Katalihwa v Kisoke and Another (HCT-01-LD-MA-0029-2025) [2025] UGHC 546 (14 July 2025)

## **THE REPUBLIC OF UGANDA**

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

# **HCT-01-LD-MA-0029-2025**

# **(ARISING OUT OF HCT-01-LD-CA-0020-2021)**

**KATALIHWA RUHUNGA ::::::::::::::::::::::::::::::::::::::::: APPLICANT**

### **VERSUS**

### **1. ALICE KISOKE**

## **2. KISEMBO EDSON ::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

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

## **RULING**

### **Background**:

1. This protracted legal dispute between Katalihwa Ruhunga, the Applicant, and Alice Kisoke and Kisembo Edson, the Respondents, traces its origins back to **Civil Suit No. 008 of 2016** which was decided in favour of the Applicant by the trial Magistrate. This initial suit eventually escalated into **Civil Appeal No. 20 of 2021**, where the scales of justice tipped in favour of the Respondents, with judgment being entered for them by this Court on 19th April 2024. This judgment set the stage for a complex series of Applications and Counter-Applications, primarily revolving around the execution process.


- 2. Following the unfavourable judgment in Civil Appeal No. 20 of 2021, the Applicant initiated what would become a persistent effort to halt execution. His first move was to file **Miscellaneous Application No. 45 of 2025**, seeking a stay of execution. However, this Application was ultimately dismissed, the court noting a lack of demonstrable proof that the judgment creditors were actively pursuing execution at that time. - 3. Undeterred by the Applicant's initial attempt to stay proceedings, the Respondents began to actively pursue the financial ramifications of their victory. They filed **Taxation Miscellaneous Application No. 67 of 2024**, which sought to tax the costs incurred in Miscellaneous Application No. 45 of 2024. This application was successful, with costs being taxed and allowed at **Ug. Shs. 7,659,800/=**. The Applicants also filed **Taxation Application No. 64 of 2024** to recover the costs awarded Civil Appeal No. 20 of 2024. The Application was also successful with costs being taxed and allowed at **Ug. Shs. 15,942,500/=**. - 4. With costs determined, the Respondents escalated their pursuit, filing two distinct execution Applications. **Execution Application No. 03 of 2025** aimed to recover the taxed costs from Miscellaneous Application No. 45 of 2024. More significantly, **Execution Application No. 02 of 2025** was launched to execute the substantial costs awarded in the main appeal, **Civil Appeal No. 20 of 2021**.


5. Facing these twin threats of execution, the Applicant launched **Miscellaneous Application No. 16 of 2025** seeking a stay of execution of the decree and Orders issued by this Court on 19th April 2024 in Civil Appeal No. 20 of 2021 until Civil Appeal No. 1072 before the Court of Appeal of Uganda at Kampala is heard and determined. However, on 19th **March 2025**, this Application for a stay of execution was also **dismissed** on grounds that the Respondents had still not commenced any execution in High Court Civil Appeal No. 20 of 2021, and that the only execution proceedings that the Respondents had commenced were in respect of the taxed costs in **Miscellaneous Application No. 45 of 2025**.

### **The Current Application:**

- 6. This is an Application by Notice of Motion under Section 37 of the Judicature Act cap 16, Sections 82 and 98 of Civil Procedure Act cap 282, Order 46 Rules 1 & 2 and Order 52 Rules 1 and 3 of Civil Procedure Rules filed by Katalihwa Ruhunga (the Applicant) seeking the following Orders: - (1)**The Ruling and Orders arising from Miscellaneous Application No 16 of 2025 be reviewed and set aside.** - (2)**Miscellaneous Application No. 16 of 2025 be granted as prayed, with orders for the stay of execution of the orders of Court in CA No. 20 of**


**2021 vide Execution Application No. 02 of 2025 and all orders and agreements thereunder.**

(3)**Costs be provided for and be in cause.**

#### **Grounds of the Application:**

- 7. The Application is supported by an affidavit from Mr. Katalihwa Ruhunga, outlining the grounds for review. The Applicant states that he initially filed Miscellaneous Application No. 45 of 2025 for a stay of execution, which was dismissed on grounds that there was no proof of a pending execution by the judgment creditor. That following this, the Respondents initiated taxation of costs for Miscellaneous Application No. 45 of 2024 (via Taxation Miscellaneous Application No. 67 of 2024), which were taxed and allowed at UGX 7,659,800/=. - 8. Subsequently, that the Respondents filed two execution Applications: Execution Application No. 03 of 2025 for the costs awarded in Miscellaneous Application No. 45 of 2024, and Execution Application No. 02 of 2025 for the costs of the main appeal (Civil Appeal No. 20 of 2021). That the Applicant then filed a new application (Miscellaneous Application No. 16 of 2025) to stay the execution of costs in both Civil Appeal No. 20 of 2021 and Miscellaneous Application No. 45 of 2024. - 9. That this main Application for stay of execution (Miscellaneous Application No. 16 of 2025) was dismissed on 19th March 2025. That the grounds for


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dismissal were that there was no appeal against the Ruling in Miscellaneous Application No. 45 of 2024 and no proof of a pending execution regarding Civil Appeal No. 20 of 2021. The Applicant argues that the trial judge, in deciding Miscellaneous Application No. 16 of 2025, overlooked Execution Miscellaneous Application No. 002 of 2025 (related to Civil Appeal No. 20 of 2021), despite proof being attached to the Applicant's affidavit.

- 10. The Applicant highlights that the Respondents, in their own affidavit in reply, acknowledged that Miscellaneous Application No. 16 of 2025 was an "omnibus Application" intended to stay both Execution Application No. 02 and No. 03 of 2025, but that the court "inadvertently did not see" the attached pleadings for Execution Application No. 02 of 2025. The Applicant contends that this constitutes an "inadvertent error" or "mistake apparent on the face of the record" that warrants review. - 11. Furthermore, the Applicant points out that Execution Application No. 02 of 2025 includes prayers for the arrest and detention of the Applicant, his eviction from the suit land, and the Respondents being put in possession. The Applicant asserts that the trial judge's dismissal, by focusing only on Miscellaneous Application No. 45 of 2024 (which had no appeal) and neglecting the threat posed by Execution Application No. 002 of 2025, has led to a miscarriage of justice.


12. The Applicant also argues that the prayers sought under Execution Application No. 02 of 2025 would render Civil Appeal No. 1072 of 2024, which is pending in the Court of Appeal and has a high likelihood of success, nugatory. The Applicant re-emphasizes that the "human error" is a clear mistake on the face of the record, requiring no extraneous matter to prove, and that the court has the power to review and set aside the previous Ruling to grant the stay of execution. The Applicant assures there has been no undue delay in bringing this Application, emphasizing its fairness and the interest of justice.

#### **Reply by the Respondents**:

- 13. In response, both the 1st and 2nd Respondents filed affidavits to oppose the Application. They state that Civil Appeal No. 20 of 2021, arising from Civil Suit No. 008 of 2016, resulted in a judgment in their favour on 19th April 2024. They characterize the current Application as frivolous, vexatious, an afterthought, and an abuse of court process, aimed at frustrating their enjoyment of the judgment's fruits. They stated that they intend to raise a preliminary objection for its dismissal with costs, arguing it has been "overtaken by events." - 14. The Respondents maintain that the Court was justified in dismissing the prior Application for stay of execution as there was no sufficient cause for a stay of


execution of the Orders in Civil Appeal No. 20 of 2021. Critically, they state that the Applicant has already entered into a Consent Agreement with them to pay the taxed costs of UGX 15,942,800/= in Execution Application No. 02 of 2025, and this agreement (dated 19th March 2025, and attached as Annexture A) was entered into voluntarily.

- 15. The Respondents further assert that the Applicant's admission in his affidavit (Paragraph 6) that he filed an "omnibus Application" including Miscellaneous Application No. 45 of 2024 (which was not appealed against) justifies the learned trial judge's dismissal. They contend there is no "inadvertent error or mistake" warranting a review because the Applicant sought to stay something that had not been appealed. - 16. The Respondents deny that any warrant of arrest or warrant for vacant possession has been issued by the Court. Instead, they reiterate that the Applicant's agreement, by way of the consent, is solely to pay the taxed costs, and this consent has been endorsed by the Court and remains valid. They argue that the Application is speculative, driven by fear of execution, and that the Applicant cannot be arrested since he has consented to pay the costs.

#### **Rejoinder by the Applicant**:

17. In rejoinder, the Applicant filed an affidavit asserting that the current Application is not frivolous, vexatious, or misconceived, but filed in good


faith on valid grounds. He reiterates that there is indeed an "inadvertent error or mistake" constituting a mistake apparent on the face of the record.

- 18. The Applicant alleges that the Respondents have previously attempted an "illegal and disguised process of evicting him from his family land," and that there is a pending execution that must be stayed. He re-emphasizes that the trial judge, in determining Miscellaneous Application No. 16 of 2025, failed to consider evidence from Execution Application No. 2 of 2025, specifically the notice to show cause why execution should not issue, which was duly attached. - 19. While confirming that he willingly entered into a consent agreement on March 19, 2025, to pay taxed costs in Execution Application No. 03 of 2025 (arising from Miscellaneous Application No. 45 of 2024, which he did not appeal), the Applicant clarifies that he was "constrained and compelled" to request his advocates to enter into a consent agreement for the payment of taxed costs in Execution Application No. 02 of 2025 (arising from Civil Appeal No. 20 of 2024), against which he has filed Civil Appeal No. 1072 of 2024 in the Court of Appeal. - 20. The Applicant clarifies that the current Application is an "omnibus Application" for the review and setting aside of all Orders arising from Miscellaneous Application No. 002 of 2025, and for the stay of execution of all orders and agreements thereunder, specifically including the consent


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agreement of 19th March 2025, for the payment of UGX 15,942,500/=. He dismisses the Respondents' claim that the Application is overtaken by events due to the consent agreement, stating that the current Application is intended, among other things, to set aside that very consent agreement.

21. Finally, the Applicant confusingly states that he has already fulfilled his obligations and paid the taxed costs in accordance with the consent agreement for Execution Application No. 002 of 2025, since he has not appealed against those specific court Orders and does not intend to challenge them. He attached an acknowledgment of receipt (Annexture "C") as proof. Despite this, he maintains that the present Application meets all legal requirements and that its denial would cause him injustice and irreparable loss.

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

22.*Mr. Mwebaze Ndibarema* appeared for the Applicant while *Mr. Bikorwome Chrispus* appeared for the Respondents. Both Counsel filed written submissions which I have considered in this Ruling.

#### **Applicant's Submissions**:

- 12. Learned Counsel for the Applicant framed three core issues for resolution: - (1)**Whether the Application raises sufficient grounds for review of the ruling and setting aside all the orders vide Miscellaneous Application No 16 of 2025.**

 - (2)**Whether the Application raises sufficient grounds for stay of execution of orders in Civil Appeal No 20 of 2021.** - (3)**What remedies are available for the parties?** - 13. On the first issue, Counsel submitted that **Section 37 of the Judicature Act** and **Section 98 of the Civil Procedure Act** grant the Honourable Court inherent powers to make orders necessary for the ends of justice or to prevent abuse of court process. He referred to **Section 82 of the Civil Procedure Act** and **Order 46** of the **Civil Procedure Rules**, which govern review applications. He cited **Re-Nakivubo Chemists (u) Ltd (1979) HCB 12**, where *Manyindo J*, outlined the three grounds for review: discovery of new and important matters, some mistake apparent on the face of the record, or any other sufficient analogous reason. - 23. Counsel argued that the current application falls under the second ground: a mistake apparent on the face of the record. He highlighted the Applicant's affidavit, stating that the previous stay application was dismissed on March 19, 2025, due to no appeal against Miscellaneous Application No. 45 of 2024 and no proof of pending execution for Civil Appeal No. 20 of 2021. He emphasized the Applicant's assertion that the trial judge overlooked Execution Miscellaneous Application No. 002 of 2025 (related to Civil Appeal No. 20 of 2021), despite proof being attached. He further noted the


Applicant's claim that the dismissal of the entire stay application failed to consider the threat posed by Execution Application No. 002 of 2025, which included prayers for his removal from the suit land. Counsel stressed that if the present application is not granted, Civil Appeal No. 1072 of 2024, with its high likelihood of success, would be rendered nugatory. He concluded that this "inadvertent error" constituted a valid ground for review.

- 24. Counsel relied on **Edison Kanyabwera vs. Pastori Tumwebaze SCCA NO.6 of 2004**, where the Supreme Court defined an error apparent on the face of the record as an "evident error which does not require any extraneous matter to show its incorrectness." He also referred to **AL-Shafi Investment Group LLC vs. Ahmed Darwish Dagher & Anor HCT-Land Division M. A No. 901 of 2017**, where the High Court reviewed a decision that had disregarded attached evidence, deeming it an error on the record. Similarly, he cited **Mushabe Appollo vs. Mutumba Ismael & Anor M. A NO.08 of 2020**, where Hon. Justice Musa Ssekaana held that errors due to human failings should not be permitted to defeat justice. Based on these precedents, Counsel submitted that the Applicant had raised sufficient grounds for review. - 25. Regarding the second issue, Counsel reiterated his submissions from Miscellaneous Application No. 16/2025, drawing on Order 43 Rule 4 & 5 of the Civil Procedure Rules S. I-71-l and relevant case law, including **Kyambogo University vs. Prof Isaiah Omolo Ndiege Civil Application No.**


**341 of 2013 (CA)**. He highlighted that providing security for due performance is no longer a mandatory requirement in such applications, with each case being weighed on its merits, as established in **John Baptist Kawanga vs. Namyalo Kevina & Anor (Miscellaneous Application No. 12 of 2017**). He argued that the Applicant met all requirements for review and that the balance of convenience tilted in favour of the Applicant, who faced potential arrest and eviction. He concluded that granting the application would be just, fair, and equitable.

### **Respondents' Submissions**:

- 26. Learned Counsel for the Respondents expressed frustration at the Applicant's "absurd" and continuous filing of "frivolous and vexatious applications," labelling it an abuse of court process. He recounted the dismissal of Miscellaneous Application No. 045 of 2024 due to lack of evidence of execution threat, and the subsequent dismissal of Miscellaneous Application No. 16 of 2025 for insufficient cause to grant a stay. He portrayed the current application for review as a desperate attempt to "defeat justice" and prevent the Respondents from enjoying the fruits of judgment. - 27. Counsel firmly submitted that the application presented no sufficient grounds for review, asserting that the Court was justified in dismissing Miscellaneous Application No. 16 of 2025. He accused the Applicant of dishonesty and not


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coming to court with "clean hands," suggesting he considered every ruling an error.

- 28. He addressed the concept of "omnibus applications," citing **Dr. Sheik Ahmed Kisuule vs. Greenland Bank Ltd H. C. M. A No. 002 of 2012** and similar cases. While acknowledging that such applications are permissible where they are of the same nature, mitigate multiplicity of suits, or prevent injustice, he argued that the procedure used by the Applicant could not accommodate both applications in this instance, particularly because Ruhunga had not appealed against Miscellaneous Application No. 045 of 2024. - 29. He referred to **Aids Consults Limited & Anor vs. Nowen Metha HCMA 864/2022** and **Abdul Kawuniki vs. Habib Lukwago HCMA 1145/2022**, where it was held that if a court lacks jurisdiction or the procedure cannot accommodate all reliefs in an omnibus application, it should only entertain the portion rightly before it. He argued that in Miscellaneous Application No. 16 of 2025, the only matter properly before the court was the stay of execution in Miscellaneous Application No. 45 of 2024. He stated that the court correctly noted in paragraph 6 of its ruling that execution proceedings vide Execution Application No. 003 of 2025 were distinct and unappealed, thus declining to grant reliefs under Civil Appeal No. 20 of 2021. He concluded that staying execution of an unappealed matter constituted an abuse of court process.


30. Counsel emphasized that the Applicant had already entered into a consent agreement to pay Ug. Shs. 15,942,500/= to the Respondents before April 31, 2025. He argued that this consent "tied the Court's hands" as parties had already reached an agreement. Therefore, he contended that Miscellaneous Application No. 29 of 2025 was "overtaken by events" because the Applicant voluntarily consented to pay. He prayed for the application's dismissal with costs, reiterating it was an abuse of court process aimed at frustrating the Respondents from enjoying the fruits of judgment in Civil Appeal No. 20 of 2024.

### **Applicant's Submissions in Rejoinder**:

31. In rejoinder, Learned Counsel for the Applicant reiterated his reliance on the case of **AL-Shafi Investment Group LLC vs. Ahmed Darwish Dagher & Anor (Supra)** and invited this Court to review its impugned Ruling. Further that this Application has not been overtaken by events since the Applicant is also seeking to set aside the Consent Agreement in respect of the payment of the Ug. Shs. 15,942,500/=.

### **Issues**:

32. I will resolve this Application by addressing the very issues framed by Learned Counsel for the Applicant:


- (1)**Whether the Application raises sufficient grounds for review of the ruling and setting aside all the orders vide Miscellaneous Application No 16 of 2025.** - (2)**Whether the Application raises sufficient grounds for stay of execution of orders in Civil Appeal No 20 of 2021.** - (3)**What remedies are available for the parties?**

## **CONSIDERATION BY COURT:**

**Issue 1**: **Whether the Application raises sufficient grounds for review of the ruling and setting aside all the orders vide Miscellaneous Application No. 16 of 2025.**

33.**Section 82 of the Civil Procedure Act Cap. 282** provides that:

*"Any person considering himself or herself aggrieved—*

*(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or*

*(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit."*

# 34.**Order 46 Rule 1 and 2 of the Civil Procedure Rules** also provides as follows;

*"1. Application for review of judgment.*


*(1) Any person considering himself or herself aggrieved—*

*(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or*

*(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgment to the court which passed the decree or made the order."*

35.**Section 82** and **Order 46 Rule 1** above limit the **locus standi** for purposes of review to a person aggrieved by a decision of Court. In **Re Nakivubo Chemists (U) Ltd [1979] HCB 12** court guided that an aggrieved party for purpose of review is one who has suffered a legal grievance. *Justice Karokora JSC* (as he then was) in **Muhammed Bukenya Allibai vs. W. E Bukenya & Anor, SCCA No. 56 of 1996** defined an aggrieved party as a party who has been deprived of his property or whose right has been affected by the impugned judgment.


36. The grounds for review are provided for under **Order 46 of the Civil**

**Procedure Rules** which are; (a) discovery of new and important evidence which could not be produced during trial, (b) That there is some mistake or error apparent on the face of the record (c) any sufficient cause. The Applicant contends that there is a mistake apparent on the face of the record which needs to be reviewed and corrected. In **Levi Outa vs. Uganda Transport Company [1995] HCB 340**, Court noted thus;

*"the expression 'mistake or error apparent on the face of the record refers to an evident error which does not require extraneous matter to show its incorrectness. It is an error so manifest and clear that no court would permit such an error to remain on the record. It may be an error of law, but the law must be definite and capable of ascertainment."*

37. In **Mr. Satis Kumar vs. Chief Secretary, RA No. 51 of 2013**, court observed thus;

*"The term 'mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of facts or the legal position. If the error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be an error apparent on the face of the record for purposes of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment*


*cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of law or fact."*

- 38. A mistake or error apparent on the face of the record must be glaring on the face of the court record. It should not require an extensive evaluation of the law and the evidence in order to find and see it. It should not be about the legality or validity of the judgment or decision of court in relation to the laws applicable on the merits. Its resolution should not result in the court sitting as an appellate court to examine the legality and correctness of its own decision, which is a preserve of the appellate court. (See: **Bamugaya Deo vs. Peter Tinkasimire & Anor, HCM No. 90 of 2018**). - 39. In the instant case, the Applicant's central contention is that in dismissing Miscellaneous Application No. 16 of 2025, the court overlooked crucial evidence of Execution Miscellaneous Application No. 002 of 2025, which directly pertained to Civil Appeal No. 20 of 2021. He asserts that this evidence was duly attached to his affidavit in support of that application, and yet the Court held that the Court had not taken any steps towards execution of the decree in Civil Appeal No. 20 of 2021. I have critically examined the record of this Court in Miscellaneous Application No. 16 of 2025, including the Notice of Motion, the Affidavit in Support thereto and all Annextures attached thereto, and found that under Paragraph 5 of his Affidavit in Support of the

 Application, the Applicant attached a group annexture of documents collectively marked as Annexture "D" as proof that the Respondents had commenced execution of the decree in Civil Appeal No. 20 of 2021. The first document under Group Annexture "D" was a Notice to Show Cause why execution should not issue in Execution Application No. 003 of 2025 arising from Taxation Application No. 67 of 2024. This plus the Application for Execution were irrelevant and were not evidence of execution of the decree in Civil Appeal No. 20 of 2021. Instead, they were proof that the Respondents had moved to recover their taxed costs awarded to them in Miscellaneous Application No. 45 of 2024 and it was on that basis that Miscellaneous Application No. 16 of 2025 was denied.

40. However, having critically re-examined the record, I find that under Group Annexture "D", the Applicant also attached the Application for Execution and the Notice to Show Cause in Execution Application No 002 of 2025. This latter set of documents did indeed relate to Civil Appeal No. 20 of 2021, directly contradicting the previous finding that no execution steps had been taken in that specific matter. The court's earlier conclusion was based on the premise that only documents pertaining to Miscellaneous Application No. 45 of 2024 were relevant and properly before it. It appears that amidst the multitude of documents presented, some documents were missed, and not considered, in the earlier determination. While the onus remains on the


Applicant to clearly and unequivocally present their case, the presence of these documents on the record, though perhaps overshadowed by others, constitutes an error apparent on the face of the record. It is an error that, upon closer inspection of the filed materials, becomes evident without the need for extensive external inquiry. This oversight, inadvertently leading to the dismissal of the Application for stay of execution concerning the main appeal, provides a sufficient ground for review under **Order 46 Rule 1** of the **Civil Procedure Rules**.

41. Therefore, there are sufficient grounds for review due to a mistake apparent on the face of the record concerning the consideration of Execution Miscellaneous Application No. 002 of 2025. I therefore hereby resolve the first issue in the affirmative.

# **Issue 2: Whether the Application raises sufficient grounds for stay of execution of orders in Civil Appeal No. 20 of 2021.**

42. For an application for stay of execution to succeed, an Applicant generally needs to satisfy several conditions, including the existence of a pending appeal, a serious threat of execution, potential irreparable loss, balance of convenience favouring the Applicant, timely filing of the application, and often, provision of security for due performance of the decree. These principles are well-established in cases like **Kyambogo University vs. Prof Omolo Ndiege, CACA No. 341 of 2013, Dr. Ahmed Muhammed Kisule vs.**


# **Greenland Bank (in liquidation), SCCA No. 7 of 2010** and **Musiitwa Kyazze vs. Eunice Busingye, Civil Application No. 18 of 1990**.

- 43. In this case, it's clear that the Applicant has filed Civil Appeal No. 1072 of 2024, which is currently pending before the Court of Appeal. The court's reexamination of the record under the previous issue also confirmed the existence of a serious threat of execution against the Applicant in Execution Application No. 002 of 2025, which seeks to enforce the decree in Civil Appeal No. 20 of 2021. - 44. However, a closer look at the nature of the execution sought by the Respondents, and the Applicant's own actions, significantly impacts whether a stay can be granted for both modes of execution. The Respondents, in Execution Application No. 002 of 2025, are seeking two primary modes of execution: arrest and detention of the Applicant in civil prison to compel payment of taxed costs, and an eviction order against the Applicant from the suit land.

## Stay of Execution for Payment of Taxed Costs

45. The Applicant seeks to stay the execution relating to the payment of taxed costs, which includes the potential for his arrest and detention. However, the Respondents have vehemently argued that this aspect of the application has been "overtaken by events" due to a Consent Agreement entered into between the parties on 19th March 2025 in Execution Application No. 02 of 2025. This


agreement, attached as Annexture A to the Respondents' affidavit, is about the payment of Ug. Shs. 15,942,800/= by the Applicant to the Respondents. It states that:

## *"CONSENT AGREMEENT*

*This matter coming up for final disposal before HIS WORSHIP FRANCIS DAWA DEPUTY REGISTRAR this 19th day of March 2025 in the presence of Counsel Bikoromwe Crispus for the Applicants and Counsel Mwebaze Ndibarema for the Respondent, and in the presence of both parties.*

## *IT IS HEREBY AGREED AS FOLLOWS:*

- *1. That the Respondent pays the costs of the taxed bill of costs of shillings Fifteen million Nine hundred forty two thousand five hundred (15,942.500) in execution application no. 02 of 2025 to the Applicants on or before the 31st day of April 2025…"* - 46. It is a well-established principle of law that consent judgments are binding contracts between parties, forming a new agreement that is just as effective as if the court had made the order. Courts generally do not lightly interfere with consent judgments. As articulated in **Hirani vs. Manji (1963) EA 461**, a consent judgment can only be set aside on grounds that would justify setting aside or varying a contract, such as fraud, collusion, or agreement contrary to


public policy. More recently, the Supreme Court of Uganda in **Muhammed B. Kasozi & 3 Others vs. Mohamed Kasule & Anor, S. C. Civil Appeal No. 13 of 2021**, reiterated that a consent judgment is sacrosanct and cannot be varied or set aside without the consent of both parties, save for grounds such as fraud, collusion, or misrepresentation.

- 47. While the Applicant, in his rejoinder affidavit, states that he was "constrained and compelled" to request his advocates to enter into the consent agreement, and simultaneously claims that he intends to set aside this very agreement, he fails to provide any concrete legal basis for doing so. He has not alleged fraud, misrepresentation, duress (beyond a vague sense of being "constrained"), or any other vitiating factor that would allow this court to set aside the consent agreement. - 48. The Applicant's assertion that the dismissal of his application for stay of execution (Miscellaneous Application No. 16 of 2025) compelled him to enter into a consent agreement is a critical point that requires careful legal scrutiny, particularly in the context of setting aside consent judgments. The dismissal of an Application by a competent court, even if later found to have been based on an oversight (as was the case here regarding the "error apparent on the face of the record"), is a lawful act of the judicial system. It is a decision made in the ordinary course of litigation, applying legal principles to the facts presented. While the dismissal of an Application might create pressure on a


party, especially if it exposes them to immediate execution, this pressure, in itself, does not automatically constitute duress in a legal sense. For duress to vitiate a contract (and by extension, a consent judgment), the pressure must be illegitimate. Illegitimate pressure means unlawful threats or coercion that deprive the victim of their free will. In this case, the Applicant has not demonstrated that the Respondents engaged in any unlawful threats or coercion beyond simply pursuing their legal right to execute a valid judgment after the dismissal of the stay Application.

- 49. In fact, the Applicant even attaches Annexture "C" as proof that he has already fulfilled his obligations and paid the taxed costs in accordance with the consent agreement for Execution Application No. 002 of 2025, since he has not appealed against those specific court Orders and does not intend to challenge them. Annexture C shows that the Applicant has paid Ug. Shs. 7,659,800/= to the Respondent as costs in Execution Application No. 03 of 2025, and the Applicant adds under Paragraph 10 of his Affidavit in Rejoinder that this payment was in accordance with the Consent Agreement in Execution Application No. 002 of 2025. - 50. This admission is fatal to his prayer for a stay of execution concerning the taxed costs. One cannot seek to stay an execution that has already been satisfied by their own voluntary actions, especially when those actions stem from a valid and undisputed consent agreement. The consent agreement,


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having been freely entered into and subsequently acted upon by the Applicant, effectively extinguished the cause for execution related to the taxed costs. Therefore, there are no sufficient grounds to grant a stay of execution in respect of the payment of taxed costs, or the potential arrest and detention related thereto.

## Stay of Execution for Eviction from Suit Land

- 51. While the Applicant's previous actions regarding the taxed costs were addressed, the core of the remaining issue centers on whether a stay of execution against eviction from the suit land is justifiable given the consent agreement and the principles governing such Applications. - 52. The Applicant seeks to stay the execution relating to his eviction from the suit land, citing a pending appeal, Civil Appeal No. 1072 of 2024, before the Court of Appeal. He argues that if the eviction proceeds, his appeal would be rendered nugatory, causing him irreparable loss. - 53. However, a critical element that profoundly impacts this aspect of the application is the Consent Agreement voluntarily entered into by the Applicant on 19th March 2025, in Execution Application No. 02 of 2025. While this consent explicitly addresses the payment of taxed costs, its implications extend to the entire judgment from which the execution arises. - 54. The Consent Agreement in Execution Application No. 02 of 2025 for the payment of taxed costs arose directly from the judgment in Civil Appeal No.


20 of 2021. While the agreement specifically addressed costs, it was a step taken by the Applicant within the ambit of the execution process of that very judgment. By consenting to pay the costs arising from the appeal, the Applicant, in essence, acknowledged and engaged with the enforceability of the underlying judgment, at least in part.

55. The principle of the balance of convenience dictates that the court should weigh the potential harm to each party if the stay is granted or denied. A fundamental aspect of justice is that a successful litigant should not be deprived of the fruits of their judgment. As eloquently stated in **National Social Security Fund vs. Alcon International Ltd, Civil Application No. 7 of 2008 (SC)**, the primary purpose of litigation is to enable a successful party to reap the fruits of its judgment. A stay of execution is an exceptional remedy that should not be granted lightly, as it interferes with this fundamental right.

## 56. In **Tropical Africa Bank Ltd. vs. Dr. Alex Okot H. C. M. A No. 593 of 2013**,

Justice Kiryabwire emphasized that the successful party has a right to the fruits of the judgment and that a stay should only be granted in exceptional circumstances to prevent an appeal from being rendered nugatory. However, the nugatory argument must be strong and not merely speculative.

57. Here, the Respondents obtained judgment in Civil Appeal No. 20 of 2021 on April 19, 2024. This judgment presumably included an entitlement to possession of the suit land, which is now being pursued through Execution


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Application No. 002 of 2025. The Applicant's subsequent entry into a consent agreement to pay costs associated with that very judgment demonstrates a degree of acceptance of the judgment's financial implications.

- 58. In light of the Applicant's voluntary consent to pay the costs stemming from Civil Appeal No. 20 of 2021, and the absence of any legally recognized grounds to vitiate that consent, the balance of convenience now clearly tilts in favor of allowing the Respondents to enjoy the fruits of their judgment, including gaining possession of the suit land. Staying the eviction would impose further and unjustified hardship on the Respondents, who have already waited for a significant period to execute a judgment in their favor. The Applicant's consistent attempts to delay execution, even after engaging in a consent agreement related to the very judgment sought to be stayed, weigh heavily against granting a further stay. - 59. Furthermore, for a stay of execution to be granted on the ground that the appeal would be rendered nugatory, the Applicant must demonstrate that success in the appeal would be meaningless without the stay. This principle was highlighted in **Uganda Railways Corporation vs. EDR Uganda Ltd, Civil Application No. 14 of 2011 (CA)**, where the Court of Appeal emphasized that the Applicant must show that irreversible damage would occur, making the appeal fruitless. Similarly, in **National Housing and Construction Corporation vs. Salume Nabawanda & Anor, Civil Application No. 13 of**

 **2008**, it was held that where the very substratum of the appeal would be destroyed, a stay should ordinarily be granted.

- 60. However, the Applicant has not demonstrated to this Court that his said appeal has any chances of success. Filing an appeal alone is not sufficient; the appeal must be shown to have a high likelihood of success. In this case, the Applicant has not done so and yet, the court must balance the Applicant's interest in preserving his appeal with the Respondents' right to enjoy the fruits of their judgment. In **Banco Arabe Espanol vs. Bank of Uganda, SCCA No. 8 of 1998**, the Supreme Court cautioned against granting stays as a matter of course, emphasizing the need to consider whether the appeal has a reasonable chance of success and if irreparable injury would truly result. In the instant case, apart from attaching a memorandum of appeal for Civil Appeal No. 1072 of 2024 to his Affidavit in Support of the Application, the Applicant did not demonstrate whether the proposed grounds of appeal have a likelihood to succeed. The mere existence of an appeal, without any substantive demonstration of its probable success, falls short of establishing grounds for a stay against the eviction. - 61. While the Applicant has a pending appeal and faces a threat of eviction, the existence of a valid and unchallenged consent agreement, under which he has already made payments, significantly alters the balance of convenience. The consent agreement, being sacrosanct in law unless vitiated by specific legal


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grounds (none of which have been established here), implies an acceptance of the judgment's enforceability. To grant a stay against eviction in these circumstances would unduly prejudice the Respondents, who are entitled to enjoy the fruits of their judgment, and would encourage a cycle of endless litigation and delay.

62. Accordingly, the Application does not raise sufficient grounds to warrant a stay of execution of the orders in Civil Appeal No. 20 of 2021 regarding the eviction from the suit land. This issue is therefore resolved in the negative.

## **Issue 3**: **What remedies are available for the parties?**

- 63. In light of the analysis of the preceding issues, the following remedies are available to the parties: - 64. This Court having found a "mistake apparent on the face of the record" in the dismissal of Miscellaneous Application No. 16 of 2025, specifically regarding the non-consideration of the threat of execution arising from Civil Appeal No. 20 of 2021 through Execution Application No. 002 of 2025 means that the Ruling and Orders arising from Miscellaneous Application No. 16 of 2025 are reviewed and set aside to the extent of this specific oversight. This means the previous finding that "no proof of a pending execution regarding Civil Appeal No. 20 of 2021" is rectified. - 65. The Applicant's request for a stay of execution concerning the payment of taxed costs (Ug. Shs. 15,942,500/= from Execution Application No. 02 of


2025 and Ug. Shs. 7,659,800/= from Execution Application No. 03 of 2025) is **denied**. This denial is based on the Applicant's voluntary entry into a valid consent agreement for the payment of these costs, his subsequent admission of having fulfilled these obligations. A consent agreement is binding and operates as an extinguishment of the cause for execution related to the consented terms.

- 66. The Applicant's request for a stay of execution of the eviction orders arising from Civil Appeal No. 20 of 2021 is also denied. While a pending appeal exists, the balance of convenience, heavily influenced by the Applicant's prior consent to pay costs flowing from the same underlying judgment, militates against further delaying the Respondents from enjoying the full fruits of their successful judgment. Granting a stay would cause undue hardship to the Respondents and perpetuate the Applicant's attempts to indefinitely frustrate the execution process, without a compelling, legally substantiated reason to set aside the implications of his own prior agreement. - 67. The previous Ruling in Miscellaneous Application No. 16 of 2025 awarded costs to the Respondents. However, given the finding in Issue 1 that there was an error apparent on the face of the record in the dismissal of that Application (specifically regarding the oversight of Execution Application No. 002 of 2025), it would be unjust for the Respondents to retain those costs. The Applicant was entitled to have all relevant evidence considered in the initial


determination of Miscellaneous Application No. 16 of 2025. While he has not ultimately succeeded in obtaining a stay of execution for eviction, the very premise of the original dismissal (lack of proof of execution in Civil Appeal No. 20 of 2021) has been rectified by this review. Therefore, the award of costs to the Respondents in Miscellaneous Application No. 16 of 2025 is hereby set aside. For the present Application (Miscellaneous Application No. 29 of 2025), since the Applicant has succeeded in obtaining a review but failed on the substantive prayers for a stay of execution, it is equitable that each party bears its own costs for this Application.

## **Miscellaneous Application No. 30 of 2025 (Interim Order)**:

68. I note that on 28th March 2025, the Applicant filed the instant Application, as well as Miscellaneous Application No. 30 of 2025 seeking an interim order for stay of execution pending the determination of this main Application (Miscellaneous Application No. 29 of 2025). Both Applications came up for hearing on 28th April 2025, and since they were heard on the same day, I found it appropriate and time efficient to determine the main Application (Miscellaneous Application No. 29 of 2025) first, as a ruling on the substantive issues would inherently resolve the need for an interim measure. The purpose of an interim order is to preserve the status quo pending the final determination of the substantive application. Since this Court has now rendered a final Ruling on Miscellaneous Application No. 29 of 2025, which


directly addresses the substantive prayers for a stay of execution, the interim application has become otiose or academic. There is no longer a pending substantive Application for which an interim order is required. As held in cases like **Hwang Sung Industries Ltd vs. Tajdin Hussein & 2 Others, S. C. Civil Application No. 19 of 2008**, an interim order is granted to preserve the status quo until the main Application is heard and determined. Once the main application is determined, the interim order (or the application for it) ceases to have effect or purpose. Therefore, Miscellaneous Application No. 30 of 2025 is effectively resolved by this Ruling.

69. Therefore, I give the following Orders:

- **(1) The Ruling and Orders arising from Miscellaneous Application No. 16 of 2025 are hereby reviewed and set aside to the extent of the error on the face of the court's record that there had been no proof of a pending execution regarding Civil Appeal No. 20 of 2021.** - **(2) The award of costs to the Respondents in Miscellaneous Application No. 16 of 2025 is hereby set aside.** - **(3) The prayer for a stay of execution of the orders of Court in Civil Appeal No. 20 of 2021, including the eviction of the Applicant from the suit land, is denied.**


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- **(4) The prayer for a stay of execution concerning the payment of taxed costs in Execution Application No. 02 of 2025 and Execution Application No. 03 of 2025, and any related arrest and detention, is denied.** - **(5) Miscellaneous Application No. 30 of 2025, seeking an interim order, is hereby closed as it has been rendered otiose by the determination of this substantive Application.** - **(6) Each party shall bear its own costs for this Application.**

I so Order.

**Dated at Fort Portal this 9th day of July 2025**


Vincent Wagona

**High Court Judge**

**FORTPORTAL**

**Ruling delivered on 14th July 2025.**