Kalema v Namutanyi (Miscellaneous Application 2493 of 2024) [2024] UGHCLD 279 (13 November 2024)

## MA 2493 OF 2024

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISCELLANEOUS APPLICATION NO. 2493 OF 2024 (ARISING FROM CIVIL SUIT NO. 103 OF 2007) KALEMA FRANCIS::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

#### VERSUS

NAMUTANYI REHEMA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

BEFORE: LADY JUSTICE IMMACULATE BUSINGYE BYARUHANGA

# **RULING**

This application was brought by way of Notice of Motion under section 33 of the Judicature Act, 98 of the Civil Procedure Act Order 43 rule 4 and Order 52 rules 1 & 3 of the Civil Procedure Rules seeking the following Orders: -

- a) Stay of Execution of the judgment and decree in High Court Civil Suit No. 103 of 2007 do issue pending the hearing and final disposal of the applicant's appeal in the Court of Appeal vide Civil Appeal No. 772 of 2023. - b) Costs be provided for.

The application is supported by the affidavit of Francis Kalema and it is premised on the following grounds: -

- 1. The applicant was the unsuccessful party in High Court Civil Suit No. 103 of 2007. - 2. The applicant being dissatisfied with the decision of the court in High Court Civil Suit No. 103 of 2007.

- 3. The applicant filed a notice of appeal and a letter requesting for typed copy of the proceedings and the appeal is pending before the Court of Appeal as Civil Appeal No. 772 of 2023. - 4. The applicant is likely to suffer more substantial loss than the respondent if this application is not granted. - 5. This application will safeguard the applicant's right of appeal for if it's not granted the applicant's appeal shall be rendered nugatory. granted the applicant's application shall be rendered nugatory. - 6. The application has been brought without unreasonable delay. - 7. The applicant's intended appeal has a high probability of success and may be rendered nugatory if the respondent is not halted from proceeding with execution. - 8. There is a serious threat of execution of the decree or order if the application is not granted. - 9. It is in the interest of justice that the order stay stay be issued restraining the respondent from executing the judgment and decree in High Court Civil Suit No. 103 of 2007 pending the determination of the main appeal.

Counsel for the respondent filed an affidavit in reply deposed by the respondent and filed in court on 7th November 2024. In the said affidavit in reply, the respondent opposed the application for stay of execution and deposed that the application is an abuse of court process, bad in law and does not satisfy the grant of stay of execution and the same should be dismissed with costs. The respondent further deposed that the application is intended to delay her from enjoying the outcome of the judgment delivered in her favour and it had been awakened by the process commenced to realise the fruits of her judgment. According to the respondent, an appeal does not operate as stay of execution.

On 8th November 2024, Counsel for the applicant filed an affidavit in rejoinder deposed by the applicant who stated that if the stay of execution is not granted it would render the appeal nugatory and substantial loss would result to him since the mode of execution applied for was by way of arrest which would limit the applicant's personal liberty that cannot be compensated by award of damages. The deponent further deposed in paragraph 6 of the affidavit in rejoinder that security for due performance is not one of the conditions prior to the grant of an order of stay of execution in the High Court.

At the hearing of the application, the applicant was represented by Counsel Hamza Sebuta and Counsel Ssemwanga Nasser. The respondent was represented by Counsel Richard Adubango. All counsel submitted orally in respect of the parameters given by court regarding the conditions for stay of execution. I shall refer to the submissions of counsel while considering the conditions for stay of execution pending appeal.

## **Decision**

It should be noted that in applications for stay of execution pending appeal the provisions of order 43 rule 4(3) of the Civil Procedure Rules have to be taken into account. Application of such a nature must be made after a notice of appeal has been filed and the applicant is prepared to meet the other conditions as provided for under the law of stay of execution pending appeal. In the instant case, the Notice of Appeal was uploaded in ECCMIS on 14th April 2023 immediately after the delivery of the judgment in the main suit.

## **Conditions for stay of execution pending appeal**

1. Furnishing proof of the fact that substantial loss may result to the applicant unless the stay of execution is granted. On this condition, counsel for the

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applicant submitted that substantial loss means great loss and any loss great or small that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal. Counsel argued that in this case the respondent preferred to apply for execution by way arrest of the applicant and that even if the applicant was successful on appeal his rights of liberty would be violated and curtailed if the order for stay is not granted.

In reply, counsel for the respondent submitted that it was the duty of the applicant to prove that substantial loss would result if the application for stay of execution was not granted. Counsel made reference to section 101 (1) of the Evidence Act to that effect. Counsel further submitted that the applicant had not adduced any evidence to prove that he will suffer substantial loss if execution is not stayed. Counsel argued that to the contrary it is the respondent who has up to now not enjoyed the fruits of her judgment where she was supposed to have received Ug. Shs 100,000,000 as general damages and the title of the suit land should have been transferred back into her names.

Under this principle 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*. See also *Makerere University and Another v. Ndagire Joyce and 2 others HCMA 1030 of 2023* where Ho. Justice Wamala Boniface stated that for a court to determine whether or not substantial loss will be occasioned to a party, it is necessary to establish what in law amounts to substantial loss. This need not be determined by a mathematical formula whose computation yields to any particular amount but leads to a qualitative result. "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. Order 43 rule 4 (3) (a) of the Civil Procedure Rules provides for this condition. There must be proof that substantial loss may result to the party applying for stay of execution. In the instant application, the applicant deposed that the respondent had applied for execution of the decree by way of arrest and detention which would mean affecting the personal liberty of the applicant by being detained in civil prison before the determination of the appeal. To this extent, the applicant has proved the condition of substantial loss.

2. The application has been made without unreasonable delay. Under this condition the applicant must prove to court that he/she has applied for stay of execution pending appeal within a reasonable from the date when the decree or order was issued. This condition has to be determined in accordance with the circumstance of each case. On this condition, counsel for the applicant submitted that the application for stay of execution had been made without unreasonable delay since the applicant had lodged a notice of appeal immediately after the issuance of the judgment and applied for the record of proceedings. In reply, Counsel for the respondent submitted that judgment was delivered in favour of the respondent on 14th April 2023 and on the same day the applicant filed a notice of appeal. Counsel for the respondent argued that the memorandum of Appeal was filed on 27th August 2024 yet the letter for confirmation of the record of proceedings was received by the applicant's counsel on 29th July 2024. According to counsel for the respondent, the

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applicant was awakened by the application for execution and that that why the applicant's counsel filed the application for stay of execution. Counsel for the respondent argued that the notice to show cause why execution should not issue was issued on 3rd September 2024 and it was to be heard on 23rd September 2024. Counsel for the applicant filed an application for stay of execution after receiving the Notice to Show Cause why Execution should not issue and this amounted to inordinate delay to file the application for stay of execution.

According to the record of proceedings, the Notice to Show Cause why Execution should not issue was endorsed by the Registrar on 3rd September 2024 and it was to be heard on 24th September 2024 at 11.30am. This annexture "E" to the applicant's affidavit in support of the application for stay of execution. The applicant's counsel filed the application for stay of execution on 20th September 2024. This is seventeen days after the issuance of the Notice to Show Cause why Execution should not issue. This is reasonable time according to the record of proceedings and the applicant applied for stay of execution within reasonable time.

3. The applicant has given security for due performance of the decree or order as may ultimately be binding upon him or her. On this condition, counsel for the applicant submitted that this ingredient is not mandatory and made reference to the case of *Rose Agutti v. Rutingi Properties and Another HCMA 521 of 2024.*The applicant retaliated the same stamen in paragraph 6 of the affidavit in rejoinder by stating that security for due performance is not one of the conditions prior to grant of an order for stay of execution. In reply Counsel for the respondent submitted that security for due performance is one of the condition for grant of an application for stay of execution and since the applicant did not stay anywhere in the affidavit in support of the application,


court should not grant the same since he had not proved security for due performance of the decree. Counsel for the respondent made reference to the case of *Kabiito Karamagi & Another v. Yanjian Uganda Company Limted & Another HCMA No. 1274 of 2023* where Justice Mubiru Stephen held that courts have instead been keen to order security for costs because the requirement and insistence on a practice that mandates security for the entire decretal sum 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. This condition is provided for under Order 43 rule 4 (3) (c) of the Civil Procedure Rules. There must be proof that security has been given by the applicant for the due performance of the decree or order. In the case of *Formula Feeds Ltd & 3 others v. KCB Bank Ltd HCMA 1647 of 2022*, Hon. Justice Mubiru Stephen held that 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. In the instant case, I hereby order the applicant to deposit a sum of Ug. Shs. 80,000,000 (Uganda Shillings eighty million) on the courts security account within sixty days (60) from today as security for due performance of the decree. Failure to do so, execution shall issue accordingly.

The Court of appeal in the case *of Kyambogo University v. Prof. Isaiah Omolo Ndiege Court of Appeal Miscellaneous Civil Application No. 341 of 2013* added on

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the conditions to be meet before the application for stay of execution is granted and it included the following;

- 4. There must be serious or imminent threat of execution of the decree and the applicant must prove that if the decree is not granted, the appeal will be rendered nugatory. In this case, the applicant has proved that the Notice to Show cause was issued by the registrar and this condition has been met by the applicant. This is contained in the affidavit in support of the application as annexture "E". - 5. The appeal is not frivolous and has a likelihood of success. Under this condition, the court handling the application for stay of execution is not determining the merits of the appeal but only considers whether there are arguable legal principles on appeal. The grounds of appeal must be premised on the law and facts of the case. On this condition, Counsel for the applicant submitted that the appeal is not frivolous since the grounds of appeal had been set out in the application for stay of execution. On the other hand, counsel for the respondent submitted that the affidavit in support of the application and the affidavit in rejoinder are devoid of any facts about how the appeal will be successful. It should be noted that an appeal is considered frivolous if the prospects of the appeal are too remote. All that court has to consider is whether the case on appeal is arguable. The grounds of appeal must be based on the law and facts. It is not the duty of the court whose decree or order is appealed from to determine the merits of the appeal. In this case the applicant attached the memorandum of appeal as annexture "D" with seven grounds of appeal based on law and fact. Since the grounds of appeal are based on law and fact, I would not consider the appeal frivolous. It is an arguable appeal.

6. Refusal to grant stay of execution would inflict more hardship than it would avoid. On this condition, Counsel for the applicant submitted that since the mode of execution applied for was by way of arrest and detention, it would limit the applicant's fundamental rights and would cause a lot of hardship not only to the applicant but his family too. In reply, Counsel for the respondent submitted that if the application is granted, it would cause more hardship on the respondent since she is in possession and if she lost the appeal, the certificate of title would revert to the applicant and she would leave the suit land. According to the case of Formula Feeds referred to above, 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. 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. In this case, since I have already ordered for security for due performance, the successful party on appeal would be entitled to automatic monetary security. Since the respondent has applied for execution, let the same be staying pending the appeal in the court of Appeal.

In the result, the application has been conditionally allowed with the following order;

a) An order do issue staying execution of the judgment and decree in HCCS No. 103 of 2007 pending the hearing and determination of Court of Appeal Civil Appeal No. 772 of 2023.

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- b) The order in (a) above is made on condition that the applicant shall deposit a sum of Ug. Shs. 80,000,000 (Uganda Shillings eighty million) into the security account of the court being security for due performance of the decree to be deposited within 60 (sixty) days from the date of this order. - c) In case of default by the applicant, on the condition in (b) above, the order of stay of execution shall lapse and execution shall issue accordingly. - d) The costs of this application shall abide the outcome of the appeal.

I so order.

Immaculate Busingye Byaruhanga Judge 13th November 2024. Ruling delivered via ECCMIS.