DFCU Bank Limited v Crane Management Services Limited (Miscellaneous Application No. 0236 of 2025) [2025] UGHC 142 (1 April 2025) | Stay Of Execution | Esheria

DFCU Bank Limited v Crane Management Services Limited (Miscellaneous Application No. 0236 of 2025) [2025] UGHC 142 (1 April 2025)

Full Case Text

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# **IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA COMMERCIAL DIVISION**

Reportable Miscellaneous Application No. 0236 of 2025 (Arising from Civil Suit No. 0109 of 2016)

In the matter between

**DFCU BANK LIMITED APPLICANT**

**And**

# **CRANE MANAGEMENT SERVICES LIMITED RESPONDENT**

**Heard: 27th March, 2025. Delivered: 1st April, 2025.**

*Civil Procedure - stay of execution - court must be satisfied that the case is arguable on appeal or that the case cannot be categorised as hopeless - In cases involving only monetary awards, special or exceptional circumstances justifying the grant of a stay of execution - The most important factor that must weigh with any Court dealing with motion for stay of execution is the question whether the judgment creditors will be able to refund the judgment debt if the appeal succeeds - Courts are more likely to grant a stay of execution when there is a strong possibility that the execution of the decree will render the appellant unable to afford the costs of the appeal, or otherwise cripple their ability to pursue their case, thereby paralysing the exercise of their right of appeal - A judgment debtor though cannot obtain a stay of execution by arguing only that he or she would be ruined financially.*

# **RULING**

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# **STEPHEN MUBIRU, J.**

#### The background;

[1] The respondent is the Manager and letting agent of M/s Meera Investments Limited's multiple properties in respect of which it executed a five-year tenancy agreement with the applicant, commencing on 1st October, 2013 and ending on 30th September, 2018. The applicant having defaulted on its rental obligations, the respondent filed a suit against it for the recovery of arrears of rent with interest, general damages and costs in the sum of US \$ 385,728.54 and shs. 2,998,558,624/=. Judgment was subsequently on 16th August, 2024 entered in favour of the respondent in those amounts with shs. 400,000,000/= as general damages and interest on the decretal sum at the rate of 10% from 1st February 2018 until payment in full. A ruling on the respondent's bill of costs delivered on 22nd January, 2025. On the 6th February, 2025 the respondent filed an application for execution of the decree by Garnishee and attachment of the monies on the applicant's known accounts in Bank of Uganda to recover the decretal total sum of shs. 8,069,802,038/=.

#### The application;

- [2] The application by Notice of motion is made under the provisions of section 33 of *The Judicature Act*, section 98 of *The Civil Procedure Act*, Order 22 Rules 20 (1) and 23, Order 43 Rule 4 and Order 52 Rules I and 3 of *The Civil Procedure Rules*. The applicant seeks an order staying the execution of the judgment and decree in High Court Civil Suit No. 109 of 2018 and all orders flowing therefrom, pending the hearing and final determination of the appeal arising therefrom, and the costs of the application. - [3] It is the applicants' case that it has since filed an appeal against the judgment which appeal is currently pending hearing and determination by the Court of Appeal and has high chances of success in the applicant's favour. In the event that execution is not stayed, the said appeal will be rendered nugatory and/ or stand defeated, yet there is an imminent threat of execution of the decree and other

orders flowing therefrom. the applicant has however learnt that the Respondent has filed *Misc. Application No. 0197 of 2025* wherein it seeks inter alia; a Garnishee Order against the applicant attaching its Bank accounts held in Bank of Uganda to satisfy the decree and costs. The applicant is ready and willing to provide security for the performance of the decree upon such terms as may be determined by this Court.

#### The respondent's affidavit in reply;

- [4] By its affidavit in reply, the respondent contends that this application is a reaction to the garnishee application with an intention of averting and disrupting the execution proceedings, rendering the application malafide. Despite not having a right of audience in the garnishee proceedings, the applicant and counsel appeared in court at the *ex-parte* hearing, were entertained by the learned Registrar and sought to stop execution procecdings pursuant to the filing of this application, whereof the said application was undetermined and rather forwarded to this court and the same is pending hearing. The mere filing of a Notice of appeal almost seven months ago is not a compelling reason for the grant of an order for stay of execution. There is no imminent threat of execution of the judgement and orders of court. The alleged threat has already been overtaken by events, the applicant having sabotaged the hearing and caused the application for execution to be transferred to this Court. - [5] The subject decree being a money decree, payment of the decretal sums by the applicant has not in any way been demonstrated as capable of rendering any intended appeal nugatory or rendering any intended appeal and relief sought incapable of being enforceable. the respondent, as a landlord and letting agent of Meera Investments Limited is a highly well-known credible and financially sound entity that has the financial capacity to refund the decretal sums in the unlikely event that the applicant's intended /futuristic appeal were to succeed. The applicant has kept the respondent out of its money since 2016 and an order of stay

of execution would continue to inconvenience and cause hardship to the respondent to the benefit of the applicant which continues to enjoy the respondent's money, despite being a judgement debtor.

### The submissions of Counsel for the applicant;

- [6] Counsel for the applicant, submitted that much as it is a monetary award if the applicant pays out a certain amount of money, the amount involved has the capacity to impair the applicant's ability to present its appeal. It will affect the operations of the applicant. It will also affect its ability to sustain an appeal. The respondent is merely an agent of a disclosed principal. In paragraph 16 of the affidavit in reply the respondent states that they are a letting agent of an entity that had financial capacity to refund. It is not the respondent but a third party whose means they are fronting. The third party is not involved in the litigation. They have not averred that they have the means to pay the sums. - [7] The applicant can provide security for due performance. The supplementary affidavit in rejoinder is not intended to sneak it in nor reopen pleadings. The purpose is to clarify. The new facts could should not have been included; they can be disregarded. The tenant is estopped from denying the title of the landlord. It is still an arguable point on appeal. By the affidavit in reply paragraph 16 (3) the reference to the landlord is a disguised their financial muscle in the weight of the landlord. This is meant to bolster their image. The amount involved is over 8 billion depositors' money. The minimum capital base is shs. 150,000,000,000/= Taking this out of that affects the applicant's operations will cripple it. We propose 20% deposit as security for due performance instead.

#### The submissions of Counsel for the respondent;

[8] Counsel for the respondent submitted that the delay of eight months is not explained. In rejoinder they state that the judge left. They have participated in the entire taxation process. The applicant should demonstrate that the appeal will be rendered nugatory. There is no draft memorandum of appeal. the proceedings were availed before August last year. Paragraph 6 of the affidavit in support. The manner in which it would be render nugatory is not stated. They did not plea that the respondent has no capacity to refund. They have not led evidence that the respondent is impecunious. They have contracted with the respondent from 2017. The incapacitation by payment is not in the pleadings. Paragraph 16 of reply is not contested in the rejoinder. The issue did not arise yet it was a question of law and evidence, the respondent did not have an opportunity to adduce evidence of the contractual relationship it has with the registered proprietor under which it was granted exclusive possession. Authorisation includes exclusive possession. The agent can sue in its name

- [9] The special meaning here relates to a right legal or contractual to let the premises. The possession creates a right to let which then cannot be denied under section 115 of *The Evidence Act*. In the J*. C. Chatrath and Another v. Shah Cedar Mart case* it was held that a tenant is stopped from challenging the title of the landlord. Payment of rent is a *prima facie* a recognition of title of the person to whom it is paid and operates as an estoppel against the tenant, if he disputed the title. In *Halsbury's Laws of England*, the estoppel would bar them. The respondent was granted possession as a landlord. It executed the tenancies as landlord. There was also a counterclaim by the applicant suing the respondent for prepaid rent. The grounds they propose to raise on appeal do not include the ground of legal capacity of the respondent. - [10] The applicant has filed a supplementary affidavit in rejoinder and it has been served by WhatsApp this morning. It purpose is to patch up gaps that were raised during the submission at the last hearing. Paragraph 3 is a response to the submissions. They had not attached any draft memorandum of appeal. They have now attached one as an afterthought. Ground 3 relates to the issue of nugatory appeal. Para 7, 8 and 8 of the supplementary one is a patch up. Paragraph 10 of the affidavit. They had not pleaded lack of capacity to refund. Filing an affidavit

after submissions is prejudicial and not legally supported. In *Mutembuli Yusuf v. Nangowmu* it was held that such affidavits should be struck out. The presumption od ability to pay is not upset by the applicant. The capacity to cripple them on appeal is not raised at all. Security for due performance would be at 75%. *Kabiito Karamagi v. DFCU* should be applied.

### The decision;

- [11] According to Order 43 rule 4 (3) of *The Civil Procedure Rules*, an application of this nature must be made after notice of appeal has been filed and the applicant should be prepared to meet the conditions set out in that Order including; furnishing proof of the fact that substantial loss may result to the applicant unless the stay of execution is granted; that the application has been made without unreasonable delay; and that the applicant has given security for due performance of the decree or order as may ultimately be binding upon him (see *Lawrence Musiitwa Kyazze v. Eunice Businge, S. C. Civil Application No 18 of 1990*). - [12] The Court of Appeal in *Kyambogo University v. Prof. Isaiah Omolo Ndiege, C. A. Misc. Civil Application No 341 of 2013* expanded the considerations to include: there is serious or imminent threat of execution of the decree or order and if the application is not granted, the appeal would be rendered nugatory; that the appeal is not frivolous and has a likelihood of success; that refusal to grant the stay would inflict more hardship than it would avoid. - i. A notice of appeal has been filed. - [13] The applicant has satisfied this requirement. The applicant filed a notice of appeal on 29th August, 2024 and applied for certified copy of the record of proceedings. The applicant has satisfied this requirement.

### ii. The application has been made without unreasonable delay.

- [14] Applications for a stay of execution ought to be made within a reasonable time. Whether delay is unreasonable will depend on the peculiar facts of each case. Delay must be assessed according to the circumstances of each case. The reckoning of time to determine if a delay is unreasonable begins at the time the decree or order is sealed and becomes enforceable. - [15] In the instant case, the judgment was rendered on 16th August, 2024. The application was filed nearly six months later on 12th February, 2025. This was six days after the respondent had filed an *ex-parte* garnishee application 6th February, 2025. I therefore do not find any unreasonable delay in the filing this application.

### iii. The appeal is not frivolous and has a likelihood of success;

- [16] An appeal by itself does not operate as a stay of proceedings under a decree or order appealed from nor should execution of a decree be stayed by reason only of an appeal having been preferred from the decree (see Order 43 rule 4 of *The Civil Procedure Rules* and Rule 6 (2) of *The Judicature (Court of Appeal Rules) Directions*). In other words, the ordinary rule is that an execution of the decree need not be stayed pending an appeal unless the appellant shows good cause. A presumption lies in favour of the integrity of the proceedings of any court of general jurisdiction. The administration of justice rests largely upon the presumption of the law that a court, acting within its jurisdiction, has acted impartially and honestly, and with integrity such that a final judgment of a court of general and competent jurisdiction is always presumed to be right. - [17] The court must be satisfied that the prospects of the appeal succeeding are not remote but that there is a realistic chance of succeeding. Court at this stage is not required to analyse whether the grounds of the proposed appeal will succeed, but merely whether there is real prospect of success. More is required to be

established than that there is a mere possibility of success. That the case is arguable on appeal or that the case cannot be categorised as hopeless. There should be a sound, rational basis, founded on the facts and the law, and a measure of certainty justifying the conclusion that the appellate court will differ from the court whose judgment has been appealed against; that the appellate court could reasonably arrive at a conclusion different from that of the trial court.

- [18] The appeal will be considered frivolous if *prima facie* the grounds intended to be raised are without any reasonable basis in law or equity and cannot be supported by a good faith argument. If there is a strong showing that the appeal has no merit, that is strong evidence that it was filed for delay or not in good faith. Additional evidence indicating a frivolous appeal is the applicant's conduct of prior litigation which may show that the appeal is merely part of a series of suits, applications and appeals over the same subject matter in which the applicant has engaged with no success or no chance of success. The prior litigation or procedural history can be used to establish the lack of merit in the present appeal or the bad faith of the applicant in filing the present appeal. - [19] The applicant has provided court, in the affidavit supporting the application, with a draft list of the grounds it intends to raise on appeal to the Court of Appeal. It also has adverted to the arguments it intends to raise in support of those grounds. Having perused the judgment, the pleadings and the proceedings leading to the judgment, I have formed the opinion that that there is a reasonable basis in law and equity to support the grounds raised and that they can be supported by good faith argument. It is therefore possible that the Court of Appeal could reasonably arrive at a conclusion different from that of the trial court. The applicant has satisfied this requirement too.

#### iv. The appeal would be rendered nugatory;

- [20] Nugatory means "of no force or effect; useless; invalid." In this context, the term "nugatory" has to be given its full meaning. It does not only mean worthless, futile or invalid, it also means trifling. Whether or not an appeal will be rendered nugatory if a stay is not granted depends on whether or not what is sought to be stayed if allowed to happen will be reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved, or it is in the public interest to grant a stay. This may include all cases where it is necessary to preserve the status quo pending appeal, in aid of and to preserve the appellate power, so that the rights involved in the appeal may not be lost or reduced by reason of an intervening execution of the judgment. A stay of execution will be granted where failure to grant it will destroy the subject matter of the proceedings or foist upon the Court of Appeal, a situation of complete helplessness or where it will render nugatory any order or orders of the Court of Appeal. - [21] It has always been recognised that the Court's power to grant a stay of execution is entirely discretionary, but that discretion should be exercised based on legal principles. This is so, because of the principle of law that a Judgment of a Court is presumed to be correct and rightly made until the contrary is proved or established. It is well settled that a court of law does not make the practice of depriving a successful litigant of the fruit of his litigation and thereby locking up the funds to which he is, prima facie, entitled pending the determination of the appeal. Courts will not therefore make the practice of depriving a successful litigant of the fruits of his success, especially in disputes of a commercial nature in which the relief granted is entirely monetary. - [22] The decision of the court in such matter only affects cash flows, not involving any physical assets that require preservation until the final disposal of the appeal. In cases involving only monetary awards, special or exceptional circumstances justifying the grant of a stay of execution have to be presented and one of the ways of doing this is to show that execution would provide a situation in which even if the appellant succeeds in his appeal, there could not be a return to the status quo. The most important factor that must weigh with any Court dealing with motion for stay of execution is the question whether the judgment creditors will be able to refund the judgment debt if the appeal succeeds (see *Baker v. Lavery (1885) 14 QB D 769*; *Brandford v. Young Re Falconer and Trusts (1884) 28 CH. D. 18* and *Wilson v. Church (No.21) (1870) 12 Ch. D. 454*).

- [23] If the judgment is of a nature to be actively enforced by execution and its execution does not delay or impair the character of the appeal, a stay will ordinarily not be granted. Satisfaction of a money decree does not ordinarily pose the danger of rendering a pending appeal nugatory, where the respondent is not impecunious, as the remedy of restitution is available to the applicant in the event the appeal is allowed. The presumption then is that payment made to the respondent in execution of the decree will be reversible in the event of the applicant succeeding on appeal. If it is not reversible, it has not been shown that damages will not reasonably compensate the applicant, or that it is in the public interest to grant a stay. Normally there should not be *a stay* except where the decretal amount is deposited or security is given for the said amount. An exceptional case has to be made for *stay* of execution of a *money decree*. The affidavit evidence must show that there is real risk that the decretal sum ordered by the Court will not be refunded if the appeal succeeds. - [24] It is the applicant's case that the respondent describes itself as the Manager and letting agent of M/s Meera Investments Limited. Its capacity to sue in its own right will be challenged on appeal since the applicant intends to include that in the grounds of appeal. In case that ground succeeds, recourse to the respondent will be challenging as it appears to rely more on its principal's financial muscle that its own resources, as the guarantee for its capacity to refund. Counsel for the respondent disagreed and countered that argument with reliance on section 115 of *The Evidence Act* and the decision in *J. K. Chatrath and another v. Shah Cedar*

*Mart [1967] 1 EA 93* where it was held that once parties enter into a tenancy agreement, the relationship of landlord and tenant is created and the tenant is estopped from denying the tenancy.

- [25] This Court is aware of the principle that an agent ought to take proceedings in the name of the owner of the property (see *Halsbury's Laws of England*, 4th Edition Vol. 1 p 447; M*/S Ayigihugu & Co. Advocates v. Munyankindi (1988-1990) HCB 16*). The agent can only bring proceedings if he or she is authorised by the terms of the agency to do so, and then only in the name of the principal. The question of whether as agent the respondent assumed to act for a named, or for an unnamed principal and of the right of one who has contracted in the character of an agent to throw off this character and show himself to be the real principal in the transaction, is one that will be determined by the Court of Appeal. It is also for that Court to determine whether section 115 of *The Evidence Act* was intended to or has the effect of vesting a cause of action in an agent acting on behalf of the principal. - [26] Mindful of the fact that this Court ought not to, at this stage, give my view on the merits of the case, as the matter is on appeal, when all the issues in controversy will be decided, for the purposes of this application, the relevance of that controversy is that is raises the real possibility that if those issues were to be determined against the respondent, recovery may be limited to recourse against the respondent's assets and it may not be possible to extend liability to the principal, yet the respondent's assertions insinuate that it has the financial backing of its principal. - [27] The applicant has thus demonstrated a reasonable basis to support the belief that although execution will not affect the merits of the grounds and arguments proposed to be raised on appeal, there is a real prospect that it will not be possible for the Court of Appeal by its orders to restore the status quo in the event that the applicant succeeds in its appeal. Although the Court of Appeal would ordinarily order the restoration of the *status quo ante* by directing the respondent to refund

money recovered in execution of the decree, the difficulty facing the applicant is that the extent of the powers granted to the respondent by its principal and the extent to which the principal is bound to bear the liabilities of the respondent, is unknown and may not be revealed on appeal.

- [28] Counsel for the applicant has also presented the argument that in light of the substantial or colossal amount awarded by the decree sought to be executed, recovery of that sum will affect its operations and presumably its ability to sustain the appeal. Where there is a real prospect that execution of the decree will to a crippling extent deprive the appellant of the resources, financial or otherwise, necessary to sustain the appeal, the Court may be persuaded to grant a stay of execution pending the appeal. A judgment debtor though cannot obtain a stay of execution by arguing only that he or she would be ruined financially (see *Linotype-Hell Finance Ltd. v. Baker [1993] 1 WLR 321; [1992] 4 All ER 887*). - [29] Courts are more likely to grant a stay of execution when there is a strong possibility that the execution of the decree will render the appellant unable to afford the costs of the appeal, or otherwise cripple their ability to pursue their case, thereby paralysing the exercise of their right of appeal. To arrive at this conclusion, the applicant ought to furnish cogent evidence of its current means and demonstrate how execution is likely to cause a debilitating effect in light of its capacity to purse the appeal. - [30] The Court has not lost sight of the fact that the applicant is a commercial Bank operating within Jurisdiction. It is common knowledge that the minimum paid-up capital requirement for commercial banks in Uganda was increased to shs. 150 billion by 30th June, 2024, following an increase from the previous shs. 25 billion, as announced by the Bank of Uganda in November 2022. The implication is that the mount of shs. 8,069,802,038/= sought to be recovered by execution constitutes approximately 6% of the applicant's minimum paid-up capital. By virtue of the fact that it is still in operation, it can be deduced that the applicant was able to meet the

Central Bank six-fold increment of the minimum paid-up capital requirement within the two-year deadline from shs 25 billion to shs. 120 billion by 31st December, 2022 and to shs. 150 billion by 30th June, 2024. Although it is a significant amount and there is no doubt it has the potential of affecting the normal operations of the applicant if drawn at a go, I am not satisfied that it's recovery will cripple the applicant's ability to pursue its appeal, thereby paralysing the exercise of its right of appeal.

[31] All in all, on account of the nature of issues to be canvased on appeal vis-a-vis the legal status of the respondent and its doubtful financial means, the applicant has established a reasonable basis for sustain the belief that there is a real prospect that the appeal may be rendered nugatory.

## v. There is serious or imminent threat of execution of the decree or order and if the application is not granted.

- [32] 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. There must be a direct and immediate danger of execution of the decree. There should be unequivocal evidence showing that unconditional steps as to convey a gravity of purpose and imminent prospect of execution of the decree, have been taken by the respondent. Steps that demonstrate a serious expression of an intent include; extracting the decree, presenting and having a bill of costs taxed, applying for issuance of a warrant of execution and issuing a notice to show cause why execution should not issue. The applicant has not adduced evidence of this in the application. - [33] The respondent admits having filed an application on 6th February, 2025 seeking execution of the decree by Garnishee and attachment of the monies on the applicant's known accounts in Bank of Uganda to recover the decretal total sum of

shs. 8,069,802,038/= The applicant has accordingly proved that a step has been taken towards execution of the decree and execution is imminent unless stayed by this Court.

- vi. Substantial loss may result to the applicant unless the stay of execution is granted. - [34] Substantial loss does not represent any particular size or amount but refers to any loss, great or small that is of real worth or value as distinguished from a loss that is merely nominal (see *Tropical Commodities Supplies Ltd and Others v. International Credit Bank Ltd (in Liquidation) [2004] 2 EA 331*). "Substantial" though cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when he or she loses his or her case and is deprived of his or her property in consequence. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal. The loss ought to be of a nature which cannot be undone once inflicted. - [35] The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his or her appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his or her judgment (see *Alice Wambui Nganga v. John Ngure Kahoro and another, ELC Case No. 482 of 2017 (at Thika); [2021] eKLR*). For that reason, execution of a money decree is ordinarily not stayed since satisfaction of a money decree does not amount to substantial loss or irreparable injury to the applicant, where the respondent is not impecunious, as the remedy of restitution is available to the applicant in the event the appeal is allowed. The applicant has on basis of the material submitted in this application created a reasonable basis to believe execution of the decree may have an irreversible effect.

- vii. The applicant has given security for due performance of the decree or order. - [36] In granting an order of stay of execution pending an appeal, the court has to balance the need to uphold the respondent's right to be protected from the risk that the appellant may not be able to satisfy the decree, with the appellant's right to access the courts. It is the reason that courts have been reluctant to order security for due performance of the decree. This requirement has been interpreted as not operating as an absolute clog on the discretion of the Court to direct the deposit of some amount as a condition for grant of stay of execution of the decree in appropriate cases, more particularly when such direction is coupled with the liberty to the decree holder to withdraw a portion thereof in part satisfaction of the decree without prejudice and subject to the result of the appeal. - [37] Courts have instead been keen to order security for Costs (see *Tropical Commodities Supplies Ltd and others v. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331* and *DFCU Bank Ltd v. Dr. Ann Persis Nakate Lussejere, C. A Civil Appeal No. 29 of 2003*), because the requirement and insistence on a practice that mandates security for the entire decretal amount is likely to stifle appeals. The purpose of an order for security for costs on an appeal is to ensure that a respondent is protected for costs incurred for responding to the appeal and defending the proceeding, which therefore implies such an order does not adequately meet entirely the purpose of security for due performance of the decree. In the case of a money decree, furnishing security for due performance of the decree denotes providing depositing the disputed amount. - [38] Where the applicant is ready to deposit security for due performance, it would be ideal to the Court to order the decretal sum to be deposited into an interest yielding account, secured by a bank guarantee in favour of the Registrar of this Court for delivery to whoever succeeds on appeal. This is usually the case where there is apprehension as to the ability of the applicant to secure a refund of the judgment debt from the respondent after the appeal. The practice of the court is to exercise

its discretion in granting a conditional stay where it is in doubt on most of the key considerations. The applicant has undertaken to furnish such security, but the court has a duty in exercise its discretion when considering the grant stay of execution of a money decree, to balance the equities between the parties. There being a stronger case for the grant of the stay than there is doubt about the merits of the appeal, it would not be necessary to make conditional order.

## viii. Refusal to grant the stay would inflict more hardship than it would avoid.

- [39] The Court has the duty to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his or her judgement. In doing so, the Court endeavours to ascertain where the greatest risk of irremediable harm might lie and to make an order which is less likely to produce injustice. No doubt it would be wrong to order a stay of proceedings pending appeal where the appeal is frivolous or where such order would inflict greater hardship than it would avoid (see *Erinford Propertied Ltd. v. Cheshire County Council [1974] 412 All ER 448*). It is also a fundamental factor to bear in mind that, a successful party is *prima facie* entitled to the fruits of his or her judgement. - [40] The applicant has offered evidence of objective facts from which it can be deduced that in the circumstances of this case, execution will cause significant difficulty, expense or disruption, beyond that to which every judgment debtor is necessarily subjected when he or she loses his or her case and is deprived of his or her property in consequence. I am therefore satisfied that execution would cause significant difficulty, expense and disruption, beyond that to which every judgment debtor is necessarily subjected when he or she loses his or her case and is deprived of his or her property in consequence. If an order of stay is not granted, execution is likely to inflict greater hardship than it would avoid.

## Final Orders;

[41] In conclusion, the applicant has satisfied the majority of the essential requirements for the grant of an order of stay of execution pending appeal. Consequently, the application is allowed. Execution of the decree in H. C. Civil Suit No. 0109 of 2018 is hereby stayed until the final determination of the appeal arising therefrom to the Court of Appeal. The costs of this application shall abide the outcome of that appeal.

Delivered electronically this 1st day of April, 2025 …Stephen Mubiru……..

Stephen Mubiru Judge, 1st April, 2025

## Appearances;

For the applicant : M/s Katende, Ssempebwa and Company Advocates, Solicitors and Legal Consultants.

For the respondent : M/s Magna Advocates.