Kalyeboga v Muhammed (Civil Application 740 of 2023) [2024] UGCA 86 (12 April 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

## CIVIL APPLICATION NO.74O OF 2023

## ARISING FROM CIVIL APPEAL NO.247 OF 2O2O

# 10 (ALSO ARTSTNG OUT OF CM SUIT NO. 0178 OF 2OO9l

Applicant Kalyeboga Appolonaris=

## Versus

Hussein Muhammed == = Respondent

#### 15

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

### (SINGLE JUSTICEI

## 20 RULING

This Application is brought by way of Notice of Motion under Rules 2(2), 6(2)(b) and 43 of the Judicature (Court of Appeal Rules) Directions.

It seeks for orders that: -

An order doth issue staying execution ofthe decree in HCCS No. l.

0 178 of 20O9 pending the determination of Court of Appeal Civil Appeal No.247 OF 2O2O.

ll. Costs of this application be provided for.

## Background

The brief background to the Application as discerned from the pleadings is that the Applicant was sued together with 5 others for unlawfully transferring the Respondent's properly comprised in LRV 147 folio 10 plot 4 Rubaga Road in civil suit number 178 of 2OO9 where the Respondent was

successful. Consequently, the Applicant filed an Appeal and in this Court and sought for stay of execution in the High Court. However, the High Court refused to grant the stay of execution and as a result, the Applicant hled this Application. 10

## Grounds of the Application

The grounds of the Application are contained in the Notice of Motion and the affidavit in support sworn by Kalyeboga Appolonaris briefly stating; - 15

- 1. That the said intended Appeal raises fundamental matters of law specificallg the right to a fair hearing, and of great public importance. - 2. That the intended Appeal has a uery high likelihood o/ success.

3. That the Applicant suffers imminent threat of exeantion being taken out against him by wag of euiction tLuts necessitating tLrc instant Application.

- 4. That the Applicant is a nrentlg residing with his family and the intended Appeal itself mag be rendered nugatory if the order for the stag of exeantion is not granted. - 5. That the Applicant stands to suffer substantial loss if the order of stay of exeantion is not granted. - 6. Tlnt the Applicant had initially filed HCMA No. 492 of 2O21 at the louer Court seeking an order of stay of exeantion uhich tuas disalloued. - 7. That the application has been filed without inordinate delag. - 8. That it is in the interest of justice that the said application be granted.

The Application was opposed by the Respondent who filed an a-ffidavit in reply describing the Application as a waste of the Court's time, and

- 5 without merit. The Respondent put forth the following grounds of objection; - 1. That judgment uas entered into in mg fauour in the said suit with orders that Kampala Financial Seruices Ltd's title be cancelled and that the 4tn Dekndant, Catheine Adong uacates tle suit property. - 2. That the Decree uhose exeantion is sought to be staged has since been exeanted and tle suit propertA pursuant to orders of tLe Court has since been registered in the name of the Respondent. - 3. Thnt I am informed by mg counsel that the Applicant has no ualid Appeal against Catheine Adong uho has not appealed the decree. the Applicant is not the subject of this Order and has no interest or rights pending execution. - 4. Tlat the Applicant has to date neuer served the respondent with the Notice of Appeal and the record of proceedings as required by the Court of Appeal Rules. - 5. That mg Bill o/ Costs uas taxed and alloued at Ug. SLrs. 25,067,000/= uthich the Applicant has to date failed and / or refused to settle. - 6. That the Applicant fiIed an Application for stag of Exeattion at High Court u-thich rlas dismissed with costs and the Applicant has to date failed to pay. - 7. Tlwt the Applicant has not deposited ang seanitg for costs and in tlrc euent that any form of order staging exeattion of tLLe Decree, the Applicant should deposit seanitg for due performance of the Decree in the sum o/ costs order aboue. 25

## 30 Representation

At the hearing of the Application, Machel Nyambok Omondi appeared for the Applicant while the Respondents were represented by Mr. Isaac Walukaga.

## Applicant's submissions,

- 5 Counsel for the Applicant submitted that this Application by Notice of Motion is brought under Rules 2(2) , 6(2l,, (bl, 42(2\,43 and 44 of the Judicature (Court of Appeal) Rules, Section 33 of the Judicature Act, for an order of stay of execution of the Judgment and the decree of High Court in Civil Suit No. 178 of 2OO9 pending the disposal of CACA Appeal No. 247 of 2021 . - 10 He cited the case ol Kgambogo Uniaersitg Vs ProJ. Isaio,h Omolo Ndiege CAC. Application No. 341 oJ 2013 where this Court set forth the grounds for grant of an order of stay of execution to include;

l. Tlnt the Applicant has lodged a notice of Appeal.

- 2. That there is a seious and imminent threat of exeantion of the - 15 decree/ order and that if the application is not granted, the Appeal will be rendered nugatory.

3. That a substantial loss mag result to the Applicant unless the stay of exeattion is granted.

- 4. That the application has been made uithout unreasonable delag. - 20 5. Tlnt the main Appeal is not fiuolous and has a high likelihood of success 6. That tlrc Applicant is prepared to grant seanritg for due perfonnance of the decree and,

7. That the refusal to grant stag uould inJlict more hardship that it u.tould auoid.

25 He submitted that the Applicants under paragraphs 5 & 6 of the Affidavit in Support of the Application states that being aggrieved by the Judgment and orders of the High Court, the Applicant lodged the Notice of Appeal in February 2O2O and filed in this Court Appeal No. 247 ot 2O2O.

Counsel averred that under paragraphs 8,9, 10, I I,12& 13 of the affidavit in support of the Application that if the eviction is effected, the pending CACA No.247 of 2O2O will be rendered nugatory which should not happen. He cited 30

5 the case of Dr. Ahmed Muhammed Kasule Vs. Greenland Bank (In tiquidation SCCA llo. 7 oJ 2O1O and added that this condition had been fulfilled.

It was Counsel's submission that the Applicant will suffer irreparable loss if the stay is not granted. At paragraphs lO, iI, l5 & 16 of the affidavit in support, the suit land comprised in LRV 147 Folio l0 Plot 4land at Rubaga is his matrimonial home where he resides with his wife who is the 4o' Respondent in the Appeal. That the Applicant and his entire family will be rendered homeless hence the need for an order of staying execution. 10

Counsel contended that the instant Application was made without unreasonable delay as stated by the Applicant at paragraphs 17 & 19 of the affidavit in support, the Applicant stated that besides filing the pending Appeal and in compliance with Rule 42 (l) of the rules of this Court, he had filed in High Court but the lower Court dismissed the same. That it was upon the foregoing that the Applicant within a space of 5 days from the date of the 15

ruling filed the instant Application which was duly received on the 5th of October,2022. 20

Counsel submitted that the Applicant in his affidavit under paragraphs 6, 7 & 14 among others deponed that the Appeal as per Memorandum of Appeal is grounded on the refusal by the Learned Trial Judge to grant the Applicant a hearing, and continuing with the hearing without proof of service of hearing notices on the Applicant.

## Respondent's submission.

Counsel for the Respondent submitted that the Applicant ought to satisfy grounds for a stay of execution as was held in the case ol Kgambogo

#### Uniaersitg Vs Professor Isalah Omolo Ndiege, fsupra/ 30

Counsel submitted that as can be seen from the trial record, the suit property is occupied by the 4fr judgment debtor Adong Catherine who has not filed an Application staying any orders and execution. That the claim by the Applicant that the suit property is a matrimonial home does not create any bar to execution proceedings against the 4fr judgment debtor.

5 Counsel submitted that the decree is partially executed. That the only execution proceedings that have been taken out and are pending by the Respondent relate to the 4th Judgment debtor Catherine Adong as noted from judgment.

Counsel adverted that the Application was filed after an inordinate delay because the judgment in issue was delivered on the 6ft February 2O2O yet the Application was filed on Sth October 2022. 10

That the Applicant had not furnished security for due performance of the decree for the stay order to be issued and his assertion that he was ready to deposit the security was not supported by any evidence.

# 15 Court'sDetermination.

The law governing the Application for stay of execution in this Court is provided under Rules 6(2) (b), 42(21 and 43 of the rules of this Court which allow a wide discretion to the Court to grant interim or substantive orders of stay of execution for purposes of preserving the right of Appeal where special circumstances exist.

Where an unsuccessful party is exercising an unrestricted right to Appeal, it is the duty of the Court to make such orders for staying proceedings in the judgment so as not to render the Appeal nugatory as was held in the Supreme Court decision of Lautrence Musiltua Kgazze a Eunlce Busingge

#### SCCA IVo. I8 oJ 1990 (1992) Iv KALR ss. 25

When a party exercises its right to Appeal, it's crucial to preserve the efficacy of that Appeal by preventing actions or proceedings that could render it meaningless or ineffective. This can include staying proceedings related to the judgment being Appealed to maintain the status quo until the Appeal is

resolved. The aim is to ensure that the Appellate process is allowed to proceed smoothly and that the Appellate Court can fully review the issues without being hindered by actions that might prematurely enforce or nullify the original judgment. 30

- 5 As was held by this Court in Kgambogo Uniaersitg Vs Professor Isa.iah Omolo Ndiege, CA No. 341 of 2O13 for an Application for stay of Exccution to succeed, the Applicant has to show that s/he has done the following: - 1. He has lodged a notice of Appeal - 2. Prove that there is a serious or imminent threat of execution of the - decree or order and if the Application is not granted, the Appeal would be rendered nugatory. - 3. Show that a substantial loss may result to the Applicant unless the stay of execution is granted. - 4. That the Application is not frivolous and has a likelihood of success.

5. Demonstrate that refusal to grant the stay would inflict more hardship than it would avoid.

With regard to the first condition, paragraph 2 of Applicant's affidavit in Support states that he filed an Appeal and the same is pending hearing. He attached a copy of the memorandum of Appeal to the Application and this is not disputed by the Respondent thus this condition has been met.

As to whether there is a serious or imminent threat of execution of the decree or order, Counsel for the Applicant submitted that if the eviction is effected as threatened, the pending CACA No.247 of 2O2O will be rendered nugatory, the Applicant stated in paragraphs 10, 11, l5 & 16 of the affidavit

- in support, the suit land comprised in LRV 147 Folio lO Plot 4land at Rubaga is his matrimonial home where he resides with his wife who is the 4th judgment debtor. That the Applicant and his entire family will be rendered homeless hence the need for an order of staying execution. Counsel for the Respondent submitted that the suit property is occupied by 25 - the 4th judgment debtor Adong Catherine who has not filed any Application staying any orders and execution. 30

The court notes that the execution process is still pending since costs have not yet been recovered. Thejudgment creditor's advocates have sent a demand letter, which could be perceived as a threat to execute the decree.

The demand letter by the judgment creditor's advocates is definitely a threat 35

to execute the decree. However, this threat has to be qualified with other grounds for Court to decide whether to grant the application or not.

As to whether the Applicant will suffer a substantial loss, In the case of Tropical Commodities Suppllers Ltd & Ors Vs Internationol Credit Bo,nk Ltd (in liquidatlon) [2OO4] 2 EA 331, Substantial loss was defined as loss that cannot be quantified by any particular monetary compensation, or that there is no exact mathematical formula to compute. Court went further to clarify that it is not enough to simply repeat the words of the code and state that a substantial loss will result. The specific type of loss must be clearly identified, and the court's conscience must be convinced that such loss will 15 occur

In the present case, the Applicant's counsel submitted that the Appiicant is in possession of the suit land and that he will suffer substantial loss if stay of execution is not granted. He based this submission on paragraph 9 of the Applicant's affidavit in support of the Application where the Applicant

- 20 deponed that he has been in the use of land and has heavily invested in it. Conversely, Counsel for the Respondent argued that the Applicant has never been in possession of the suit property and the record shows that the person in possession of the suit property was Catherine Adong, the fourth defendant in the original suit who is not party to this Application. - 25 From the Record ofAppeal, the land title has been cancelled by way of execution and the Respondent is now the registered proprietor, therefore execution will not cause any loss to the Applicant. These legal actions have less significant implications for him to result in financial losses, damage to property, or other adverse consequences. - 30 I have reviewed the case and it is clear to me that the Applicant has failed to demonstrate any actual loss that he will suffer if his Application is not granted. He argues that he will suffer loss because his wife is in possession of the suit land which was transferred to Kampala Financial Services Ltd but now in the name of the Respondent. This makes it difiicult to see the - 35 Applicant's loss. That said, if there will be any loss occasioned it can be

5 adequately compensated through monetary means by payment of damages in the event the appeal succeeds. From the above, the Applicant has not satisfied this condition.

As to whether the Application has a high chance of success, Gapco Uganda Ltd a Kaueesa & Anor (MA No .259 oJ 2013) defines the likelihood of success of a case to be one where the Court is satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried.

The Applicant must establish that his Appeal has a likelihood of success or a prima facie case of his right of Appeal. Based on the arguments presented by Counsel for the Applicant and on perusal of the memorandum of Appeal,

the karned Trial Judge is faulted for continuing with the hearing without proof of service of the hearing notices on the Appellant. He was also faulted for failing to find that the Respondent's purchase of the suit property was illegal and barred by law. 15

While the grounds of Appeal presented in the memorandum of Appeal are deemed sufficient, by the Applicant, they alone do not guarantee a high chance of success. While at this stage, this court cannot delve into the merits of the Appeal, after perusal of the record, it is my considered view that the Respondent has on his part put forth a good defence which weighs down the chances of success ofthe Appeal. 20

It is the responsibility of the Applicant to tilt the balance by convincing Court that the grounds of Appeal have higher chances of success. It is important to note that simply filing an Appeal does not automatically mean that a stay of execution will be granted.

On whether the Application was made without delay, it took the Applicant a period of 18 months to hle the Application which I find unreasonable in the circumstances given the fact that Judgement was delivered on 6ft February 2O2O and the Application was filed in October 2022. 30

It is important to note that the court will strive to ensure that neither party is unfairly disadvantaged or prejudiced by its decision. Ultimately, the court

will aim to strike a balance between the interests of both parties and make a decision that is just and equitable in the circumstances. 5

In the circumstances, I find that the Applicant has not satisfied the conditions for the grant of an Application for a stay of execution as sought.

In the result, the Application fails and is hereby dismissed.

10 Each party shall bear its own costs of the Application.

I so order.

-tu Dated this rJ day of 2024.

on Barishaki.

JUSTICE OF APPEAL

)