Bemba & Another v Namanda (Miscellaneous Application 257 of 2022) [2024] UGHC 963 (14 October 2024)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO **MISCELLANEOUS APPLICATION NO. 257 OF 2022** (ARISING FROM MISCELLANEOUS APPLICATION NO. 519 OF 2022) (ARISING FROM CIVIL SUIT NO. 53 OF 2021)

### 1. BEMBA SAM FREDRICK

$\mathcal{L}^{\mathcal{L}}$

2. KYESWA SEMU ::::::::::::::::::::::::::::::::::::

### **VERSUS**

NAMANDA DIANA :::::::::::::::::::::::::::::::::::

# BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

## **RULING**

1. This is a ruling on an application for stay of execution, brought by Chamber summons under the provisions of section 98 of the Civil Procedure Act, Cap. 71, Order 22 rules 23, 26 & 89 and Order 52 rules 1, 2 & 3 of the Civil Procedure Rules S. I. 71-1. The Applicants further seeks for costs of this application. The grounds upon which the application is brought are stated in the 2<sup>nd</sup> Applicant's affidavit dated $22<sup>nd</sup>$ June, 2022. The grounds are that:

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(a) the Applicants are the beneficiaries and occupants of the suit land comprised in Block 107, Plot 922 at Kauga having settled there for a period of more than twenty years as

beneficiaries of the estate of the late Marko Kyeswa Kitenda who owned the said land during his life time;

(b) after the death of Marko Kyeswa Kitenda, one of his children known as Alex Kyeswa fraudulently acquired part of the estate of the late Marko Kyeswa and obtained a lease title to it with the view of selling it off;

(c) the Applicants' late mother, Alice Nakato and the Administrator General filed a case in the High Court of Uganda vide Civil Suit No. 40 of 1997, challenging Alex Kyeswa's act of registering the land in his name;

(d) the two Applicants also applied for and obtained an order of injunction against any dealings with the land:

(f) later, in the year 2000, a decree was passed by the court in the case declaring all that land comprised in Block 107, Plots 387 and 388 to be part of the estate of the late Marko Kyeswa Kitenda;

(g) unknown to the Applicants, Mr. Alex Kyeswa had in the year 1998 defied the court injunction and subdivided Plot No. 388 into two plots $922$ and $923$ ;

(h) Mr. Alex Kyeswa then proceeded to transfer Plot No. 922 into the name of the Respondent's father, a one Makanga Tom;

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(I) Plot 922 comprises that part of the estate which was given to the 2<sup>nd</sup> Applicant and he was occupying it even during the trial of Civil Suit No. 40 of 1997;

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(i) in 2007, Mr. Makanga Tom transferred the suit land which the 2<sup>nd</sup> Applicant was occupying to the Respondent;

(i) in spite of the registration of the Respondent on the certificate of title on Plot 922, the 2<sup>nd</sup> Applicant has always been in occupation of it undisturbed together with his tenants until 2019 when they received an eviction notice from the Respondent's lawyers;

(k) on the 10<sup>th</sup> day of February, 2021, the 2<sup>nd</sup> Applicant received another notice from the Respondent's lawyers giving him notice of 2 weeks to vacate the land or else he would be evicted:

(I) the $2^{nd}$ Applicant realized that the caveat which was lodged on the suit land by the 1<sup>st</sup> Applicant was removed by a court order in a case where they were not notified;

(m) basing on the Respondent's conduct, the Applicants instituted Civil Suit No 53 of 2021 challenging the Respondent's ownership and further filed Misc. Applic. No 74 of 2021 for an injunction which was granted restraining the Respondent from evicting the Applicants until the hearing and determination of the main suit:

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(n) the Respondent then filed Misc. Application No 519 of 2021, challenging the competence of the suit and the same was allowed;

(o) the Applicant preferred an appeal to the Court of Appeal and they have filed a notice of appeal;

(p) since the results of Misc. Applic. No. 519 of 2021 also set aside the orders of injunction, the $2<sup>nd</sup>$ Applicant is afraid that the Respondent may evict him from their land even before their appeal is heard;

(q) the Respondent had earlier threatened to evict the $2<sup>nd</sup>$ Applicant from the suit land and the dismissal of the suit would automatically mean that she will go on with what she had intended:

(r) the $2<sup>nd</sup>$ Applicant lived on the suit land as his benefit from the estate of the late Marko Kyeswa Kitenda for over 20 years and has his developments thereon and he also has tenants occupying part of the land;

(s) if this application is not granted, the $2<sup>nd</sup>$ Applicant is bound to suffer great loss as his source of livelihood would be destroyed;

(t) the Respondent will not suffer any loss if the stay of execution is granted since she has never lived or utilized the suit land in any way since he got registered in 2007; and

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(u) it is in the interest of justice that this application is granted.

2. The Respondent opposed the application through an affidavit in reply dated 17<sup>th</sup> October, 2023, on the following grounds that:

> (a) this application is misconceived and discloses no cause of action against the Respondent and that a preliminary objection shall be raised to strike out the entire application at the earliest opportunity:

> (b) whereas the Applicants seek stay of execution, the orders in Miscellaneous Application No. 519 of 2021, this court did not make orders which require execution;

> (c) in the said Misc. Applic. No. 519 of 2021, this honourable court dismissed Civil Suit No. 53 of 2021, vacated the underlying temporary injunction and ordered each party to bear their own costs:

> (d) such a ruling does not require any execution proceedings and indeed the Respondent has not commenced any execution proceedings and he does not intend to commence any;

> (e) this application lacks any legal basis since no execution proceedings have been commenced or can be commenced and there is also no threat of any eviction since no eviction orders were issued:

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(f) contrary to the Applicants' averments, the Respondent has been in possession of the suit land since 2007 and she continues doing so and this was duly noted by this court in its ruling; and

(g) the Applicants herein have not shown any credible reason for grant of the orders sought.

3. When the application came up for hearing, Counsel Okuyo Henry from M/s JM Musisi Advocates appeared for the Applicants. Counsel Stephen Galabuzi from M/s Premier Advocates represented the Respondent. Both parties filed written submissions and the Applicants filed submissions in rejoinder which are considered hereunder.

#### Issue

Whether this is a proper case for stay of execution.

4. The Applicants' counsel submitted that they filed Civil Appeal No. 488 of 2022 and consequently filed Miscellaneous Applications 257 and 258 for an interim and main stay of execution against the orders and decree in Misc. Applic. No. 519 of 2021, respectively. That on the 5<sup>th</sup> day of October, 2022, an interim stay of execution was granted in favour of the Applicants preserving the status quo until the hearing and determination of the main application for stay of execution. Despite the said court order, the Respondent has commenced an illegal demolition of the $2^{nd}$ Applicant's house and other structures on the suit land forcing the $2^{nd}$ Applicant's tenants to flee. That it's against

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this situation that the Applicants seek a stay of execution from this court pending the hearing and determination of the Applicants' appeal in the Court of Appeal. Counsel stated that this is a proper case for the grant of stay of execution and that the Applicants have filed an appeal to the court of appeal (Civil appeal No. 488 of 2022) challenging the decision of court in Miscellaneous Application No. 519 of 2021 and served the same on to the Respondent.

- 5. The Applicants' counsel further submitted that the Applicants have enjoyed quiet possession since 1997 without any interference or challenge from any one not even the Respondent's father until 2019 when the Respondent acting through her lawyers sent an eviction letter purportedly to evict the Applicants' tenants on the suit. That fortunately, in the said eviction letter. Annexure E, the Respondent admits that land comprised in Block 107, Plots 387 and 388 at Mukono belongs to the Applicants as per the decree in Civil Suit No. 40 of 1997. - 6. Counsel added that there is no evidence on court record either in the Defendant's written statement of defence or the Applicant's affidavit in support of Miscellaneous Application No. 519 of 2021 to show that the Respondent has ever been in possession of the suit land since 2007 when she illegally got registered on the suit land. - 7. That the $2^{nd}$ Applicant has been in possession of the suit land uninterrupted since 1997 until 2019, when the Respondent threatened to evict him, it is more than twenty years now ever since the $2<sup>nd</sup>$

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Applicant settled on the suit land, he has utilized the said land and developed the same with houses and other structures thereon, a fact known by the Respondent who has instead embarked on the scheme of illegal activities aimed at demolishing the said properties in pursuit of entering into possession.

- 8. Te Applicants' counsel submitted that the physical attempts by the Respondent to evict the $2^{nd}$ Applicant from the suit land were intensified after the suit was dismissed. That it is therefore important that the status quo be maintained pending the disposal of the appeal. Counsel submitted that there is a high likelihood of the appeal succeeding since the $2^{nd}$ Applicant was a Plaintiff in the main suit who himself is fighting for possessory rights. - 9. That as a person who is in possession of the land, the $2<sup>nd</sup>$ Applicant could not be caught by the law of limitation as he was interested in his continued stay on the land as the protection of his benefit as against the Respondent who has never been in possession thereof. That the Respondent has never been in possession of the suit land and that the issue of limitation in Civil Suit No. 53 of 2021 is a triable issue which can only be determined after hearing the Applicants' evidence at a full trial. - 10. That the Respondent has gone ahead to bring capable buyers on the suit land with the intentions of selling the said land to unsuspecting members of the public before Civil Appeal 488 of 2022 is determined by the Court of Appeal. That this application was made without undue

delay. No sooner had the Applicants received the ruling of this court in Misc. Applic. No. 519 of 2021 than they filed Civil Appeal No. 488 of 2022 to the Court of Appeal, an application to this court for stay of execution and subsequently an interim stay of execution which was granted by this honourable court. That the Respondent will not be prejudiced in any way as the appeal was brought without delay.

- 11. Further submissions for the Applicants is that they have filed a record of appeal and served the same to the Respondent and are only waiting for the Court of Appeal to fix and set a date for the hearing of the said appeal. That the interest the Respondent claims in the suit land will not be extinguished if this application is granted. That she has never been in possession or utilization of this land only seeks to make entry thereon after the dismissal of the Applicants' suit. - 12. That if this application is not granted, the $2^{nd}$ Applicant will lose possession of the suit land and all the orders sought in the appeal will be rendered nugatory. Furthermore, that the Applicants stand to permanently lose their interest in the suit land as the Respondent intends to sell it to unsuspected members of the public. - 13. The Respondent's counsel contended that it is not stated anywhere that the Respondent has initiated any execution proceedings against the Applicants. That there is no Execution Miscellaneous Application number cited and that the Respondent has not started any execution process against the Applicants. That where there is no ongoing execution process, the court cannot order for stay of execution. That

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this application is premature and made with no legal basis and should as such be dismissed. That the ruling in Miscellaneous Application No. 519 of 2022 does not make any order which requires an execution process as the court merely struck out the suit, vacated the injunction and did not even award costs. That there is nothing for the Respondent to execute. That all the orders given are merely declaratory orders which require no further action by the Respondent.

- 14. Counsel prayed for the Respondent that this honourable court finds that the present application is incompetent, redundant, premature and a misconceived. He further prayed that the Court be pleased to dismiss the application with costs and condemnation. - 15. In rejoinder, the Applicants' counsel averred that the purpose of an application for stay of execution is to preserve the subject matter in dispute pending determination of the Appellants' appeal. That the ruling in Misc Applic. No. 519 of 2021, sets aside the temporary injunction order that had preserved the status quo on the suit land and that the Respondent who was always eager to evict the $2<sup>nd</sup>$ Applicant. and only halted by the said order, embarked on the schemes of evicting the $2<sup>nd</sup>$ Applicant and all his tenants from the suit land. That the Applicants applied for an interim stay of execution in Miscellaneous Application No. 0258 of 2022 and the same was granted by this court but the Respondent furthered her illegal activities on the suit land.

16. The Applicants' counsel prayed that the court should exercise its discretion judiciously in favour of the Applicants and grant the stay of execution pending determination of the Applicant's substantive appeal.

## **Court's consideration.**

- 17. It is trite law that once an appeal is pending and there is a serious threat of execution before the hearing of the appeal, the court has to intervene for purposes of serving substantive justice by issuing an order staying the intended execution. However, the general rule is that courts should not order a stay of execution where there is no evidence of an application for execution of a decree. - 18. There is no specific provision of the law that provides for stay of execution of a decree where an appeal lies to the Court of Appeal from the High Court. However, section 98 of the Civil Procedure Act, Cap. 71, vests the High Court with inherent powers to issue such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. This includes making such order for stay of any proceedings in the judgment or ruling appealed from to prevent the appeal from being rendered nugatory. In the case of Lawrence Musiitwa Kyazze v. Eunice Busingye, SCCA NO. 18 of 1990, it was held that:

"An application for stay of execution pending appeal is designed to preserve the subject matter in dispute so that the right of the appellant who is exercising his/her undoubted rights

of appeal are safeguarded and the appeal if successful, is not rendered nugatory".

19. Order 43 rule 4 (3) of the Civil Procedure Rules, S. I. 71-1, which provides for stay of execution of cases appealed against to the High Court, lays down the conditions that courts should consider before allowing an application to stay execution. It stipulates as follows:

> "No order for stay of execution shall be made under sub-rule (1) or (2) of this 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:

> (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".

This rule applies to applications like the instant one.

- 20. Before showing the existence of the above laid down considerations, the first condition which an applicant for stay of execution must show is that he or she lodged a notice of appeal. It is trite law that an appeal to the Court of Appeal is commenced by notice of appeal and not memorandum of appeal. - 21. In the instant application, the $1^{st}$ Applicant has attached to his application a copy of the notice of appeal dated 20<sup>th</sup> June, 2022 and

filed in this court on 22<sup>nd</sup> June, 2022. The Respondent does not also dispute the existence of the appeal. Hence, this condition is satisfied.

- 22. As to whether the Applicants will suffer substantial loss, the $2^{nd}$ Applicant stated in his supporting affidavit that he is afraid that the Respondent may evict him from their land even before their appeal is heard. That the Respondent had earlier threatened to evict the 1<sup>st</sup> Applicant from the suit land and that the dismissal of the suit would automatically mean that the Respondent will go on with what she had intended. - **23.** The orders made in Miscellaneous Application No. 519 of 2021 by this honourable court are very clear. The court concluded thus:

"Having found that the suit is time barred, I find it unnecessary to discuss the second issue whether there is a cause of action against the Applicant. Based on the above analysis, I rule that the application is allowed and order that:

- (a) Civil Suit No. 53 of 2021 be struck out for being time barred: - (b) The temporary injunction issued in Miscellaneous Application No. 74 of 2021 on 28<sup>th</sup> February, 2022 is *hereby vacated;* - (c) Each party shall bear their own costs. - I so rule

This ruling is delivered this $8^{th}$ day of June, 2022 by;

## **FLORENCE NAKACHWA JUDGE**

. . . . . . . . . . . . . . . . . . .

- 24. A literal construction of the above extracted orders shows that there is nothing to execute. There was no order as to costs and since the Respondent is in possession, occupation and utilization of the suit land as per paragraph 5 of her supporting affidavit in Miscellaneous Application No. 519 of 2021, there was no need to issue an eviction order for eviction of the Applicants or anyone from the suit land. - 25. The Applicants have not also shown to this court that there is a pending application for execution before this court or the Execution Division. I rule that the Applicants have not satisfied this court that they will suffer substantial loss if this application is not granted as there is no order to execute by the Respondent. - 26. Having found that there is nothing to execute in Miscellaneous Application No. 519 of 2021. I find it needless to delve into the $3<sup>rd</sup>$ and $4<sup>th</sup>$ conditions to be satisfied by the Applicants for grant of this application. Since this application lacks merit, there is no need for the Applicants to give security for due performance of the order in Miscellaneous Application No. 519 of 2021, since they are not under any obligation to perform any act from such order issued by this court. - 27. Therefore, in the absence of any threat or application for execution by the Respondent and considering the fact that there is nothing to

27. Therefore, in the absence of any threat or application for execution by the Respondent and considering the fact that there is nothing to execute by the Respondent as against the Applicants with regards to the orders made by this court in Miscellaneous Application No. 519 of 2021, this application is dismissed with costs to the Respondent. I so rule and order accordingly.

This ruling is delivered this ....................................


**FLORENCE NAKACHWA JUDGE.**

In the presence of:

- (1) Counsel Okuyo Henry from M/s JM Musisi Advocates, for the Applicants: - (2) Mr. Kyeswa Semu, the 2<sup>nd</sup> Applicant; - (3) Ms. Irene Lwantale, for the Court Clerk.