Byoleko Robert Mutazindwa and Another v Rehema Turyakira Omar (Miscellaneous Application No. 1188 of 2025) [2025] UGHCLD 137 (14 July 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO. 1188 OF 2025** *(Arising from Civil Suit No. 883 of 2016)* **1. BYOLEKO ROBERT MUTAZINDWA 2. KANYARUSOKE EDWARD ::::::::::::::::::::::::::::::::: APPLICANTS (Administrators of the estate of the Late Byoleko Epaphroditus) VERSUS**

# **REHEMA TURYAKIRA OMAR :::::::::::::::::::::::::::::::: RESPONDENT**

# **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 Cap 16, Section 98 of the Civil Procedure Act Cap 282, Order 43 rule 4 and Order 52 rules 1,2 & 3 of the Civil Procedure Rules (CPR) for orders that: - i) The execution of the decree be stayed pending the hearing and determination of Court of Appeal Civil Appeal No. 343 of 2025.

ii) Provision be made for payment of costs of this application *Background;*

- 2. The Respondent instituted Civil suit No. 883 of 2016 seeking orders among which is to be granted an access road for the property purchased from the Applicant's father situate at Plot 2E Commercial Lane Naguru registered as LRV KCCA 181 Folio 8 wherein Court delivered judgement in favour of the Respondent ordering the Commissioner Land Registration to carry out a resurvey of Plot 32 Ntinda Road to create plots 32A and 32B Ntinda II Road which created plot 3E. - 3. The Applicants have since filed an appeal in the Court of appeal vide Civil Appeal No. 343 of 2025, however, the Respondent has since extracted the order thus commencing the process of execution which the Applicants seek to stay in the instant application.

### *Applicant's evidence;*

4. The application is supported by an affidavit deponed by **BYOLEKO ROBERT MUTAZINDWA** the 1st applicant who deponed on behalf of the 2nd Applicant which briefly states as follows;

- i) That Byoleko, our father was the registered proprietor of land comprised in and known as Plot 32A Ntinda 2 road who sold part of the undeveloped part of the said land to the respondent. - ii) That subsequent to the sale, the respondent claimed that the land which was sold to her had no access road and instituted a suit against our late father who passed on before the suit could be heard and finally determined and we were joined to the suit as administrators. - iii) That this Honorable Court heard the suit and ordered that the entire land be resurveyed to create an access road for the respondent. The respondent has already extracted the order though irregular and is in the process of having the same implemented. - iv) That by the time our late father sold off the lower part of the land already fully developed the upper part of the subject land meaning that a resurvey to create an access road would result into demolition of some structures which was not his intention at the time of selling off the lower part of the land and this is likely to result into substantial loss to the estate.

- v) That being aggrieved by the judgement and the orders, we have already preferred an appeal to the Court of appeal which is pending hearing and determination, it has a high likelihood of success but the same may be rendered nugatory if any execution is not stayed. - vi) That the application has been made without unreasonable delay, having been filed one week after the judgement, even having already filed the appeal in the Court of appeal. That we are ready and willing to give security for due performance of the decree in consideration of the present application. - vii) That the letter by the permanent secretary, ministry of land, housing and urban planning clearly demonstrates that there is a threat of execution since the letter is calling upon the office of the senior district staff surveyor to resurvey the land as ordered by Court.

### *Respondent's evidence;*

5. The application is responded to by an affidavit in reply deponed by **REHEMA TURYAKIRA OMAR** the respondent which briefly states as follows;

- i) I have with the aid of my lawyers of M/s Kafeero & Co. Advocates read and understood the contents of the Notice of Motion and the affidavit in support and at the commencement of hearing this application, I shall raise a preliminary objection to the effect that the applicant's letters of administration expired and therefore the Applicants have no locus to lodge this application. - ii) That I am the registered proprietor of lease comprised in Plot 2E commercial lane Naguru registered as LRV KCCA 181 Folio and that the judgement handed down by the court canvassed all the averments in paragraphs 2,3,4,5 & 6 of the affidavit in support and are now res judicata. - iii) That the Court ordered that I am entitled to an access road from the applicants which can be earmarked on the title of the land, a resurvey of Plot 32 Ntinda II Road by the commissioner Land Registration, general damages and interest and that a Court order can never be irregular since we extracted the order in the proper procedure. - iv) That as per the KCCA planning guidelines, there is already an existing access road off Ntinda II Road which leads directly to the plot that I purchased and in case the existing access road

off Ntinda II Road does not measure up to the 6 meters as recommended by KCCA, the demolition if any would not amount to any substantial loss.

- v) That by the time the late Byoleko Epaphroditus sold to me my plot, the upper plot as alluded to by the applicants was not fully developed as a matter of fact it is still not fully developed, the applicants have only added plants in the space between the main house and the boy's quarter. - vi) That I have not been able to develop my plot for 12years now because of the obstacle of an access road yet I paid the entire consideration to the late Byoleko Epaphroditus which has caused me tremendous unimaginable loss that cannot be compared to the loss that the applicants are alleging to likely suffer. - vii) That I have been advised by my lawyers whose advise I verily believe to be true that Court orders are not issued in vain and if need be, if the area within which the access road is to be parceled is in line of any building, the court order must be implemented and that the pendency of an appeal and filing an application on time does not amount to stay of execution and

that this Honourable Court is not clothed with the jurisdiction to determine whether or not the intended appeal has a likelihood of success.

viii) That I have been in Court since 2016 seeking access to my property and no amount of security from the applicant is likely to compensate for all this time, it will therefore be unfair if this application is granted.

# *In rejoinder*

i) That the claim that we have no locus standi to file this application because the grant of letters of administration expired is devoid of any merit since the application was filed on 28th May 2025 when the said letters of administration were still valid and operational and the subsequent expiry did not in any way affect our locus standi and the validity of the application since it was filed before and The Succession Act does not invalidate the proceedings instituted before the expiry of the letters of administration and the law is silent on what happens when the grant expires during the pendency of Court proceedings.

- ii) That we have already applied for the renewal and extension of the said letters of administration and the application is still pending before the High Court Family division. That the claim of res judicata is misconceived. - iii)That we were advised by our lawyers whose advise we verily believe to be true that an order of Court ought to be drafted by the successful party and presented to the other party for approval which was not done in this case. - iv) That there is a likelihood of demolishing the structures which supports the applicants' case on suffering substantial loss however small it may be, the court order has no order of demolition of any building on the suit land yet the respondent's desired access road involves demolition of part of the structures and we are in court to seek a remedy of stay of execution so that the pending appeal is not rendered nugatory.

#### *Representation;*

6. The applicants were represented M/s S. K Kiiza & Co. Advocates whereas the Respondent was represented by M/s Ismail Wandera Advocates and legal consultants and M/s Kafeero & Co. Advocates.

Both parties filed their affidavits and submissions which I have considered in the determination of this application.

### *Issue for determination;*

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

- 7. Before I delve into the merits of this application, the Respondent raised a preliminary objection contending that the Applicants lack locus standi to maintain this action as their letters of administration have expired. - 8. The Applicants countered this objection with two arguments: first, that at the time of filing the application, the grant of letters of administration had not yet expired; and second, that they have since applied for renewal of the letters of administration. They further submit that the Succession Act of Uganda, as amended, is silent on this particular issue. - 9. The crux of this preliminary objection is whether the expiration of letters of administration after the commencement of proceedings affects the locus standi of the Applicants to continue with the

proceedings and whether the application for renewal of the letters of administration cures any defect in locus standi.

10. Letters of administration are governed by the Succession Act of Uganda (Cap. 268) as amended which empowers administrators to act on behalf of the estate of the deceased and to institute legal proceedings in that capacity. However, as correctly pointed out by the Applicants, the Act is silent on the specific question of whether proceedings instituted by administrators whose letters have subsequently expired can be sustained.

# **Analysis**

11. It is a fundamental principle of law that the question of locus standi is determined at the time of institution of proceedings. The capacity to sue must exist at the commencement of the action. **(See Fakrudin Vallibhai Kapasi & Anor v Kampala District Land Board & Anor HCCS No. 570 of 2015)** In the present case, it is not disputed that at the time the Applicants filed this application, their letters of administration were still valid. This suggests that at the critical time of filing, the Applicants had the requisite standing to institute these proceedings. - 12. The Court notes that there is a distinction between initial standing to sue and continued capacity to maintain an action. While the former is determined at the time of filing, the latter may be affected by subsequent events. However, in the absence of specific statutory provisions to the contrary, the general rule is that once proceedings are properly instituted, subsequent events do not retroactively invalidate the proceedings. - 13. The Applicants have indicated that they have applied for renewal of their letters of administration. This demonstrates their intention to maintain their legal status as administrators of the estate. - 14. During cross examination of the applicant conducted on the 17th of June 2025, he presented to this court copy of the new letters of administration granted by court on the 16th of June 2025. - 15. Therefore, the preliminary objection raised by counsel for the respondent stands overruled by this court.

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

**Whether the application merits the grant of an order for stay of execution pending the determination of the appeal?**

- 16. Stay of execution is a legal mechanism aimed to provide crucial protection to appellants who wish to challenge a decision without suffering the immediate consequences of the judgment while their appeal is pending. Order 43 of the Civil Procedure Rules provides the primary legal basis for stay of execution pending an appeal, whereas Rule 4 (2) endows the Court which passed the decree to stay execution of such orders where sufficient cause has been shown. - 17. 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*" - 18. The principles governing the grant of an order of stay of execution pending an appeal are well established in our jurisprudence, as enunciated in the case of 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.* - 19. This 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* 20. On the application, the applicants under paragraph 9 of the affidavit in support state that they lodged an appeal which is pending hearing and determination before the Court of Appeal vide Civil Appeal No. 343 of 2025. In further proof of the existence of the appeal, the Applicants attached to their application a memorandum of appeal marked annexture D on the affidavit in support of the application. Therefore, I find this condition is satisfied by the applicants.

# *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*

- 21. Imminent threat means a condition that is reasonably certain to place the applicant's interest in direct peril and is immediate and impending and not merely remote, uncertain, or contingent. **(Formula Feeds Limited & 2 others v KCB Bank limited MA No. 1647 of 2022, arising from civil suit No. 289 of 2014)** - 22. The applicants under paragraph 7 & 13 of the affidavit in support state, that the Respondent has already extracted an order and is in the process of having the same implemented since she obtained a letter from the Permanent Secretary Ministry of Lands, Housing and

urban planning calling upon the office of the Senior District Staff Surveyor to resurvey the land as ordered by Court which to the applicants is a demonstration of the Respondent seeking to have the order executed.

- 23. The Respondent on the other hand whilst responding to the contents of paragraph 13 of the affidavit in support stated under paragraph 12 of her affidavit in reply that Court orders are not issued in vain and that, if need be, if the area within which the access road is to be parceled is in line of any building, the court order must be implemented. In rejoinder the applicants stated under paragraphs 10 & 11, that there is a likelihood of demolishing the structures to create the desired access road and yet the court order has no demolition orders. - 24. A cursory perusal of annexture C, the report to The Director Physical planning as attached on the Respondent's affidavit in reply, shows that the locality is developed with residential properties, that the access road to Plot 2E was properly planned as indicated on the cadastral print of the certificate of title for Plot 2E but the same was altered when Plot 2A-2B was being created and in the said report the

request for sub divisions was granted subject to the conditions therein.

25. Among the orders issued by this Court was that the Commissioner Land Registration carries out a survey of Plot 32 Ntinda II Road and create an access road from Ntinda II Road. I must confirm that the process was already kickstarted by the Respondent following which subdivisions shall be conducted to demarcate off the access road measuring 5 meters as recommended by the Physical Planning department. This Court is convinced that the Respondent is in the process of executing the order vide Civil Suit No. 883 of 2016 which is currently posing an imminent threat to the Applicants who preferred an appeal. Therefore, this condition is also satisfied.

# *iii) Substantial loss my result to the applicants unless the application for stay is granted.*

16. The Applicants stated under paragraph 8 that the resurvey to create an access road would result into demolition of some structures which was not the intention of their late father who sold the land to the Respondent. The Respondent on the other hand states that the upper part of the land is not fully developed and that the applicants

have only added plants in the space between the main house and the boy's quarter.

17. I note that the Applicants have demonstrated that the execution of the decree would cause substantial loss since there would be a likelihood of demolition of some structures following the subdivisions and creation of the access road.

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

- 17. The judgement was delivered on 6th May 2025, the order extracted and signed on 7th May 2025 and the Application was filed on 14th May 2025 thus the Application was 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* - 18. The Applicant has expressed willingness to provide security for due performance of the decree in consideration of this application. 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.

- 19. Bearing in mind that the Respondent purchased the property subject of dispute from the Applicant's late father and the Applicants were joined onto the suit as Administrators to their late father's estate and all their efforts now are aimed at preserving the estate property just as the Respondent wishes to utilize her property. Therefore, putting both interests into consideration, I do not find it necessary for the applicants to deposit security for the due performance of the decree in the instant case. - 20. 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. - 21. In the result, this Application succeeds and this Court hereby stays execution of the decree vide HCCS No. 883 of 2016 with no orders as to costs

#### **NALUZZE AISHA BATALA**

### **Ag. JUDGE.**

### **14/07/2025**

**Delivered Electronically via ECCMIS on the 14 th day of July 2025.**