Gasasira v Bataringaya (Civil Application 68 of 2025) [2025] UGCA 94 (1 January 2025)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION. NO. 0068 OF 2025 (ARTSTNG FOM CIVIL APPEAL NO. 152 OF 2024) (ALL ARISING FROM HCCS NO.05t OF 2020)

## GASASIRA AUGUSTINE ::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

#### -VERSUS-

BATARINGAYA DAVID

### RESPONDENT

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

### Introduction

- []The applicant brought this application under Rules 2(l) & (2),6 (2) (b),42(2), a3(l) and 44 (1) ofthe Judicature (Court ofAppeal) Rules SI l3-10, for orders that; - a) An order doth issue against the Respondent, his agents and servants and persons claiming under him; staying the execution and implementation of the Judgment Decree and all orders of the High Court in Civil suit No: 051 of 2020 Bataringaya David v. Gasasira Augustine & Anor, and further restraining the Respondent and his agents from evicting or otherwise dispossessing the Applicant and his co-owner or taking possession of the suit property comprised in Singo Block 491 Plot I I measuring

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approximately 50 acres currently registered in the names of the Applicant and Mr. Bisamaaza George (co-owner) until the frnal disposal of the Applicants pending Appeal in this Honourable Court vide; Civil Appeal No. 152 of2024.

b) Costs ofthe application be provided for

## The bockground

12) The brief background to the application, as can be discemed from the pleadings is that; the applicant was the unsuccessful party in H. C. C. S No. 051 of 2020 Bataringaya David v. Gasasira Augustine & Anor. The High Court determined the matter in favour of the respondent and found that that the respondent owns 25 acres of land comprised in Singo Block 491 Plot 11. The court made orders that; the applicant should, within 30 days from the date of the judgement hand over signed transfer forms, photographs and all documents necessary for the mutation and registration of the 25 acres into the name of respondent, that the land decreed shall encompass the kibanja that the respondent had acquired from Kanyemera and the 15 acres he bought fiom the Applicant herein prior to the 15n of July 2019 agreement. The court further ordered the applicant pays a sum of shs. 150,000,000/: in general damages, as well as costs of the suit.

t3l Being dissatisfied with the judgment and the orders of the court, the applicant then filed an appeal against the judgement and orders of the High Court vide Civil Appeal No. 152 of 2024. The appeal is under conferencing before this Court. The applicant sought an order of stay of execution in the high court but

contends that the High Court imposed onerous conditions, thereby incapacitating him from the benefit of a stay. His attempts to have the conditions vacated by the High Court were in vain. He therefore invoked the jurisdiction and discretion of this Court under Rule 42 (l) of the Rules of this Court by applying to this court, hence the instant application.

#### The Grounds and evidence in supporl of the application.

t4] The grounds in support of the application were set out in the notice of motion and elucidated in the affidavit in support. The gist of the grounds is that pending the appeal, which seeks to set aside the judgement and all orders of the High Court, the applicant is exposed to an imminent threat of execution, now that the attempts to obtain a stay of execution in the High Court were unsuccessful.

t5] The applicant averred that the decree sought to be executed is the subject of the appeal, and that if an order for stay of execution isn't granted, and the land is vested in the respondent, and alienated by virtue of the subject decree, the appeal and reliefs sought therein will have been rendered nugatory, if the Respondent's appeal succeeds, as the land will have been rendered irrecoverable. The decretal sum of shs.150,000,000/= will equally be onerous to recover liom the respondent.

t6] The applicant further avers that the appeal has a high likelihood of success. In evidence, the Applicant alluded to the grounds of appeal in the memorandum of appeal, and also contended that since the appeal is already being conferenced and is pending hearing, the respondent, who has hitherto not been in possession of the land, and which land is still registered in the names of the applicant and his coregistered proprietor, will not suffer any grave any inconvenience. The evidence in support of the application is contained in the affidavit in suppon.

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### The grounds in opposition to the application

l7l The application was opposed by the respondent and the grounds are set out in the affidavit in reply. The gist of the opposition is that the application is not competently before this court, that the application is res judict4 a similar application having been filed and determined in the High Court that the applicant is in contempt of the decree of the high court and orders thereof, having failed to comply therewith and, that the applicant does not meet the threshold for the grant of an order of stay of execution.

t8] The Applicant filed an affidavit in rejoinder and therein denied allegations of being in contempt, averred that filing the instant application is a remedy available under the law and does not amount to contempt. The applicant re-iterated that the application meets the threshold and prayed that the court be pleaded to grant the orders sought.

### Representation

t9] At the hearing of the application, the applicant was represented by Counsel Joseph Kyazze, assisted by Counsel Nahwera Patra and Counsel Kushaba Kennedy and the respondent was represented by Counsel Kato Tumusiime. Counsel for the Respondent, parties sought leave to adopt their written submissions and authorities cited therein, which leave was granted by the court.

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## Submissions for the Applicant

[10] Leamed counsel for the applicant submitted that the application is competently brought before this court under Rule 42 of the Rules of this Court, on account that attempts by the applicant to obtain a stay of execution from the High court failed. Counsel contended that where the High Court misconstrued the principles regarding security for due performance of the decree and made orders, whose effect is to deny the applicant an order of stay of execution and thus expose him to an imminent danger of execution, which ultimately has the effect of rendering the reliefs sought in the appeal nugatory, this court, before which the appeal is pending, has a duty, in the interest ofjustice, to ensure that it grants an order of stay of execution to forestall the threat ofexecution and preserve the status quo in the meantime pending determination of the appeal.

[1 1] Counsel contends in such circumstances, either where the High Court out rightly declines to grant a stay or grants one, with conditions that have the effect of denying the applicant the benefit of an order of stay of execution or where the High Court does not accord a remedy in due time, thereby exposing the appellant to imminent execution, it is in the interest of justice and protection of the applicant's unrestricted right of appeal that this court may exercise its inherent powers under Rule 2 (2) and 42 of the Rules of this court to determine the instant application. Counsel cited the decision in lhe Regislered Trustees of the Hindu Union V Kagoro Epimac & Ors CACA No. 304 of 20l7G. M Combined (U) Ltd versus A,K Detergents (U) Ltd . SCCA No. 34 of 1995

U2) It was submitted that under Rules 2(2), 6(2) @, 42(2) and 43 of rhe Rules of this Court, the court is conferred with discretion and jurisdiction to grant an order of stay of execution for purposes of preserving status quo and protecting the

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unrestricted right of appeal. Counsel cited the decision in Kelspo Ssekandi Luswanga versus Administrator General Civil Applicotion No.; 457/2022. Further, that the Court is empowered to grant an order of stay of execution to prevent the ends ofjustice from being defeated and to restrain the Respondent from doing any act as may be specified by Coun. This includes preserving the status quo of the suit property. Counsel relied on the decision in Parambot Breweries Limited versus Standard Chartered Bank Limited.

[13] On the question of the jurisdiction of this court presided over by a single justice, counsel submitted that this being an interlocutory application arising out of an appeal pending before this Court, the jurisdiction and discretionary power to grant an order for stay of execution of a decree pending determination ofan appeal is vested in the Court presided over by a single Justice of this Court. He invited court to apply the decision in Ugonda Revenue Authorily Versus NSSF, Civil Application No. 43/2023 contending that the application is properly before the court

[4] On the threshold for the grant of an order of stay of execution, counsel contended that the conditions precedent for the grant of an order of stay of execution were set out in the decisions in Hon Theodore Ssekikubo & Ors V Attorney General & Anor Constitutional Application No.06 of 2013 and Haruna Sentongo V I & M Bank Ltd Civil Application No. I 13 of 2023, vide;

- i. There is a Notice of Appeal dul\_r" filed in accordance with Rule <sup>76</sup> - ii. The Applicant must establish his appeal has a likelihood of success; or <sup>a</sup> prima facie case of his right to appeal.

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- t Proof that the applicant will suffer irueparable loss if the stay is not granted or that the appeal will be rendered nugatory if a stay is not granted. - tv. The Applicant must also establish that the application was instituted without delay.

[15] Counsel noted that, for Court to grant an order of stay of stay of execution, the applicant must prove that a notice of appeal was filed in accordance with Rule 76 of the Court of Appeal Rules. Relying on the decision in Gashumba Muniraguha Vs. Sam Nkundiye, Civil Application No. 24/2015, counsel contended that in the instant application, there is no doubt that a notice of appeal was duly filed and served. Further, that upon obtaining the certified record of proceedings, the applicant flled the appeal, which is pending hearing and determination before this court. The status of the appeal is that conferencing schedules were issued by this court and the applicant has since filed and served conferencing notes upon the respondent. Therefore, according to counsel, the first requirement of having filed a valid notice of appeal has been satisfied.

[6] It has also been submitted for the applicant that the appeal pending before this court is bonafide, meritorious, with a high likelihood of success. Counsel referred court to the grounds of law and fact are set out in the memorandum of appeal attached to the affidavit in support of this application and to the fact that the nature of grounds and their legal basis, and the reasons why they contend that the appeal raises pertinent points of law are set out in the affidavit in support and that the grounds prima facie demonstrate that the intended appeal is not a sham but raises serious questions of law or fact worth reconsideration by this court.

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U7) Counsel contended that at this stage, all that the court should consider is the question of whether there is an arguable appeal and such an appeal is not one which must necessarily succeed, but one rvhich ought to be argued fully before the court; one which is not frivolous. In support of this argument, counsel cited Stanely Kang'ethe Kinyanjui V Ketter & ors [2013J e KLRcited with approval in Haruna Sentongo Vs I & M Bank Ltd supra, and China Henan International Cooperation Group Co. Ltd vs. Justus Kyabahwa Civil Application No.100 of 202 r.

[1 8] Regarding the issue of whether the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted, counsel submitted that att that is required of the applicant is to establish that there is an imminent threat of execution of the decree which execution, would render the pending appeal, nugatory. Counsel cited the decision in Patrick Kaumba lliltshire V Ismail Dabule, Civil Application No.3 of 2019 and contended that in the instant case, the trial court declared that the Plaintiff (Respondent herein) owns 25 acres of land comprised in Singo Block 491 Plot l l and ordered that the applicant herein, within 30 days from the date of the judgement should hand over signed transfer forms, photographs and all documents necessary for the mutation and registration of the 25 acres into the name of the Plaintiff. The court further ordered the Applicant to vacate the suit land and that the Respondent is entitled to vacant possession of the land. Counsel noted that it is not in dispute that the applicant and his Co-registered proprietor have at all material times to date been in possession of the land.

tl9] It was submitted by applicant's counsel that the order, requiring the applicant to render vacant possession of the suit land to the respondent exposes the

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applicants to an imminent threat of eviction or possible contempt proceedings and that the respondent, had notwithstanding knowledge of the pending appeal commenced steps towards execution and now that the High Court had disabled the applicant from obtaining benefit of an order of stay, the threat was more imminent if the conditions imposed by the High Court aren't met by the Applicant. Counsel relied on Kisembo Emmanuel & Ors v Tibezinda Moses (SC), Civil Application No, 5 of 2023 Counsel contended that the orders sought to be executed are the very orders sought to be set aside on appeal and the subject matter is tand/physical property capable of being alienated and rendered irrecoverable if an order of stay is not granted.

[20] On the issue of where the balance of convenience lies, it was contended by the applicant that the suit properry is still registered in the applicant's and the of the co-owner names who are both still in possession of the land. That the suit property has not been showed to be one capable of depreciation in value over time. It is valuable property to the extent that by the time the appeal is determined, its value will not have decreased but appreciated. The Respondent will not be inconvenienced in the unlikely event that he succeeds in the appeal. The Respondent's right over property will only have been merely temporarily postponed but not lost. The Respondent if successful on appeal, will recover whatsoever sums this court may find appropriate. That on the other hand, if the Respondent is not restrained from evicting the Applicant and taking possession of the 25 acres, the applicant will be sued in trespass if the suit property is alienated to 3'd parties, and therefore rendered irrecoverable, and as such the applicant wilt be adversely inconvenienced and will suffer substantial loss. Counsel cited Legal Brain Trust (U) Ltd vercus Allorney General, Miscellaneous Application No. 638 of 2014


[21] Lastly, appticants counsel addressed the issue of whether the application was instituted without delay contending that the application was brought without undue delay, as the judgement of the Court was delivered on the 12th December 2023 and decree extracted on 8th January 2024. the notice of appeal and request for proceedings were filed on the 20th December 2023, certified typed copy availed on the 24th January 2024, appeal filed on the 22nd February 2024 and final orders in the High relating to stay 51h December 2024 but order extracted and formally availed on the 5th February 2025, where after the instant application for stay of execution pending appeal.

## Submissions for the Respondent

[22) Counsel for the respondent submitted that the applicant is in contempt of the Decree issued in HCCS No. 5l OF 2020 and HCMA No. 15 OF 2024. Thatthe applicant has not complied with the said orders and is therefore not entitled to file an application before this court. Counsel contended that the applicant's conduct constitutes contempt of court. Counsel cited the decision of Florence Dawaru V Angumale Albno & Another ,Miscellaneous Application No. 0096 of 2016 where court held that an action for contempt of Coun may be initiated against the applicant where there has been non-compliance with the decree or order of the court. That contempt ofcourt is only excusable where the preferred contemnor shows that he acted in good faith and was taking reasonable steps towards compliance with the order See.' Formular Feeds Limited and 3 others v KCB Bank Limited, Miscellaneous Application No. 1647 of 2023. That, in the instant case, the Applicant has taken no compliance steps. Counsel cited Stanbic Bonk Ltd & Jacobsen Power Plont Ltd Vs. Ugonda Revenue Authority, MA 42/2010.

<sup>10</sup> C.tE,( l23l Counsel further contended that the applicant had defied the orders issued in Civil Suit No. 5l of 2020 to surrender vacant possession and a certificate of title together with signed transfer forms, photographs and all documents necessary for the mutation and registration of the 25 acres into the name of the respondent. That the Applicant defied this order and further defied orders issued in Miscellaneous Application No. 15 of 2024; to deposit UGX 100,000,000 (One Hundred Mitlion Shillings) initially within two weeks and subsequently upon review within 30 days from the date of the ruling as security for due performance of the decree. Counsel invited court to dismiss the application.

124) Secondly, the respondent's counsel contended that the instant application is res judicata and barred by section 7 of the Civil Procedure Act, as a similar application was made by the applicant in the High Court and conclusively determined. Counsel cited the decision in Onzia Elizabeth V Shaban Fadul (as Legal Representative of Khemisa Juma), Civil Appeol No. 00019 of 2013; for the contention that res judicata is a fundamental doctrine of all courts that there must be an end of litigation. Counsel submitted on the pre-conditions for res judicata set outin Karia and another v. Attorney General and others [2005J I EA 83. Thatthe order of stay of Execution before this Honourable Court is similar to the orders & remedies sought in Miscellaneous Aoolication No. l5 of 2024: Gasastra Ausustine V Batarinsaya David and Miscellaneous ApDlication No. 15 of 2024: Gasasira Augustine V Batarinsaya David

[25] On the merits of the application counsel addressed court on the question of irreparable injury and submitted that substantial loss does not represent any particular size or amount but refers to any [oss, great or small that is of real worth or value as distinguished from a loss that is merely nominal. Counsel relied on

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Tropical Commodities Supplies Ltd and Others v. International Credit Bank Ltd (in Liquidotion) [200aJ 2 EA 331 and Formulafeeds Limited & 3 others V KCB Bank Limited, High Court (Commercial Division) Misc. App. No. 1647 Of 2022 for the principle that, apart from the averments that the applicants stand to suffer irreparable loss if execution ensues, the applicants had not 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. Counsel contended that the respondent has suffered economic loss and has been denied proprietary rights and interests for the last six years and the grant of this Application is likely to make him suffer more than the Applicant due to the prolonged litigation process initiated by the Applicant with a view of frustrating the Respondent from enjoying fruits of the Judgement.

126) Regarding the existence of a prima facie case with a likelihood of success, counsel cited the decision in Formula Feeds Limited & 3 Others V KCB Bank Limited (supra), and submitted that the court must be satisfied that the prospects of the appeal succeeding are not remote but that there is a realistic chance of succeeding. That more is required to be established than that there is a mere possibility ofsuccess and 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 justifting 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.

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l27l Counsel contended that the applicant's memorandum ofAppeal is anchored on contradictions but does not dispute the fact that he sold the 25 acres of land comprised in Plot 11, Block 491 to the Respondent vide; Purchase Agreement dated 15 July, 2019. That this makes it evident and apparent that the applicant's failure to dispute the transaction is merely using his right of appeal to prolong the litigation to frustrate the respondent from enjoying the proprietary rights and fruits ofthe judgement. That, it is therefore wrong, like in the instant case, to order a stay of execution pending appeal where the appeal is frivolous or where such order would inflict greater hardship than it would avoid. Counsel cited Erinford Propertied Ltd. V. Cheshire County Council 11974) 412 All ER 448).

[28] On the remedies, counsel contended that this Court has the power and duty to grant effective remedies, to ensure its orders are obeyed and not in vain. That in the instant application, the respondent is aggrieved by the acts, omissions of the applicant calculated to deny him proprietary rights in the aftermath ofjust findings and conclusion of this High Court of Uganda at Mubende, and the applicant's actions of prolonging the litigation process whose outcomes he is not ready to comply. Counsel prayed that the court dismisses the applicant's application for stay ofexecution pending appeal.

## Applicant's submissions in rejoinder

[29) In rejoinder, applicant's counsel submitted that the instant application before the Court of Appeal is a fresh application for stay of execution. The applicant is invoking the powers of the Court under Rzle 42 of the Rrzles of this Court. This Court can grant an order of stay where the High Court has declined to do so and that declining to do

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includes instances where the High Court imposes strenuous conditions that are incapable ofbeing satisfied by the Applicant and their effect is to render the applicant be exposed to execution and comprise his right ofappeal. That this court has done so in Haruna Ssentongo Versus Orient Bank Limited, Civil Application No, 113 of 2023. In determining the application, this Court is not bound by the considerations or orders of the High Cour"t. It is guided by what the dictates ofjustice demand.

[30] Further, that the applicant has already filed an Appeal and submissions in the same have since been filed and served unto the respondent as required by schedules issued by this honourable court on the l4'h November 2024. That the Applicant has taken up necessary steps to prosecute the appeal and that the instant application for stay is pending the hearing and determination of Civil Appeal No. 152 of 2024. Counsel submitted that the application was filed after the High Court declined to grant an unconditional stay ofexecution and that the order requiring the Appticant to deposit 100,000,000/ as security for due performance of the decree was harsh and in essence, curtailed the applicant's right ofappeal.

[3 <sup>I</sup>] Counsel submitted that the applicant opted to apply afresh to this court in the context of Rule 42 (l) & (2) ofthe Rzles of this Court. The rule dictates that preferably, the applicant starts by applying to the High Court. But where the High Court declines to grant an unconditional stay, the applicant may seek the intervention of this Court. See Haruna Ssentongo versus Orient Bank (U) Limited (supra), in which the High Court had imposed what the applicant contended were harsh conditions and the Court of Appeal granted an order of an injunction in a fresh application filed by the Applicant. Counsel invited court to be alive to the fact that the subject matter of staying execution before this honourable court is the protection and balancing act of the parties subject of an Appeal and this honourable court is vested with powers to reconsider the instant application and find the appropriate mode of dispensing justice

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pending the determination of the said appeal based on the overriding presumption that security for due performance is not a condition precedent for the grant of an order of stay of execution but a ground that the courts of law have discretion on which we submit it be exercised judiciously. See; Legal Brains Trust (U) Ltd vercus Attorney General Miscellaneous Application No. 638 of 2014 at Page 14.

l32l Counsel highlighted what they regarded as special circumstances that would warrant consideration of the application and grant thereof without the conditions for depositing security for due performance as a mandatory requirement. That the overriding factor is the interest of justice and the need to preserve the status quo pending determination of the appeal. Counsel relied on Margret Kato & Joel Kato vs. Nulu Nalwoga, Supreme Court Civil Misc. Applicalion No. Il of 2011. Counsel contended that the applicant is not in contempt neither is he abusing court process by seeking appropriate remedies from this court. The Court of Appeal under Rule 6 (2) (b) and Rule 2 (2) in granting an order of stay of execution is not bound by the considerations of the High Court. Counsel re-iterated the prayers in the application.

## Consi deralio n and dec i sio n

[33] I have carefully considered the rival submissions in support and opposition of the application as well as the numerous authorities cited by counsel in support thereof. I have also perused the pleadings, affidavits and annexures thereto. However, before delving into the merits olthe application, I note that in their submissions, leamed counsel for the respondent raised what appeared to be preliminary points challenging the competence of the application. I am constrained to dispose of the said objections first.


[34] In dealing with the said objections, I must emphasize from the onset that applications of this nature are required to be considered and determined on the basis of their peculiar facts.

t35] On whether this application is properly before this court, the discretionary power of the court to grant applications for stay of execution is derived from Rules 2(2) and 6(2) (b) of the Rules of this Court. See,',' Kelspo Ssekandi Luswanga versus Administrator General, Civil Application No. 457/2022 | am not therefore persuaded by the contention by leamed counsel for the respondent that the applicable law to the grant of the order for stay of execution in this Court is Order 22 Rules 23, 24, 25 and 26 of the Civil Procedure Rules SI-7 I and the Civil Procedure Act, neither do I agree with the submission that the said provisions are of universal application, as contended by counsel. In my view, the application was correctly brought vnder Rules 2(2) and 6(2) (b) and 42 of the Rules of this Court, which confer jurisdiction and discretion to this court to grant an order of stay of execution.

[36] Counsel for the Plaintiff also challenged the jurisdiction of this court presided over by a single justice to hear and determine an application for stay of execution and both counsel addressed this issue in their respective submissions. In my view, it has now been settled that, an application for stay of execution of a decree of the High Court pending an appeal to the Court of Appeal can be heard and determined by this Court presided over by a single Justice of this Court. ,See Haruna Sentongo V I & M Bank Ltd, Civil Applicolion No. l13 of 2023 and Jomayi Property Consultants Ltd v Maviiri (Civil Reference No. 174 of 2015) 120201 UGCA 2052. I therefore find that the application was competently heard before me.

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l37l Learned counsel for the respondent also raised issues of alleged contempt of court orders by the applicant and extensively submitted on the same. I am aware of decisions of this court that where the applicant has been found by the trial court to be in contempt and an order has been made as such, this court would be very reluctant to afford such an applicant a remedy, unless they purge themselves of the contempt. In the recent decision of this court in Alex Opua Emongas versus Margoret Zawedde Kiryowa, Civil Application No. 0694/2024 , the applicant who sought an order of stay of execution had been found to be in contempt of the earlier orders of the High Court. There was evidence on record that an application for contempt or court orders had been filed, heard interparty and determined against him. There was an order of contempt issued against him.

[38] In the instant case, the respondent's contention is that there are orders of the High Court that the applicant had not yet complied with. The respondent did not adduce evidence of any order issued by the High Court to the effect that the applicant was in contempt of any of the orders of the High Court. It is true that the applicant has not complied with the decree of the High Coun, for the very reason that he is challenging the judgement and all orders of the High Court in his appeal to this court. It is also for that reason that the applicant sought an order of stay of execution in the High Court. I do believe that it is also for the same reasons that the applicant, having failed to obtain the unconditional order of stay of execution is seeking the same from this court. Attempts by an unsuccessful parry in the trial court to forestall execution against them, pending determination of their appeal cannot in my view amount to contempt, neither do they amount to abuse of court process. An application for contempt of the decree of court would certainly arise if the Applicant didn't prefer an appeal and at the same time, adamantly refused to comply with the decree, which is not the case, in the matter before me

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[39] Another objection raised by counsel for the respondent is that, this application was wrongly brought under Rule 42 of the Rzles of this Court and is in any case barred by the doctrine of res judicata. Counsel's contention is that a similar application had been filed in the High Court, which granted an order of stay on condition that the applicant deposits shs. 100,000,000/- initially within two weeks and that attempts by the applicant to have the conditional order reviewed and set aside or varied were declined by the High Court, which ordered the applicant to deposit the shs. 100,000,000/: within 30 days. Counsel contended that the instant application is therefore res judicata.

[40] In rejoinder, applicant's counsel submitted the High Court granted the application on the one hand and denied it on the other by imposing an onerous and unprecedented condition of a cash deposit of 100,000,000/=, a sum double the purchase price for the suit [and. Counsel submitted that the order of stay of execution was not therefore available to the applicant, as he could not satisff the conditions attached to it and yet, the High Court declined to review and set it aside or otherwise vary it. Counsel contended that on the peculiar circumstances of this case, this court, before which the applicant has appealed should not abdicate from its duty to protect the right of an unsuccessful litigant on appeal, so as to ensure that the appeal and reliefs sought therein are not rendered nugatory. Hon. Theodore Ssekikubo & Ors V Attorney General & Anor Constitutional Application No.06 of 2013 Haruna Sentongo V I & M Bank Ltd Civil Application No. 113 of 2023.

[41 ] Upon careful perusal of the rulings and orders of the High Court and the affidavit in support of this application, my view is that where the conditions upon which the order for stay was granted appear to be harsh and unconscionable and in

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essence, amount to enforcement of the decree, notwithstanding the fact that the applicant was appealing against the decree, that may constitute special circumstances for this Court to intervene. In Joel Kato v Nulu Nalwoga (SC), Civil Miscellaneous Applicalion 1l of 2011 it was held that where a condition to deposit large sums of money would have the undesirable effect of blocking the applicants, as unsuccessful litigants, from pursuing their right of appeal before the appellate court, merely because of their circumstances, and, dismissing their application for stay of execution would prejudice their right to appeal, the court would invoke its inherent powers in the interest ofjustice to grant an order of stay of execution. The court further noted that the applicants, being individual litigants and not a corporate entity, would most certainly find it onerous ifthey were to be required to deposit the Shs. 50,000,000/: proposed by counsel for the respondent, as this is, by no means, a small sum of money. The court concluded that the interests of justice would better be served if the status quo was maintained, as opposed to the court ordering the applicants to deposit a substantial amount of money as security for due pertbrmance of the decree.

l42l Guided by the above decision, I am of the humble view that the peculiar circumstances of the instant application merit intervention by this court to hear the instant application. Requiring an ordinary litigant like the applicant to deposit Shs. 100,000,000/-, an amount almost double the purchase price of the suit land as pleaded by the parties, and more over within two weeks which is such a short time, would have the undesirable effect of blocking the applicant, as the unsuccessful litigant, from pursuing their right of appeal betbre the appellate court, as the denial of stay might render the reliefs sought on appeal nugatory. This, and I say so without prejudice, amounts to a special circumstance and is not meant to conclude that security for due performance of the decree is in itself intended to block the right of appeal. It doesn't mean however, that in all matters where a parry is ordered to pay security for due

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perforrnance of the decree or is granted a conditional stay of execution, such a party is at liberry to apply for stay of execution in this court. Each case must be determined on its peculiar facts.

[43) Rule 42 of the Rules of this Court, empowers this court with discretion to entertain an application for stay of execution, where the High Court has declined to grant an order of stay of execution. The rule may also be invoked where the interest of justice dictates that this court hears and determines the application, even where the applicant has not filed a prior application in the High Court, as long as there are special circumstances that warrant intervention by this Cowt. Kyambogo University versus Pro/.. Isaiah Omolo Ndiege, Civil Applicotion No. 34 I of 2013 .

l44l In the exercise of its discretion under Rule 42, this court is not bound by the decision and reasoning of the High Court. neither can that decision render the instant application res judicata. The consideration of the application is under Rule 2(2) and 6 (2) (b) of the Rules of this Court and is a matter ofexercise of discretion by this court. The court exercise its jurisdiction based on the peculiar facts and circumstances before it. ln Joel Kato v Nulu Nalwoga (Supra) the court held that Rule 6(2) (b) of the Judicature (Supreme Court) Rules, which is the applicable law on this matter, empowers this court to order a stay of execution in any civil proceeding "as the court moy consider jasl. " There is no requirement under the Rules, for an applicant to make a deposit of security for due performance of a decree, before the Court can exercise its powers under rule 6 (2) (b). The court is only required to exercise its discretion as it may consider jusr. The practice in the past of this Court to impose this condition in some cases is only a rule of practice based on case law.

<sup>20</sup> tAs6 [45] It would follow therefore, that in considering the instant application, what is the court is required to do ,o exercise its discretion as it may consider just, without being constrained by the rulings of the High Court. In my view, the ultimate aim of granting an order of stay of execution is to preserve the status quo in respect of the subject matter of the appeal, so that upon determination of the appeal, the appeal and reliefs sought therein are not rendered nugatory. The decision of the Supreme Court in Hon. Theodore Ssekikubo & Ors V Attorney General & Anor Constitutional Application No.06 of 2013 is quite instructive on the matter.

[46] This court must, in determining u hether to grant or decline the orders sought not lose sight of the paramount principle that in appropriate cases and in the interest of justice, the applicant's unrestricted right of appeal should be protected. It is now trite law that where the unsuccessful parry is exercising an unrestricted right of appeal, it's the duty of Court to make such orders for a stay of execution restraining the respondent from executing the judgement appealed tiom as will prevent the appeal, if successful, from being rendered nugatory. See; Akankwasa Damian versus Ugandu Constitntional Application No. 07 of 201I and 09 of 2011

[47] The rationale is to preserve the suit propen)' or avert execution. so that the parties can have their rights determined by the appellate court. See,' National Housing and Construction Corporation vs, Kampala District Land Board and Anor. Civil Applicofion No.6/2002. In the premises, I am not persuaded that I should dismiss the application on the objections raised by the respondent.

[48] I will now tum to the merits of the application. I note from the submissions of both counsel that they are in agreement as to the conditions precedent for the grant of an application for stay of execution. These were elucidated by the Supreme Court in

C. Mn

Hon Theodore Ssekikubo & Others Versus Attorney General & Anor Constitutionol Application No.06 of 2013 and Haruna Sentongo V I & M Bonk Ltd Civil Application No. 113 of 2023. These are;

i. There is a Notice of Appeal duly filed in accordance with Rule <sup>76</sup>

- ii. The Applicant must establish that his appeal has a likelihood of success; or <sup>a</sup>prima facie case of his right to appeal. - iii. Proof that the applicant will suffer irreparable loss if the stay is not granted or that the appeal will be rendered nugatory ifa stay is not Sranted. - iv. The Applicant must also establish that the application was instituted without delay.

[49] Regarding the first condition, I agree with counsel for the applicant that the condition has been met. The evidence on record shows that a notice of appeal was filed in the High Court and transmitted to this Court. The respondent has not contested the fact that the notice of appeal and request for proceedings were served on it. That is what is required as a basis for an application for stay of execution. See Gashumba Muniraguha Vs. Sam Nkundiye (supra). Further, it is not in dispute that the applicant has since instituted the appeal in this Court vide Court of Appeal Civil Appeal No. 152 of 2024. There is evidence that the appeal was duly served on the respondent and is already under conferencing before this Court. The applicant has therefore proved this ground to the satisfaction of court.

[50] The second condition is that the applicant must establish that his appeal has <sup>a</sup> likelihood ofsuccess; or a prima facie case of his right to appeal. It has been contended by the respondent's counsel that applicant has not demonstrated that it has a bonafide appeal with a likelihood of success. There are numerous decisions of the Supreme Court and this Court that have guided on what this court is required to consider

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regarding this condition. All that the applicant is required to demonstrate is that the appeal is not a sham but one that is arguable. It has been held that arguable appeal is not one that must necessarily succeed, but one which ought to be argued fully before the court or one which is not frivolous. See Haruna Sentongo Vs I&M Bank Ltd (supra)

[51] I do not ascribe to the view advanced by respondent's counsel that the court must consider the appeal in detail to ascertain its chances of success. I note that the respondent's counsel has invited court to interrogate the pleadings and evidence in chief in the witness statements, and in cross examination of the appellant, contending that the applicant admitted selling 25 acres of the suit land to the respondent. The contention though, appears not be about sale of 25 Acres but the exact location where the 25 acres were to be subdivided out of the total of 50 acres. That is matter for interrogation by the full bench of this court at the hearing of the appeal. In my view, in applications for stay ofexecution, court is not called upon to pre-empt consideration of matters for the full bench in determining the appeal. The court is not at this stage required to prejudge the appeal or delve into its merits thereof. I am fortified by the decision in Chino Henan International Cooperation Group Co. Ltd vs. Justus Kyabahwa,Civil Application No.l00 of 2021.

[52] Guided by the foregoing principles, I have considered the applicant's affidavit evidence especially para 14 and 15 thereof. The applicant has not only attached the memorandum of appeal setting out the grounds of appeal but has equally elucidated on the salient points to be argued on appeal, and the legal imptications thereof. I find that prima facie, the said grounds are arguable and merit consideration by the fult bench of the Court. The applicant faults the trial court on questions of law relating to construction of terms of the suit contract, the application of the prole evidence rule, the


evaluation ofthe evidence on record and what he contends are elToneous findings and conclusions, which he claims influenced the final orders of the High Court. I am satisfied that the grounds show that the appeal is not a sham but one that raises arguable questions of law and fact, worth adjudication before the full bench of this Court. I note that the determination of the said grounds has a likelihood of substantially impacting on the orders rendered by the High Court. The second condition is equally proved by the applicant.

[53] The third condition is that the applicant must establish that there is an imminent threat of execution and that he will suffer irreparable damage or that the appeal will be rendered nugatory if an order of stay of execution is not granted. See Patrick Kaumba lliltshire V Ismail Dabule \$upra), The rationale behind the grant of an order of stay of execution is to protect the applicant's unrestricted right of appeal such that when such applicant successfully pursues their appeal, the appeal and reliefs sought therein are not rendered nugatory. An order for stay of execution will have preserved the status quo pending the determination of the parties' property rights in the appeal. I find the decision in Kisembo Emmanuel & Ors V Tibendeza Moses (supra) very instructive.

[54] In the instant application, I have looked at the orders of the High Court. The court having found that that the respondent owns 25 acres of land comprised in Singo Block 49 I Plot I I ordered the applicant within 30 days from the date of the judgement to hand over signed transfer forms, photographs and all documents necessary for the mutation and registration of the 25 acres into the name of the Plaintiff and that the respondent is entitled to vacant possession of the land. The court also ordered the applicant to pay general damages in the sum of shs. 150,000,000/- and costs ofthe suit.


[55] I note that the orders ofthe High Court sought to be executed are the very orders that the applicant is challenging in the pending appeal and seeks an order setting the same aside. I further note that the fact that the appellant and his co-registered proprietor have at all material times been and are still in possession is not disputed by the respondent. I agree with the submission by applicant's counsel that, the order of the High Court requiring the applicant to render vacant possession of the suit land to the respondent and cause a sub division and surrender transfer forms for the disputed land constitutes an imminent threat of eviction and further exposes the applicant to possible contempt proceedings in case of there is no voluntary compliance if the execution of the orders of the High Court is not stayed.

[56] Further, I also note that attempts by the applicant to forestall execution at the high court were not successful. The subject matter of the appeal being land, and the decretal awards being tied to the findings of the trial court on whether or not the applicant breached the contract, the determination of the appeal shall impact on the orders of the Court. It would follow that if an order of stay ofexecution is not granted, there is a high possibility that in the vent that the appeal succeeds, the reliefs sought will be rendered nugatory. See Hon. Theodore Ssekikubo & 3 Others vs. AG & Others CA No. 06/ 2013.

[57] The fourth condition is that the applicant must also establish that the application was instituted without delay. The applicant should show that, upon delivery of the judgement, he has since taken appropriate steps to file and prosecute the appeal and he promptly filed the application for stay, the moment the threat of execution emerged. See; Gashumba Maniraguho versus Sam Nkandiye (supra). I note from the evidence on record that the judgment of the Court was delivered on the 12th December 2023, the decree extracted on 8th January 2024, the notice of appeal and request for proceedings

<sup>25</sup> qwt

were filed on the 201h December 2023. I further note that the certified typed copy ofthe proceedings was availed on the 24th January 2024 and the appeal filed in this court on the 22nd February 2024, all within the prescribed timelines. The applicant then sought an order of stay of execution in the High Court in January 2024, and thereafter sought a review on 25th June 2024 and the final ruling of the High Court was delivered on 5th December 2024 andthe order on the 5rh February 2025.

t58] The evidence on record shows that, thereafter, the applicant, having been unsuccessful in his endeavors to secure an unconditional order of stay if execution, fited the instant application. The applicant has been vigilant not only in filing and prosecuting the appeal but promptly fited the instant application. I am satisfied that the condition has been made.

t59] Counsel for the respective parties addressed court on the issue of balance of convenience. This is normally considered where the court is in doubt as to the substantive pre-conditions. The decision cited by respondent's counsel of; Kitutu Mary Goretti Kimono Versus Attorney General 8 2 others, Civil Application No. 109 of 2024 is clear on that point. On the evidence adduced before the cour! I find that since the respondent has not been in possession and the subject matter is land, whose status quo if maintained does not occasion any substantial effect on the value of the land, and since the appeat has progressed for hearing, maintaining such a status quo pending determination of the rights of the applicant and respondent in the suit land by the full bench of this court will not cause substantial inconvenience to the respondent. The balance ofconvenience tilts in favour ofthe applicant.

t60] However, I agree with the submission by the respondent's counsel that the court has a duty to balance the interest ofthe 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

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and the interest of the respondent who is seeking to enjoy the fruits of his or her judgment. I am persuaded by the decision in Alice ll/ambui Nganga v, John Ngure Kahom and another, ELC Case No. 482 of 2017. In order to balance and safeguard the interests of both parties and ally an1,' t'ears by the respondent, it is in the interests of justice that all transactions in the suir land are iiozen until cietemrination of the appeal. It is also in the rnterest ofjusrice that penci,ng determination of the appeal, the court freezes any transactions or creation of tnird party inleresls in the suit land until hearing and determination oi the appeal. i'he appiicant naving expressed willingness to deposit a cenificate ot title as securiry. rhe saure snould be deposited in lieu of a monetary amount.

[61] The net efl'ect of lhe aDove tindings is that the appiication succeeds, with the following orders;

- a) ,l.n order hereby issues a.g:rinsi tire Respondent, his agents and servants and persons claiming under him staving the execution and implementation of the fudgment, Decree and all orders of the High Court in Civil suit No:051 of 2020 Bataringa;',a Dovtd v. Gasa.sira Augitstine & Anor, and further restraining the Responcient and his agents tioin evicting or otherwise dispossessing the Applicant and his co-o\ ner or taring possession ofthe suit property comprised in Singo Bloor 49 i Plot i i nreasuring approximately 50 acres currently rcgislered in the names ot' ure Applicant and Mr. Bisamaaza George (coorvner) until the tinal disposar ot the Applicants pending Appeal in this Honourable Court vide; uirii Apneai No. 152 oi2024. - b) Ll order to sai'eguarci the interests oi borii parties in the suit land, pending ditermination oitheir proprietar-r lights in the appeal, it is further order that;

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- No transaction nor transfer or third part-v interest shall be effected in respect of the suit land Sir.lgo Block 491 Plot l1 measuring approximatell, 50 acres until detenrination olthe pending appeal. - ll. Since the applicant expressed willingness to deposit in court, a title as security for due perfornance of the decree. the Applicant shall within a period of 30 days from the clate hereof deposit with the Registrar of this Court. the certificate of title for land comprised in FRV 1027 Folio <sup>13</sup> Plot 42 Singo, Block 489 at Kitumbi. Kasanda istrict all measuring a total of approrirnatelv i61 Flectares, pendi dctermination of the appeal. - c) The costs of the application shalI abide by theoutcome of the appeal.

<sup>I</sup>so order. <sup>A</sup> Dated , signed and delivered this I da1 otag^tu:S

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Christopher Gashirabake JUSTICE OF APPEAL