Kabirisa and 3 Others v Katsigazi and 2 Others (Miscellaneous Application 274 of 2021) [2021] UGCA 221 (6 December 2021)

Full Case Text

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### MISCELLANEOUS APPLICATION NO.274 O? 2O2L

# (Arising from Miscellaneous Application No.275 of 2O27)

(All arising from Civil Suit No.72 & 34 oJ 2076 and Civil Appeal No.273

## 10 oJ 2019)

- o 1. KABIRISA RICiIARD - 2. BURYENYIMA JAMES - 3. MURINDE BO.\Z - 4. RUGUMIRE EZFLA::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS

15 VERSUS

1. JOHN KATSIGAZI

- 2. ARYATWETA ROLAND - O3. ARINEITWE GORDON (Administrators of

the estate of the late Kasheija Francis) :::::::::::::::::::::::RESPONDENTS

# )o CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA

### (SINGLE JUSTICE)

### RULING

This application is for an interim order of stay of execution of the decree and judgment in High Court Civil Suit No. O12 & O34 of 2016 pending the hearing 1l

5 and Iinal disposal of the substantive application for stay of execution hled as Miscellaneous Application No.275 of 2021. The application also seeks provision of costs.

Tl-re brief backgrou nd to thc zrpplication is that the appiic.rnts were the Defendants in Civil Suit No.12 and 34 of 2016 which were consolidated and determined by lVtoses Kazibwe Kawumi, J who nullified the distribution of land and cows by the applicants which did not form part of the estate of the Late Semu Bazirakakye. The learned trial Judge indicated that the clistribution of the 62 cows which belonged to the 2nd respondent was illegal. Dissatisfied with the said judgment, thc applicants lodged Civit Appeal No.273 of 2079. They also filed an application for interim stay of execution and a substantive application for stay of execution of the said judgment and decree vide Misccllaneous Applicatinn No.55 and 56 of 2019, which were granted in their favortr, on conclition that they deposit in Court the sum of UGX 50,000,000/= being the estimated value of the 62 cows, as security for performance of the decree within 15 clays, failurc of which the execution would proceed.

The applicants being'clissatisfied with the Court's decision filed an application for review vide Miscellaneous Application No.81 of 2O2O whcrein they offered to deposit the sum of UGX 10,O0O,0OO/= as security for performance of the decree. The application for review was dismissed and the respondents trave now obtained a rvarrant for vacant possession of land at Kyafoora and the h:rnding over of the 62 cows to the respondent. Hence this application.

- The application is supported by the affidavit of Murinde Boaz of Lubega, Ssakka $\mathsf{S}$ & Co. Advocates deponed on the 30th day of September, 2021 on behalf of other applicants. The relevant paragraphs in the affidavit are briefly that:- - 1. The applicants were the defendants in the consolidated Civil Suit Nos. 12 & *34 of 2016 in which judgment was entered against them.* - 2. Being dissatisfied with the whole of the decision of the trial Judge, the applicants filed Civil Appeal No.273 of 2019 in this Court which not yet fixed. - 3. The respondents immediately filed an application for the execution of the *decree in the High Court at Kabale and a notice to show cause was issued.* - 4. The applicants filed an application for stay of execution in High Court Kabale

vide Miscellaneous application No.55 of 2019 which was also heard and granted on condition that the applicants deposit in Court UGX 50,000,000/ = $\frac{1}{2}$ *as value for the contested cows.*

- 5. Being dissatisfied with the orders of the Court, the applicants filed an application for review of the Court order vide Miscellaneous Application No.81 of 2021 that required them to deposit UGX 50,000,000/= before the same Court - 6. The said application for review was heard and dismissed with costs and the High Court at Kabale allowed the execution to proceed. - *7. The applicants intended appeal has high chances of success.* - 8. Both the substantive application for stay of execution and the appeal are not *yet fixed for hearing although the appeal was filed way back.*

$3$ | $2$ A $\uparrow$ 0

- 5 9. The respondents haue aLreadg obtained a u.tanant for attachment of the ti2 couts and uacant possession of land at Kgofoora u-thich are the subject of the appeal. - 10. There is a senorz.s threat and emirtent danger of executiort of the decree and judgment once the said tuarrant is approued and this will render tlrc application for stag of execution and the appeal nugatorA. - 11. If this application is not granted bg this Honorable Court, the applicants shall suffer inetieuable and substantial loss as the respondertts are likelg to distribute the contested estate amongst themselues and their children. - 12. It is equitable and in the interest of justice that this application. is granted and this Court has the poLuers to stay the same.

The application was opposed by thc respondcnts who filcd an affidavit sworr^ by John Katsigazi on behalf of other respondents dated lSth October, 202 I briefly stating that;

- a. Whereas the judgment and decree in Ciuil Suit 1Vos. 12 & 34 of 2O16u;ere deliuered on the 16th day of October. 2O18 and the applicants lodged tlrc MemorandtLm of Appeal in Ciuil AppeaL No.273 of 2019 on 3rd ()ctober, 2O19, they neuer took ang steps to lrx their appeal. - b. Instead the applicants resorted to preuenting the execution of the judgment and decree in Ciuil Suit No.12 <% 34 of 2016 by instituti ng art applica.tion Jbr stay of execution uide miscellaneous appLication No.55 oJ

o,,,

- 5 2019 tultich uas heard and detennined irt their fauour on condition that they deposit irt Court the sum of UGX 5O,OOO,OO0/= being the ualue of the 62 heads of caltle at Kgafoora. - c. Dr-s.safi-sy'ed bq the Court's ruling in Miscellaneous Applictttion No.55 of 2O19, the applicants fled an application for reuiew uide Miscellaneous Application No. B1 oJ 202O wherebt theg offered to d.eposit in Court the sum of UGX 1O,OOO. O00/=. - d. Hotaeuer, during the heaing of both miscellaneous No.55 of 2O19 an,-7 Miscellaneous Application No. B1 of 2O2O, it utas proued that tht upplicants utere wantonly selling off the cortts at Kgafoora tuith the sole intention of denging the respondents fuifs of the judgment in the euent that the appeal fails. - e. It uas against this background that the respondents u)ere allouted to continue uith the exeantion of the judgment and decree in Ciuil Suit No. 12 & 34 of 2016 since the applicants had failed to giue seanritg for due performance oJ the decree in the sum of UGX 5O,O0O,0OO/ =. - J. Failure bg the applicants to deposit the sum of UGX 5O,0OO,OOO/= as securitg for due performa nce of the decree and at the sanrc time continuing to randomlg sell off the cotus was a clear indication tLnt the entire appeal uas brought in bad faith and only intertded to defeat the course of justice

- g. This ctpplicatiort is not based on meit but brought in bad faith as a frantic attempt by the opplicants to deng the respondents the fntits of the judgment. - h. This applicatiort is incompetent, .friuolotts attd o complete u)aste of Court's ualuable time and shall at tle hearing, applg for it to be struck off tttitlt co.sl.s.

At the hearing of the application, Mr. Andrew Wamina appeared for the applicant while the lcspondent was represented by Mr' Twikirize Timothy'

Both counsel filed written submissions which they adopted at the hearing.

oorr n sel for the applicants submitted that the purpose for the grant of an interirn stay of execution is that the coLlrt prcscrvcs the right of the applicant/appellalt to be heard on the merits. That in the instant application, the status quo to be preserved was that there was a pending appeal and a substantive appllcation for stay ol execution both of which are not yet hxed for hearitrg and yet the process of executing the same had started since the High court of Kabale from rvhich the appeal arises had alrcady issued a warrant for vacant possossion of land zrt Kyafoora. 15 a 20

coun sel further submitted that the applicants had fulfillecl the conditions required by the court before an interim stay ofexecution is grantecl. That having Iost Civil Suit Nos 12 & 34 of 2016, they appealed to this court vide civil Appeal No.273 ol 2Ol9 and thc appeal was pending hcaring' Secondly that tire

applicantsh:rdfiledanilpplicationforStayofexecutionofthedecret:andthe

- 5 same was yet to be l-rxed for hearing, lastly that the respondents had alreacly obtainecl a warrant of attachment for 62 cows and vacant possession of land at Kyafoora as a way of satisfying the decree. According to counsel, this means that there was a scriotts threat r>f execution of the decree rvhich u'oultl render both the substantive application for stay of execution .and the appeal nugatory' He prayed that this application be granted with the costs. 10 - Counsel for the respondents opposed the application and submitted that it was on record that the applicants had continued to sell off the 62 cows which the learned trial Judge in civil Suit No. 12 & 34 of 2016 found that they had been illegally distributed to the 2nd an<.t 3rd respondcnts. He added that the fact that o - the 62 cows are movable property, it is most likely that by the time the appeal is disposect of, the applicants will have completely sold off all the cows and this may greatly prejudice the respondents. In counsel's view, the applicants conduct of selling off the cows which were subject to court litigation was in bacl faith and intended to defeat the course of justice hence illegal. He relied on Makula. 15

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#### I'nter:nrrtlonrrl V Cardinal Nsttbuga (1982) HCB 11- Ou

counsel further submittccl that there is no rule of law that inherent powers cannot be invoked where another remedy is available and the fact that a specihc procedure is provided by the rules cannot operatc to restrict the cottrt's inherent powers. He invited court to invoke its inherent powers stipulated under Rule 6(2) (b) of thc rules of this cotrrt and prayed that in the evcnt the instant application is clecided in thc applicant's favott r, then security for due

performance of the decree be given by the applicants in the form of deposit of the $\mathsf{S}$ sum of UGX 50,000,000/= being value of the 62 cows as determined by the trial Judge in Miscellaneous Application No.55 of 2019 and upheld in Miscellaneous Application No.81 of 2020.

The jurisdiction of this Court to grant a stay of execution is set out in Rule $6(2)$ (b) and Rule 2(2) of the Rules of this Court. The said rules state thus

**Rule 6(2)** (b) provides that:

"Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or stay of execution but the Court may in any civil *proceedings, where a notice of appeal has been lodged in accordance with*

rule 76 of these Rules, order a stay of execution, an injunction, or a stay of ward : proceedings on such terms as the Court may think just"

**Rule 2(2)** provides thus:

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

$8|$

Okello JSC (As he then was) stated some of the principles to be considered in $\mathsf{S}$ granting interim orders of stay of execution in the case of **Hwan Sung Industries** Ltd V Tajdin Hussein and 2 Others, Civil Application No.19 of 2008. He stated that:

"For an application for an interim order of stay, it suffices to show that a substantive application is pending and that there is a serious threat of *execution before the hearing of the pending substantive application.*

It is not necessary to pre-empt consideration of matters necessary in deciding whether or not to grant the substantive application for stay."

Likewise, the Supreme Court in Dr. Ahmed Muhammed Kisuule V Greenland

Bank (In liquidation) Miscellaneous Application No.7 of 2010 held that: 15

> "For an application in this Court for a stay of execution to succeed, the applicant must first show subject to other facts in a given case, that he/she has lodged a notice of appeal in accordance with Rule 72 of the Rules of this Court....."

The 3rd applicant avers under paragraph 3 of his affidavit in support of the 20 application that the applicants had filed an appeal vide Civil Appeal No.273 of 2019 which is not yet fixed for hearing. The applicants did not attach a copy of the Notice of Appeal however they attached a copy of the Memorandum of Appeal marked as annexture "D". The said Memorandum of Appeal shows that it was duly served and received by the respondents' advocates. 25

5 A substantive apphc;rtion for stay of execution has also been filed and it ir' referenced as Miscellaneous Application No.275 of 2021.

As regards the existence of a threat of execution, thc applicant submitted that the respondents hacl aireacly obtained the warrant of attachmcnt for 62 cows and vacant possession of land at Kyafoora as a way of satisflng the decree which is already sigrred pcnding approval by police. Although mention was made regarding the sale ofthe cows, no evidence was provided to support the assertion. The warrant is attached to the applicant's application and it is markcd .rnnexture "H". This is evidence of eminent threat of execution.

I therefore grant the application and make the following orders:-

- l. An interim order of stay of execution of the orders in HCCS Nos. 012 & 034 of 2016 is hereby issued pending the disposal of Miscellaneous Application No.275 of 2O2l or until turther orders of this Court. - 2. The registrar of this Court is hereby directed to fix Miscellaneous Application No.275 of 2027 for hearing in the next 2l days. - 3. The costs of this application shall abide the outcome of the substantive application for stay of cxecution.

I so order Dated at Kampirla this..... rLt<). . da.y of 202). CH ORION BARISHAKI JUSTICE OP APPEAL

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