Burwani and Another v Balikurungi and Another (Civil Application 720 of 2024) [2025] UGCA 92 (1 January 2025)

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION No. 720 OF 2024

(Arising from Civil Appeal No. 047 of 2020; Civil Appeal No. 050 of 2013 and *Civil Suit No. 002 of 2013)*

#### 1. BURWANI BRIGHT

2. MUSTAFA $\equiv$ $\rightarrow$ APPLICANTS

## **VERSUS**

### 1. BALIKURUNGI SIMON

2. BYAKALA ALICE $\overline{\phantom{a}}$ $\blacksquare$ (*Administrators of the estate of the late Philip Kizige Balikurungi*)

## RULING OF CHRISTOPHER GASHIRABAKE, JA (SINGLE JUSTICE)

This application was brought under the provision of Section 12 of the $\lceil 1 \rceil$ Judicature Act, Cap 16; Rules 2 (2); 6 (2) (b): 43 and 44 (1) of the Judicature/Court of Appeal Rules Directions SI 13-1 for orders that;

- 1. That the execution of the orders in the High Court Decree in Civil Appeal No. 050 of 2013 be stayed pending the hearing and determination of the Appeal in this Honourable Court. - In the alternative, an order of Temporally Injunction doth issue $2.$ restraining the Respondents from interfering with the status quo of the suit land until the determination of the Appeal. - $3.$ Costs of this Application be provided for.

$\rightarrow$

#### Brief facts

l2l The background to the application is that a one Phillip Kizige Balikurungi filed in the Chief Magistrates Court of Masindi at Biiso a suit against the Applicants together r,r'ith a one Abdala Mugisha (who later passed on). The Magistrates Court dismissed the suit against the Applicants herein. Phillip Kizige Balikurungi appealed the decision of the Magistrates Court to the High Court of Uganda at Masindi, which overturned the Magistrates Court and decreed that all the land in dispute belongs to the Respondent herein, hence this appeal.

t3] At this stage I point out that the Respondents herein who are said to be Administrators to the estate of tl.re late Phillip Kizige Balikurungi are applying to execute the orders ol the High Court, hence this application.

t4l The application is premised on the following grounds:

- l. That the late Philip Kizige Balikurungi sued the Applicants in the Chief Magistrate Court of Masindi at Biiso vide; Civit Suit No. 002 of 2013. - That the Chief Magistrate's Court dismissed the suit with costs. 2 - That the late Philip Kizige Balikurungi appealed the decision dismissing his suit to the High Court at Masindi. J - That the High Court reversed the decision of the Chief Magistrate's Court and decreed that the suit land belongs to the late Philip Kizige Balikurungi (Respondent then). 4 - That the Applicants appealed to this Honourable Court on matters vide; Civil Appeat No. 047 of2020, which is yet to be heard. 5 - The Respondents (As Administrators of the estate of the late Philip Kizige Balikurungi) have applied and commenced the process to execute the orders of the High Court without formally applying to be added as Administrators. 6

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- 7. That the Applicants applied for stay of execution and vacating the warrant of arrest, which was dismissed hence this Application. - 8. That the Applicants will suffer substantial loss and the Appeal will be rendered nugalory if this Application is not granteo. - 9. That the appeal raises fundamental questions of selective application of the law on limitation. - 10. That the Applicants are in full possession arrd occupation of their property. - t5] The affidavit of Burwani Bright in suppon ofthe application depones thus; - 2. "THAT the late Philip Ki:ige Balikurungi filed a suir against the Applicants bgether with Abdalla Mugisa ( now deceased) in the Chief Magistrates Court of fulusindi at Biiso vide, Civil Suit No. 002 of 2013: Philip Kizipe Baliktuansi Vs. Burv,ani Brishr & 2 Others. - THAT the suit was heard and Courr drsmissed the suit. lCopy of the Judgment is hereto attached marked annexture "8"). J - THAT the lare Philip Kizige Balikurungi appeuled to the High Courr the decision o/ rhe ChieJ Magisrrares Courr dismissing his suit vide: Civil Appeal No. ()5() o{ 2013, Philip Kiziee Balikurunsi Vs. Burvani Brisht & I Oriurs 4 - THAT the High Court decided the appeal againsr rhe Applicants herein. (Cop1 oJ the Judgentent is artacltecl itLtrkeLl a nexture "C"). 5 - 6 THAT rhe Applicants appealed rhe decision of the High Court in this lionourable Courr vide, C'ivil Appeol No. 047 of 2020; Burwani Brisht & 2 Others Vs. Philtp Ki:ise Balikttnrnsi. - 7 THAT the Norice o/ Appeal and the lerter seeking for record of proceedings were dult' sertsed upott the late Philip Kizige

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Balikurungi through his knonn Adt'ocates, M/s Legal Aid Clinic at Masindi. (Coov of the Notice of Appeal and letter is hereto attached marked annexture "D" and "E").

- 8. THAT the Menrorandum of .4ppeal and Record of Appeal were also filed and served upon M/s Legal Aid Clinic at Masindi in this Honourable Court. (Cop1, of the Memorandum of Appeal is hereto attached marked annexture "F"). - 9. THAT be.fore the demise o/ Philip Kizige Balikurungi, he had attempted to execute the decree whereupon the Applicants applied for stay ofexecution. - 10. THAT the Application was heard and dismissed b1t the High Court afier the death of Philip Kizige Balikurungi. (Copy of the Application is hereto attached marked annexture "G"). - <sup>I</sup>l. THAT surprisingly without any further Application to legitimize the Respondent as Administrators, the Learned Assistant Registrar issued a Notice to show cause why execution should not issue. - 12. THAT I am advised by mv Advocates, M/s JP Baingana & Associated Advocates that the Notice has not even complied with the mandatory evi ct ion dire ct i ons. - 13. THAT the Applicants v,ere served with a copy of the Notice to show cause why execution should not issue. (Cop1t of the Notice is hereto attached marked annexture "H"). - 14. THAT I am advised b1t mv Advocates, l,I/s JP Baingana & Associated Adyocates that the Applicants haye been on the suit land for a very long time and the Learned Judge did not consider the issue of limitation in that regard.

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- 15. THAT I am advised by my Advocates, l[/s JP Baingana & Associated Advocates that the Appellate Judge granted property interest to the late Philip Kizige Balikurungi, which was never pleaded. - 16. THAT 1 am advised by my Adtocares, lvI/s JP Baingana & Associated Advocares that the second Appeal highlighrs matters of law, which are arguable. - l'1. 'IHAT the Applicants hav'e been tn .luil possession and occupation oJ'the suit land and the Appeat shall be rendered nugatory if the <sup>A</sup>ppl icant s are er t cted. - 18. THAT there is need to halt ttil rhe irnended actions on the suit land as we exercise our right oJ Appeal. - 19. THAT ir is in the interest o.f .justice that an order for Temporally stay o/ execution of the Judgement attd Decree is granted until the determinarion of rhe Appeal rc the Court of Appeal."

t6] The Respondents never filecl au-r affrilavir ir, repll'to the application, despite evidenoe ol service on record. There is also cvidence of service upon the Respondents personally, but still no affidavit in reply, I rvas constrained to allow this applicatiorr to procee{i exparte.

### Appliclnts' Submissions

l7l John Paui Barngana Counsel lbr thc Applicants filed written submissions wherein he restated the rationale of stav of execution in the authority of Kalyeboga Annolona ris Vs. Hussein Muhammet! Civil An1)lication \o.740 oI 2023 Counsel for the Appiicant submittecr that rnis C curr is clotheci with inherent powers


to grant an order of stay of e.xecution as set out in of the Judicature (Court of r\ppeal) Ruies. Rule I (2). (6) (2) (b) and a2 (l)

t8] Counsel cited the authority tll' Kvamboso Universitv Vs. Prof. Isiah Oundo Ndieee: C. A. C. A No. 341 of 2015 for the conditions, which the Applicant has to prove in order to succeeri in an application for stay of execution which are;

- (l) He has lodged a Notice of Appeal. - (2) Proof that there is a serious or imminent threat of execution of the decree or order and if the Application is not granted, the Appeal would be rendered nugatory. - Show that substantial loss may result to the Applicant unless the stay of execution is granted. (3) - That the Application is not frivolous and has likelihood of success. (4) - Demonstrate that re{irsal to grant the stay rvould inflict more hardship than it would avoid. (5)

t9] On lodgment of Notice of Appeal. Counsel relied on the affidavit evidence of the applicants in the affidavit in support where he depones that, when the High Court decided the appeal against thenr, they prornptly filed and served a notice of appeal which was attached to the affidavit of the Appticants as annexture "D".

[10] On whether there is a serious and eminent threat to execute the decrees if the stay is not granted, Counsel relying on the afTldavit in support of the application stated that before his death Phillip Kizige Balikurungi had attempted to execute the decree where upon the Applicants applied for stay of execution, which was dismissed long after the death of Phillip Kizige Balikurungi.

)Iw"t [11] That the Respondents did apply for the execution as administrators of the estate of the late Phillip Kizige Balikurungi, yet, there was no application to substitute the deceased person had ever been filed by the Respondents herein.

[12] The Applicants submitted that the Applicants have been on the suit land for a very long time but that the issue of limitation of action was not considered by the Trial Judge. Counsel also submitted that the eminent threat to the status quo was the impending eviction without regard to the directions of the Constitution (Land eviction) Practice Direction, 2021.

[13] As regards substantial loss that may result if eviction is effected, Counsel referring to the affidavit evidence in support of the application submitted that the Applicants have been in full possession and occupation of the suit land and that the appeal raise serious matters of law that require this Court's consideration.

[14] The Applicants' Counsel outlined six (6) grounds of appeal all on matters of law in the Memorandum of Appeal attached as annexture "F", which are

- "The Learned Appellate Judge erred in law in entertaining an appeal 1. *filed out of time.* - 2. The Learned Appellate Judge erred in law in selectively applying the law on limitation. - 3. The Learned Appellate Judge erred in law when he made an order as to *the property that was never pleaded.* - 4. The Learned Appellate Judge erred in law when he held that the Trial Magistrate could not exercise his discretion to award costs to the *Appellant.*

- 5. The Learned .4ppellate Judge erued land. in latrt wlten he decreed undefined - 6. The Learned Appellute Judge erred undocwnented claim of a gi-fi o{ hnci. in lctw in dccepting a claim of an

[5] He added that the cause of action centred around a purported claim to recover land which had been in the occupation of the Applicants for such a long time, the appeal itself had been filed out of time hence the decision on appeal was itself an illegality an,J that the lorver Court entertained matters that were never pleaded nor cauvassed during hear:ng.

[16] He demonstrated that refusal to grant an order of stay of execution would inflict more hardship. Counsel submitted that the Applicants have been utilizing and occupying the suit land since their childhood and already enjoy full occupation and utilization therc'ol. -fhat the adnrission ofRespondents at the execution process without the Appiicants r-rc,tice n'as unlail and an illegalit-1..

117) That the Respondents to the main appeal died a few months ago and it would be unfair to allorv the execution b1, tirird parties to the appeal before the appeal is disposed of.

[18] As regards temporalll, injunction. the Applicants argued that the appeal raises triable issues of lau, rangine t'rom limitation of action, unpleaded orders made by Court. failure to evaluate evidence as a whole, granting orders on undefined land, which all raise prima facie case with high probability of success and that the suit was not frivolous and vexatious.

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[19] He argued that the Applicants were in possession of the suit land and as such if eviction is done without completion of their right of appeal, the injury is **irreparable** and cannot be compensated for by damages. Counsel cited a persuasive authority of Uganda Electricity Transmission Company Ltd Vs. Citi Bank Uganda Ltd and 2 Others; HCMA No. 1397 of 2022, as to what amounted to irreparable damage. Counsel submitted that since the Applicants were in occupation and utilization, even the balance of convenience were in favour of granting the application.

[20] The inherent powers of this Court under Rule 2 (3) of this Court Rules grants unfettered discretion to this Court to make orders necessary for the ends of justice and to prevent abuse of Court process.

[21] Rule 2 (2) of the Judicature (Court of Appeal Rules) Direction Rules provides thus;

"Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, or the High Court, to make such orders as may be *necessary for attaining the ends of justice or to prevent abuse of the process of* any such court, and that power shall extend to setting aside judgments which have been proved null and void after they have been passed, and shall be *exercised to prevent abuse of the process of any court caused by delay.*"

**Consideration of application**

[22] The power of Court to grant a stay of execution is set out in Rule 6 (2) of the **Rules of this Court which provides as follows;**

"Subject to subrule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may—

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l23l This application seeks for a stay of execution of a decree arising from the Judgement and orders against the Applicants in the High Court Civil Appeal No. 050 of 2013 pending the hearing anci disposai olthe. A,ppeal in Civil Appeal No. 047 of 2020 filed in this Court.

[24) The conditions upon which this Cotrrt may grant a stay of execution have been laid do'\*'n in several authorities. In Kvamboso Ltniversitv Vs. Prof. Isiah Oundo \ diegc (supra) cited by Counsel for the Applicants Court laid down the conditions as

- (l) He has lodged a Notice of Appeal. - (2) Prove that there is a serious or imminent threat of execution of the decree or order and if the Application is not granted, the Appeal would be rendered nugatory. - Show that substantial loss may result to the Applicant unless the stay of execution is granted. (3) - That the Application is not frivolous and has likelihood ofsuccess. (4) - Demonstrate that refusal to gram the stay rvould ini'lict more hardship than it would avoid. (5)

125) I note that the Applicants did file the notice of appeal marked as annexture "D" to the affidavit in support of this application and a memorandum of appeal marked as annexture "G". A perusal of the memorandum of appeal show that it

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raises seven grounds of appeal on matters of law including failure by the Judge to **evaluate** the evidence and grounds on limitation of action. Therefore, an appeal has been filed in this Court.

[26] As regards serious and eminent threat of execution, the affidavit evidence of the Applicant attaches annexture "H" a notice to show cause filed by the Applicants as Administrators of the estate of the late Phillip Kizige Balikurungi **although** in bracket it shows that the Respondents as Administrators of the estate.

[27] According to the affidavit in support of the application the said Phillip Kizige Balikurungi is deceased and there was no process in Court that substituted him as required by the law.

[28] It would mean that the Administrators have not formally been added to the matter being executed, let alone the appeal in this Court. This means that there is disingenuous attempt to execute against the Applicants. The Applicants who are in **possession** of the land in dispute have an appeal in this Court stand to lose their right of appeal if execution is carried out by third parties who are not yet formally **added** to the appeal as required by the law.

[29] The right of appeal of the Applicants will be eroded if execution ensues which in itself is substantial loss to a person who is in physical possession. The several grounds of appeal which raise matters of law are not frivolous and as such, **merit a hearing and determination of this Court.**

[30] The Applicants have also shown that the damage to be suffered cannot be **compensated** for monetary compensation. The fact that third parties are attempting to execute the orders of Court without being formally incorporated in a due process

is matter that jeopardize the Applicants' right to appeal. The Applicants being in physical possession and for a very. long time inform me that the loss of the land, with a pending appeai in this Court camot be atoned by rvay of monetary compensation.

[31] I therefbre, flnd that the Applicants have satisfied this Court that they will suffer irreparable damage il the application is not granted. I am not in doubt that there is ne ed :o pl eserve tile sta:us .1tio of ihe disputed land at Biiso, Buliisa District.

t32l In the prernises I rrould alios the application u,ith the tbllowing terms;

- An order of stay cf execution of the decree in the High Court Civil Appeal No. 050 of 2013 until the determination of Civil Appeal No. 047 of 2020 n Court of Appeal. I - The status quo of the suit land at Biiso Buliisa District be maintained until the appeal is heard and determined. ) - Costs shall abide the outcome of the appeal. 3

I so order

+ t Date S1 cne and delivered at Kampala this 2025 day of

f. I

Christopher Gashirabake JUSTICE OF APPEAL