Kasinzi alias Gatsinzi v Nyamayaalwo ans 2 Others (Miscellaneous Application No. 1494 of 2022) [2022] UGHCLD 185 (19 September 2022)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DIVISION)

## **MISCELLANEOUS APPLICATION NO.1494 OF 2022**

#### (Arising out of Miscellaneous Application No. 1493 of 2022)

#### (All arising from Civil Suit No. 156 of 2014)

## EDWARD KASINZI alias

GATSINZI:::::::::::::::::::::::::::::::::::

$\mathsf{S}$

#### **VERSUS**

- 1. HUSSEIN KISIKI NYAMAYAALWO - 2. MINSA NABAGABO

3. NDUGA ABDUL:::::::::::::::::::::::::::::::::::: 15

#### Before: Lady Justice Alexandra Nkonge Rugadya.

application and that costs of the application be provided for.

#### Ruling.

#### Introduction: 20

The applicant by way of motion under the provisions of Section 33 of the Judicature Act Cap. 13, Section 98 Civil Procedure Act Cap. 98 cap. 71 and Order 52 rules 1 & 3 of the Civil Procedure Rules SI 71-1 filed this application seeking an interim order to be issued against the respondents, their agents and assignees in title to stay the execution of the decree and judgement in Civil Suit No.156 of 2014 pending the determination of the main

# Grounds of the application:

The grounds upon which this application is premised are contained in the affidavit in support of the application deponed by the applicant. He states inter alia, that the respondents

instituted Civil Suit No.156 of 2014 against him for orders of cancellation of the special 30 certificate of title of land comprised in Buruli Block 219 plots 13 & 16 LRV 1840 Kidudula

Juliet

Estate Land dt Ko;r7'lunlna that he had obtaincd; rccovcry of land, general and aggravated damages. The matter was heard and judgcment entcrcd in favour of the respondents on 2"d September,2022.

5 That being dissatisfied with the judgement of this court, the applicant through his lawyers lodged a Notice of Appeal, requested for the certified copy of the record of proceedings and hled an application for stay of execution of the decrcc and judgement pending the determination of the appeal. That the appcal has high chances of success since there are serious questions of law and fact to be determincd.

ln addition, the applicant averred that thcre is cmincnt thrcat of exccution as thc respondents are already applying to the commissioner Iand registration to have the applicant's title cancelled and that upon learning of the delivery of thc judgcment, the respondents and their agents desccnded onto the suit land, cut thc applicant's trees and threatened his workers with immediate eviction and that it was the Police's intcrvcntion that saved his developments on the land. 10

That the applicant is likely to suffer irreparable loss if thc interim stay of execution, which has been brought without undue delay, is not granted as the appeal shall be rendered nugatory therefore it is just, fair, equitable and in the intcrest ofjustice that this application is allowed. 15

The 1\$ and 2n,t respondents opposed thc application through thcir joint affidavit in reply deposed by Mr. Hussein Kisiki Nyamayaalwo who stated inter alia that not only is the instant application premature, frivolous and lack mcrit, but thc same should be dismissed with costs and that filing an appeal and a letter requesting for a typcd rccord of proceedings does not automatically entitle the applicant to stay of execution. 20

That the main application Mlscellaneous Appllcatlon No.7493 of 2022 has not been fixed for hearing as the same has no date and is doomcd to be dismissed with costs against thc applicant and that the intended appeal has no mcrit because thc grounds raiscd by the applicant are set to be rejected. 25

The l" & 2",lrespondents also denied having applicd to the Commissioner Land Registration to have thc applicant's title cancelled, and that thcy have not yet applied for exccution of the orders of this court, or taken any stcps for that mattcr to exccute the samc and as such, therc

is no execution to be stayed.

In addition, that the respondents have not bcen to thc suit land, never cut any trees or threatened any of the applicant' workers with eviction and that the police reference adduced by thc applicant is not correct since it docs not cvcn indicatc the Police station whcrc the filc

is being handled or the fact that the respondcnts arc suspects. 35

Further, that even though thc applicant has not mentioned thc irreparable Ioss he will suffer; the fact that he is not the rightful owncr of the suit land will not be changed, even on appeal therefore he cannot claim irreparable loss ovcr land that hc docs not own, and over which court has issued a permanent injunction stopping the applicant from using the land.

- 5 In rejoinder, the applicant stated that filing a notice of appeal and a lcttcr requcsting for a copy of the typed record of proceedings show that hc has a scrious intended appeal, and that although the main application is pending hxing and hearing, the applicant's lawyers have made numerous follow-ups to have the application that was llled on IICCIMIS scheduled for hearing and that the samc might be rendcred nugatory if this application is not grantcd, - That the applicants might have moved the Commissioncr t,and Registration to cancel the certificate of title and that the applicant's farm is at risk of being attacked by the respondents' agents yet this court ordercd that the same be protccted as was seen at thc visit to the locus. 10

That the applicant's appcal has mcrit since the samc is bascd on grounds, clearly showing the areas in which the trial judge errcd in fact and law.

## Reo"esentatlon:

The applicant was representcd by M/s Ahamya. & Co Aduocates and M/s Kob Aduocdtes, while the lst and 2nd respondents werc represcntcd by M/s Kaganzl & Co Adtocqtes (Kc,mprrla. branch). Both counsel filcd writtcn submissions in support of their rcspective clients'case, as directed by this court.

# Consld.eratlon of the appllcatiorr bg court.

I have carefully read the plcadings, cvidcnce and submissions ofcounsel, the details of which are on court record and which I havc taken into account to dcterminc whether or not this application satisfies the conditions warranting thc grant of thc prayers sought hercin.

'l'hc Suprcmc court in thc casc of Chinc Hendn International Cooperatlon Group Co. Ltd us.lustus Kgabahuta Mlscello. eous Application No.sO ol 2021hcld that: 25

> aThe cora,sld.er. Itlon tot the gtant of d.n lnterlm ot'der of stag of executlofl or lnterl'm lnJunctlo,i ls uhethet the'e ls q. substaitltte appllcdtlo pe,I,d.ln.g q.nd, whether there ls a serious threat ol executlon before heo,dn,g of the substantlve appllcdtloa. .lveedless to say, there ',t,./.st bc d. ^otlce of appeaL"

Thc abovc criteria werc cnunciatcd in in thc casc ol Zubed.a Mohamed. & Anor as Lo,llr: Wa.llo. & Anor Clull Reference No, 07 of 2076 whcrcin court summariscd thc conditions AS:

"In slJrnfi(rry, there are thtee cond.ltlo s thdt the o'ppllco, t must sot{sJ&r to JusttJy the grd.^t oJ q.n l'rterl,rr order;

- 7. A cornpete^t Notlce ol Appeal; - 2. A substantfue appllcatlon; - 3. A serlous thteat oJ execution.

#### 5 (See also: Hutdng Sung l^dustrles Ltd us faJdin Hussein & others, Supreme Court Civil Appllcation No.19 of 2OOa)

In the instant case, it is not in disputc that a Noticc of Appeal in respect of Cirdl Sutt o.155 of2074was lodged by the applicant through his lawyers. According to the Electronic Court Case Managemcnt Information System, thc applicant's Noticc of Appeal was filed in this court on 6rh Septembcr, 2022 and thc samc was rcccivcd by thc Court of Appeal of the same date as per Annexure 1{' of the applicant's affidavit in support.

In addition, there is a substantivc application vidc lltiscellaneous Applicatioa No.7493 ol 2O22 for an ordcr of stay of cxecution of thc decrcc and judgcment of the I{igh Court in Ciuil Sult JVo. I55 of 2074, pending thc hcaring and dctermination of thc appeal.

On the question as to whether therc is scrious or cmincnt threat of execution of the decree or orders, it was brought to the attcntion of this court that the respondents are applying to the Commissioner Land Registration to havc thc applicant's titlc cancclled and that when the respondents got to know ofthejudgcment dclivcrcd on 2"d September,2022,lhe respondents and their agents dcsccndcd on thc suit land, cut down thc applicant's trees and threatcned his workers with immediate cviction. (refer to paragraphs 70 & 77 of the affidanttt tn 15

#### support.) 20

That it took the intcrvcntion of thc [)olicc to savc thc applicant's devclopments on the land, claims which the respondcnts howcvcr rcfutcd. Thc applicant did not adduce any evidence in proof of any of the above avcrmcnts. Howevcr, it is tritc that once an order is issued it must be executed, unless a stay of that ordcr is issued by court.

In the circumstanccs, thc ordcr for the intcrim stay of exccution of the dccree issued in Clull Sult JVo. I55 of 2014 sought by thc applicant is ncccssary to preservc the prevailing status quo until the substantive application for stay of cxccution is heard and determined. 25

Consequently, the application succeeds in the following terms

a. An ord.el fo. intel.ltn stag oI executlorr of the decree and judgement oJ this court issued on 2"d September, 2022 ls herebg grdnted., pending the determinqtion of the maln dppllcatlon, vlde: Miscello.neous Applicqtion No.7493 of 2022;

b. An l,rterim lnJunctlon doth issue restrqlning the respondents from d.lie7.qti,rg or d.isposing o!, or creqtlng thlrd partg rtghts dnd or interfering with the staj1as quo ln respect of the sult land, untll d.etennination of the aloresqid substa.ntiae appllcation;

1y'P'6

c. No orders as to costs.

I so order.

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(lakop

Alexandra Nkonge Rugadya **Judge**

Delivered via email<br>Ohnboug<br>19/09/2022

19<sup>th</sup> September, 2022.