree and obtained an eviction order. - v) That I am advised by my Advocates M/s Biyinzika & Co. Advocates which advise I verily believe to be true that I will suffer irreparable damage as the lawful and bonafide owner of the suit land if I am illegally evicted from the suit land and my property is demolished in a disguise of enforcing an eviction order against Muzamiru Kalema who is a defendant in Civil Suit No. 0670 of 2018. - vi) That I am aggrieved by the judgement and order of this Honourable Court as my property is subject of the eviction notice dated 8th May 2023, yet I was never heard in the main suit nor was I a party to the same. That the application ought to be granted to maintain the status quo and I will suffer

irreparable damage if the application is not granted and the orders in the Application for review will be rendered nugatory.

#### *Respondent's evidence;*

- 6. The application is opposed to by an affidavit in reply deposed by **JEMBA HENRY** the 1st respondent which briefly states as follows; - i) That our claim in the main suit was specifically trespass on the family Kibanja located at Kayebe by constructing a house just in the compound of the family house and the plaintiff did not claim any certificate of title. - ii) That the Respondents have been dealing with the defendant in the main suit as a person who destroyed their crops and commenced construction of the structure on the suit land. That the Respondents even opened a criminal case against Muzamiru Kalema at Kasangati police and when he came to police, he explained that he had purchased the place and therefore had the right to develop it. - iii) That throughout the hearing of the suit to date, service of Court documents has been made on the occupants on the suit land on behalf of Muzamiru Kalema and the Applicant's

appearance this time is nothing but an afterthought to defeat the execution process.

iv) That the judgement in the main suit is not all about eviction but also general damages and costs of the suit for which Muzamiru Kalema had agreed to settle. That the said Muzamiru Kalema has not filed any application denying ownership of the structure on the land and this application was filed with apparent collision between Muzamiru Kalema and the Applicant.

## *In rejoinder*

- i) That the suit land has never had any Kibanja interest and if there is any, I never had notice of the same ever since I purchased and immediately took physical possession. Muzamiru Kalema has never been in possession of the suit land and the Respondents ought to have added me as a party to Civil Suit No. 670 of 2018. - ii) I was not given notice of the ongoing proceedings where my land was subject and Muzamiru Kalema claims no interest in the

said land and it will be an injustice to deprive me of my property without being heard.

#### *Representation;*

7. The Applicant was represented by Counsel Biyinzika Allan of M/s Biyinzika & Co. Advocates whereas the Respondents were represented by Counsel Semwanaga Richard holding brief for Counsel Kavuma Issa of M/s Luzige, Kavuma & Co. Advocates. I have considered the submissions filed by both counsel in the determination of this application.

#### *Issues for determination;*

# *Whether the application discloses substantial grounds for stay of Execution?*

## *Resolution and determination of the issue?*

8. Stay of execution pending a substantive application is one of the areas that are not expressly provided for under the laws of procedure therefore, to handle applications of such nature, the inherent powers of Court under Section 98 of the Civil Procedure Act have to be invoked. However, the said powers should be exercised judiciously.

9. The purpose for granting orders of such nature is to preserve the right of the applicant to have his or her application heard and to ensure that the main application is not rendered nugatory. *(See;*

## *Wilson Vs Church (1879) Vol 12 Ch. D 454)*

- 10. Applications of this nature seek to balance procedural requirements with fundamental rights to be heard and protecting potential property interests of third parties but not to deny a successful litigant the fruits of their judgement. - 11. Court in *Geofrey Opio Vs Felix Obote & 2 others Miscellaneous Application No.81/82 of 2018* laid down the conditions of grant of an application for stay of execution pending a substantive application to include the following; - *i) That there is a substantive application pending in court,* - *ii) That there is a serious threat of execution before the hearing of the substantive application,* - *iii) That if the application is not granted it would render the substantive application nugatory.*

12. This honourable court will proceed to determine this application in light of the above conditions.

## *i) That there is a substantive application pending in court*

13. The Applicant filed Miscellaneous Application No. 2242 of 2024 an application for review from which the instant application emanates. Therefore, this condition is satisfied.

# *ii) That there is a serious threat of execution before the hearing of the substantive application*

14. Imminent threat means a condition that is reasonably certain to place the applicant's interests in direct peril and is immediate and impending and not merely remote, uncertain, or contingent. An order of stay will issue only if there is actual or presently threatened execution. *(See; Junaco (T) Limited & 2 others v*

## *DFCU Bank Limited Misc. Application No. 0027 of 2023)*

- 15. There has to be evidence that the opposing party is actively taking steps to execute the judgement such as extracting the decree and initiating enforcement actions. - 16. The Applicant states under paragraph 5 of the Affidavit in support of the application that sometime in August 2024, he got to know of a judgement and an eviction notice on the suit land.

The applicant further states that he was not a party to the suit from which the said orders arise and he has always been in physical possession of the suit land.

- 17. The 1st Respondent in his affidavit in reply, paragraph 7 to be specific states that the judgement in the main suit is not all about eviction but also general damages and costs of the suit for which Muzamiru Kalema had agreed to settle. This is collaborated by the orders in the judgement and the decree in which Court ordered for the eviction of Muzamiru Kalema after being found to be a trespasser. - 18. Despite the application for review of the said judgement, the same cannot stop the Respondents from executing the said decree unless they are halted by Court and the same might cause an irreversible effect to the Applicant. There is evidence on record that the Learned Deputy Registrar issued an eviction notice for land in which the Applicant is in possession. This Court is convinced that there is an actual threat of execution, which is most likely to render the orders in Misc. Application No. 2242 of 2024 irrelevant if the same is not stayed. I am satisfied that this condition has been equally met.

# *iii) That if the application is not granted it would render the substantive application nugatory.*

- 19. The substantive application is one for review and or setting aside the judgement in Civil Suit No. 0670 of 2018 on account of an error apparent on the face of the record and the applicant was not given an opportunity to be heard. - 20. In the Application, the Applicant states that he is the registered proprietor of the suit land comprised in Kyadondo Block 185 Plot 10401 at Namugongo and that he has always been in physical possession of the same. That the said orders affect his property yet he was not party to Civil Suit No.670 of 2018 from which they arise. - 21. If the application is not granted the orders in Misc. Application No. 2242 of 2024 shall be rendered nugatory since the applicant will have been evicted from his land. In **Mugenyi v National Insurance Corporation SCCA No. 13 of 1984, Wambuzi CJ** (As he was then) had this to say, "An order for stay of execution must be intended to serve a purpose."

- 22. It is pertinent to stay execution of the decree vide Civil Suit No. 067 of 2018 short of which the orders in the application for review shall be rendered nugatory. - 23. I therefore find that the Applicant has satisfied the conditions for grant of an order for stay of execution by this Court. This application is allowed and an order of stay of execution is hereby granted with the following orders; - i) An order to stay execution of the decree vide Civil Suit No.067 of 2018 pending the hearing and determination of Miscellaneous Application No. 2242 of 2024. - ii) Costs of this Application shall abide the outcome of the main cause.

**I SO ORDER.**

## **NALUZZE AISHA BATALA**

## **Ag. JUDGE**

#### **28 th/01/2025**


## *Delivered Electronically via ECCMIS on the 28th day of*

*January 2025.*