Kasukas and Others v Kyakimwa and Others (HCT-01-LD-MA-0047-2025) [2025] UGHC 552 (14 July 2025)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

# **HCT-01-LD-MA-0047-2025**

### **(ARISING OUT OF HCT-01-LD-MC-0008-2025)**

### **1. KASUKA GODFREY**

# **2. KASUKA FRED**

**3. KASUKA GEOFFREY :::::::::::::::::::::::::::::::::::::: APPLICANTS**

### **VERSUS**

- **1. KYAKIMWA ALICE** - **2. MUHINDO JOHN KASUKA** - **3. NZIABAKE EDITH** - **4. MBAMBU YODESI** - **5. MASIKA HARRIET** - **6. THUNGU SCOVIA ::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE: HON. JUSTICE VINCENT WAGONA**

# **RULING**


#### **Introduction**:

- 1. The Applicant brought the instant Application by Notice of Motion under Sections 14, 33, 38 and 39 of the Judicature Act, Section 98 of the Civil Procedure Act, Order 22 Rule 23, Order 43 Rule 4 (3), Order 50 Rule 8 and Order 52 Rules 1 and 2 of the Civil Procedure Rules seeking Orders that; - - **(1)An interim Order for stay of execution of the Judgment and Orders against the Applicants in Civil Suit No. 007 of 2020 be issued pending the hearing and disposal of the main application No. 008 of 2025 in the High Court.** - **(2)Costs of this Application be provided for.**

# **Grounds of the Application**:

- 2. The grounds of the Application are set out in the Affidavit in Support of the Application deponed by the 1st Applicant. Briefly, the grounds are that; - - (1)The Respondent filed Civil Suit No. 007 of 2020 at Bundibugyo Chief Magistrates Court against the Applicants which was decided in favour of the Respondents. - (2)The Applicants filed Application Cause No. 008 of 2025 that is pending hearing and determination in the High Court.


- (3)The Applicants being dissatisfied with the Judgment and Orders of the learned trial Magistrate Grade One, have filed an Application seeking for extension of time to appeal in the High Court. - (4)The Respondents have commenced enforcement measures to execute the Judgement/Decree in Civil Suit No. 007 of 2020 against the Applicants. - (5)The Applicants have a plausible application on the merits which raises serious questions of law and/or fact that warrant stay of execution against the Applicants. - (6)The trial court ordered for the distribution of the Applicants' late Father's estate by the Court bailiff. - (7)The Applicant's Application shall be rendered nugatory if this Application is not granted. - (8)The Applicants shall suffer irreparable loss if stay is not granted. - (9)It is in the interest of justice that this Application is granted.

# **Respondents' Reply**:

3. The Respondents jointly opposed this Application through the Affidavit in Reply deponed by the 1st Respondent, who deposed in brief that; - (1)This Application is bad in law, an abuse of Court process, and frivolous.


- (2)The Applicants' application for stay of execution has no chances of success, is incompetent, frivolous, an abuse of court process and a complete sham. - (3)An execution Order in Civil Suit No. 07 of 2020 ordering the distribution of the estate was already issued to a court bailiff on 7th April 2025 and the Applicants' application for interim stay has been belatedly filed and the same is overtaken by events. - (4)The suit land has a cocoa plantation and the Applicants are trying to take advantage and/or abuse court litigation so that they can continue harvesting the cocoa to the Respondents' detriment as judgment creditors. - (5)The Respondents are bound to suffer irreparable loss if this stay is granted. - (6)The Applicants have not demonstrated that there is a presence of a pending substantive application for stay with a strong likelihood of success and it is in the interest of justice and the preservation of the good image of court litigation that this Application is not granted.

#### **Representation and Hearing**:


4. *Mr. Kwikiriza Herbert* on brief for *Mr. Enock Wahinda* appeared for the Applicants while *Mr. Kamara Japhy* appeared for the Respondents. Both Counsel addressed me by way of written submissions which I have considered.

#### **Applicants' Submissions**:

- 5. Learned Counsel for the Applicant submitted that this court is under duty to make orders of stay of execution. That the Applicants meet the grounds for stay of execution because they filed Miscellaneous Cause No. 008 of 2025 in which they fault the learned trial magistrate for distributing their late Father's estate without following the law that governs intestate estates. That as a result, the Applicants have proved that there is a pending application which raises serious questions of law. - 6. Secondly, that the Applicants shall suffer substantial loss if stay of execution is not granted since the Applicants as beneficiaries to the estate of their late Father's estate are in possession of part of the estate and they are at the verge of being evicted from the parts they are occupying by reallocating to them other parts of the estate, thereby causing loss of developments put thereon by the Applicants. That the Respondents are also in possession of different parts


of the estate and that a stay of execution will not cause them any irreparable loss.

#### **Respondents' Submissions**:

- 7. Learned Counsel for the Respondents submitted that much as this Court has unlimited jurisdiction and can hear and determine this Application, the Applicants ought to have first made this current Application before the trial court. Further, that the conditions that the Applicant must satisfy to justify grant of an interim order were discussed by the Supreme Court in **Hwang Sung Industries Ltd vs. Tajidin Hussein SC Civil Application No. 19 of 2008**. That the conditions are that; there is a competent notice of appeal, a substantive application is pending; and that there is a serious threat of execution. - 8. That in the instant case, there is clearly no pending appeal before this Court, and that the Applicants' Application for stay of execution is not substantive at all. The Applicants did not demonstrate any grounds for grant of stay of execution in either the Applicant's Affidavit nor the Applicant's submissions. That in the case of **Kigozi Andrew vs. Mukasa Ronald, Miscellaneous Application No. 1364 of 2022**, Court dismissed the Applicant's Application

 for interim stay because the Applicant failed to adduce evidence to prove that there was a pending appeal, application and that there was an imminent threat. That in this case, the Applicant has not provided and or brought any evidence to show that there is existence of an imminent threat of execution; which condition is very cardinal in the grant of Applications such as the instant one. Counsel further submitted that the Applicants' current maneuvers of filing this Application are calculated towards frustrating the Respondents from realizing the fruits of their judgement.

## **CONSIDERATION BY COURT**:

## **Preliminary Issue: Regarding absence of lower court judgment**

9. Execution which is generally governed by Part III of the Civil Procedure Act, as well as **Order 22** of the **Civil Procedure Rules** in its widest sense signifies the enforcement of or giving effect to the judgments or orders of courts of justice. (See case of **Unique Holdings Ltd vs. Business Skills Trust Ltd, HCCS No. 402 of 2012**). This means that before an execution is carried out, there must be a judgment of court which the successful party would seek to enforce. **Order 21 Rule 1** of the **Civil Procedure Rules** provides that after a case has been heard, the court shall pronounce judgment either at once or on


some future date and in **Orient Bank Ltd vs. Fredrick Zaabwe & Mars Trading Limited, Supreme Court Civil Application No.17 of 2007**, it was held that, a judgment should be in writing and signed to ensure its authenticity and validation as the judgment of the judicial officer making it.

- 10. In the instant case, whereas the Applicants are seeking an interim stay of execution of the Judgment and Orders issued against them at the Chief Magistrate's' Court of Bundibugyo at Bundibugyo in Civil Suit No. 007 of 2020, which is not a court of record, the Applicants have not availed this Court with a copy of the said Judgment for this Court to first have the opportunity of first acquainting itself with the impugned judgment and Orders for which it is asked to issue an Order of stay of execution. I have critically examined the Application and the Affidavit in Support thereof and found that the impugned judgement is not attached for consideration by this Court. Pursuant to **Section 101** of the **Evidence Act, Cap 8**, the burden of proof of the existence and contents of the impugned judgment rests on the Applicants. - 11. The existence of the trial court's judgement before an Application for stay of execution is determined is not merely a formality but a fundamental requirement for the court to properly exercise its judicial function because, the court must be well conversant with what is being stayed before it issues its


orders of stay of execution. Without sight of the judgment or order, the court cannot understand what exactly is being stayed and the court is left in the dark on whether it is a monetary decree, an order for vacant possession, a specific injunction, or something else. The terms of the judgment are very crucial for determining the potential impact of a stay and whether the applicant truly has a basis for seeking it.

12. In the absence of the trial court's judgement, this court cannot properly assess the prejudice that would be caused to either party by granting or refusing the stay of the judgment and, granting a stay of execution against an unseen judgment of a lower court carries a high risk of making an erroneous or illinformed decision, which could lead to an abuse of court process or injustice to the Respondent. This Court would need sufficient information to satisfy itself that the extreme measure of stay of execution is warranted. The judgment of the lower court is a very critical document that both parties, and the court, rely on, and denying the court access to it, is a significant procedural flaw which cannot be ignored by this court. That alone means that this Application is devoid of any merit because this Court cannot stay execution of what it does not know.


## **Merits of the Application:**

- 13. On the merits of the Application, for a stay of execution to be granted, there must be a real and imminent threat of execution of the judgment or order. (**Hwang Sung Industries Ltd vs. Tajidin Hussein SC Civil Application No. 19 of 2008**). The Applicants must demonstrate that execution is likely to occur before the substantive application can be heard, thereby potentially rendering any appeal or application ineffective. In **Zubeda Mohamed & Anor vs. Wallia & Anor (Civil Reference 7 of 2016)**, the Supreme Court noted that; - *"Applications for interim orders are granted pending determination of the substantive application, not the appeal. An interim order is a stop-gap measure to ensure that the substantive application is not rendered nugatory."* - 14. I critically examined all the evidence on record and found an Execution Order issued on 7th April 2025 to a Court Bailiff by the trial Court in Civil Suit No. 007 of 2020. The said Execution Order is attached as Annexture "C" on the Respondents' Affidavit in Reply and it was issued in execution of the judgement, decree and orders of the trial court in Civil Suit No. 007 of 2020. In the circumstances of this case, since the trial Court already ordered


execution of its judgement, it means that an application for interim stay of execution is overtaken by events and cannot be granted and since the execution process was already ordered by the trial court, through the issuance of the execution order, the purpose of an interim stay has been defeated. The Applicants filed the instant Application on 8th May 2025 long after the trial Court had ordered execution of its judgment on 7th April 2025 in Civil Suit No. 007 of 2020.

For those reasons, the instant Application for an interim stay of execution is devoid of merit and it is therefore hereby dismissed with costs to the Respondents. I so Order.

> **Dated at Fort Portal this 1 st day of July 2025**


Vincent Wagona

**High Court Judge**

**FORTPORTAL**

**Ruling delivered on 14th July 2025**