China Communications Construction Company Limited v Kivumbi (Miscellaneous Application 1233 of 2024) [2025] UGHCCD 26 (14 February 2025)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLENEOUS APPLICATION NO:1233 OF 2024 (ARISING FROM MISCELLENEOUS APPLICATION NO:257 OF 2024) (ARISING FROM MAKINDYE CHEF MAGISTRATE'S COURT CIVIL SUIT NO:59 OF 2016)**

**CHINA COMMUNICATIONS CONSTRUCTION COMPANY LTD:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

# **VERSUS**

# **SALONGO KIVUMBI CHRISTOPHER::::::::::::::::::::::::::::::::RESPONDENT** *BEFORE: HON. JUSTICE SSEKAANA MUSA*

#### **RULING**

The Applicant brought this application under Section 98 of the Civil Procedure Act CAP 71, Section 33 of the Judicature Act cap 13, Order 52 rules 1 and 3 of the Civil Procedure Rules 71-1 seeking orders that;

*1. Execution of the decree in Chief Magistrates Court of Makindye Civil Suit No.59 of 2016 and all other Applications and or proceedings attendant thereto be stayed pending the hearing and final determination of the appeal vide Miscellaneous Application No:257 of 202.*

*2. Costs of the application be provided for.*

The application is supported by the affidavit of DONG YINGNAN-the manager of the applicant and briefly, they are that;

- a. That on the 6th of March 2024, the learned Magistrate issued her judgment in favor of the respondent in inter alia the terms that the defendant shall pay the Plaintiff general damages of Ug.shs.18,000,000/= and that costs of the suit be paid to the Plaintiff. - b. That the Applicant has duly paid the entire decretal amount of Ug.shs.18,000,000/= to the Respondent… - c. That the respondent has through his lawyers filed a bill of costs which was taxed and allowed at Ug.shs.17,730,000/= and the applicant considers this amount excessive. - d. That the applicant has filed an appeal vide Misc. Application No:257 of 2024 seeking to review and set aside the taxing officer's decision and award cost in Civil Suit No: 59 of 2016 in the Chief Magistrates Court of Makindye and the appeal is yet to be heard. - e. That the Respondent is threatening to execute in respect of the unlawful costs awarded to him before the application to set aside the impugned decision is heard and determined.

f. That unless the respondent is restrained by the court, his intent on executing the Judgment /decree against the applicant and it shall cause grave miscarriage of justice and cause irreparable loss to the Applicant.

The respondent Ssalongo Kivumbi Christopher-did not file an affidavit in reply to the application. The affidavit that is on record dated 21st January 2025 is of a one Ssebagala Kimuli who is not a party to the this suit.

In the said affidavit, SSEBAGGALA KIMULI-who is not a party to this suit states that the taxation of the bill was not excessive as claimed by the applicant but it was done taking into account the time they spent in court.

The applicant was represented by Counsel Paul Ekochu while the respondent was represented by Moses Okurut.

#### *DETERMINATION*

## *Whether there are any grounds for stay of Execution?*

Counsel for the applicant submitted that the application justifies the grant of the instant application for stay of proceedings in the instant matter.

That the applicant has filed an appeal vie Misc. Application No.257 of 2024 against the Magistrates taxation decision in Makindye Chief Magistrates Court in Civil Suit No.59 of 2016 and the same is pending before this Honorable court. The said application is yet to be fixed, heard and determined by the court. That the outcomes of the said appeal will render the continuation of proceedings in the lower court unjust or prejudicial.

Counsel for the applicant submitted that the said appeal raises substantial legal issues which could potentially result in a different outcome. That if the proceedings in the lower court continue, the applicant's appeal will be rendered nugatory.

That if the proceedings are allowed to continue while the appeal is pending, the applicant may suffer irreparable harm as orders made during these proceedings may be difficult or impossible to reverse if the appeal succeeds. That the Respondent has taken out garnishee proceedings against the applicant and if the respondent is allowed to continue, the applicant's finances shall unfairly be captured and recourse and or reversing the garnishee process will be difficult if not impossible.

Counsel for the applicant submitted that the pending appeal has a high possibility of success. That the appeal is strong and based on strong grounds such as errors of law and fact in the decision of the lower court.

Counsel further submitted that the application has been brought without unreasonable delay and that the grant of the said application will serve to preserve the status quo pending final determination of the appeal. That the balance of convenience lies squarely with the applicant. That the grant of a stay is necessary to prevent miscarriage of justice and to allow the appeal process to unfold without unnecessary interference.

On the other hand, counsel for the respondent submitted that the applicant's pending appeal has no chances of success because the taxing officer did not breach any principles of taxation but the Applicant is merely not agreeing with the final figures awarded to the Respondent.

Counsel for the respondent further submitted that the applicant has not attached a copy of its appeal which shows the grounds of appeal to this application hence it's not possible to prove if the said appeal has any chances of success. That in absence of this, the applicant has failed to prove that his appeal has high likelihood of success. That the applicant has also not proved in its affidavit what substantial loss it will incur if this application is not granted. It merely alleges that it will suffer substantial loss.

Counsel for the respondent further submitted that the applicant has not given security for due performance of the decree or order. That the applicant has only paid damages awarded to the respondent and has not paid the award of costs under the order of the Trial magistrate. That the applicant has not even paid the 10% interest awarded to the respondent. Counsel thus moved court to dismiss this application with costs.

## **Analysis**

The grounds upon which an application can granted and the principles upon which a stay of execution will be granted are laid down as follows:

- 1. Applicant must establish that his appeal has likelihood of success; or a prima facie case of his right of appeal. - 2. That the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. - 3. If 1-2 above have not been established, court must consider where the balance of convenience lies.

The supreme court further added thus; another principle is that the applicant must also establish that the application was instituted without delay. *Lawrence Musitwa Kyazze v Eunice Busingye SCCA No. 18 of 1990*

The courts have further expanded the conditions for the grant of an order of stay to include; a serious and eminent threat of execution of the decree or order and if the application is not granted the appeal would be rendered nugatory.

Order 43 rule 4(2), provides for stay of execution by high court in case sufficient cause is shown.

*Order 43 rules 4(3) provides for grounds of an application for stay of execution. That the court must be 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.*

The purpose of the stay is to preserve the status quo and avoid any possible irreparable loss or injury to either of the parties.

The policy of the court is that in exceptional circumstances it should exercise judicial discretion such that a pending matter or suit is not rendered nugatory, a stay of execution should be granted irrespective of whether or not it is a monetary claim or decree. It is the discretion of the court to grant or refuse a stay of execution but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. *Cotecna Inspection SA v Hems Group Trading Limited Court of Appeal Civil Application No. 303 of 2000 (CAK)*

The applicants are challenging the taxation award to be excessive and its execution will jeopardize the operations of the company and the recovery of the paid money may not be easy. The respondent has not deposed any affidavit in this matter and appears to working with proxies.

This court will not engage into determining the propriety of the intended appeal since this is the preserve of the appellate court's jurisdiction at the time the appeal is heard.

This court in exercise of its discretion due to the peculiar circumstances of the case grants a stay of execution in order to enable the applicant take their chance in the court of appeal.

The costs shall be in the cause.

I so Order

*Ssekaana Musa JUDGE 14 th February 2025*