Katalihwa v Kisoke and Another (Miscellaneous Application 45 of 2024) [2024] UGHC 1042 (17 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **MISC. APPLICATION NO. 45 OF 2024 (ARISING FROM HC Civil Appeal No. 20 of 2021 & CIVIL SUIT NO. 008 OF 2010)** 6 **KATALIHWA RUHUNGA ::::::::::::::::::::::::::::::::::::::::: APPLICANT**

# **VERSUS**

# **1. ALICE KISOKE**

# 9 **2. KISEMBO EDSON ::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA RULING**

### 12 **Introduction:**

The applicant seeks an order for stay of execution of the decree in High Court Civil Appeal No. 20 of 2021 pending the determination of the appeal in the Court of

15 Appeal and costs of taking out the application.

# **Grounds of the Application:**

The grounds of the application are detailed in the affidavit of Mr. Katalihwa where 18 he stated in brief thus;

- 1. The applicant being aggrieved by the judgment in Civil Appeal No. 20 of 2021 which was decided in favour of the Respondents has commenced an - 21 appeal to the Court of appeal by lodging a notice of appeal and a letter requesting for certified copies of the record of proceedings. - 2. Under the decree in Civil Appeal No. 20 of 2021, the applicant was ordered - to be evicted after three months which expire on 18 24 th August 2024 and if the


said period expires, there is a high risk of him being evicted from the suit land.

- 3 3. The respondents have already made attempts to illegally evict the applicant's tenants on the suit land and are threatening to destroy their crops thereon. A complaint was lodged to that effect before the L. C. I chairperson and copied 6 to all local authorities. - 4. The balance of convenience favours the grant of stay of the execution orders. The applicant is prepared to abide by any terms set by court and is willing to 9 furnish reasonable security for due performance of the decree. - 5. In the event the application is denied, the pending appeal process to the Court of Appeal would be in futility and as a result the applicant would 12 suffer substantial and irreparable loss since the appeal shall be rendered nugatory. It is fair and just that the application is granted.

#### **Reply of the respondent:**

- 15 In opposition of the grant of the application, the respondents jointly deposed as follows: - (1)The current application is wastage of court's time, premature, misconceived 18 and ought to be rejected with costs. The applicant is still in possession of the suit land and the respondents have never commenced the execution process and thus there is no threat of eviction against the applicant from the suit 21 land. - (2)No irreparable loss or damage shall be suffered by the applicant save if it is self-inflicted. The alleged illegal execution process is not adequately 24 supported by evidence; any person could go to the area chairperson and have a compliant like one presented by the applicant registered.


- (3)The respondents being the successful parties in the appeal determined by this court, has nothing to do with any threat posed by the applicant and no such 3 threat was reported at police.

(4)The balance of convenience does not tilt in favour of the applicant because he was still in possession per the execution which was ordered by His 6 Worship Babu Waiswa in Land Suit No. 08 of 2016. Should court deem it proper to grant a stay, the same ought to be conditioned upon the applicant depositing a sumof shs100,000,000/= as security for due performance of the 9 decree.

#### **Rejoinder of the Applicant:**

In rejoinder, Mr. Katalihwa deponed as follows:

12 (1)Since delivery of the judgment, the respondents have threatened te applicant and his workers with pre-mature eviction which compelled some workers to run away. The applicant always reported to police and L. C's who constantly 15 advised him the matter was of a civil nature and ought to be decided by court.

(2)The intended appeal is based on good cause, has merit and is bound to 18 succeed.

- (3)The applicant intends to make an application to tender fresh evidence which was negligently left out by his previous lawyers since part of the suit land 21 was recovered from Kisembo who surrendered any claim therein. - (4)The applicant was aware that the respondents intended to have him evicted, expeditiously sell off the land to third parties and disappear, which would 24 render his appeal nugatory. - **3 |** P a g e

- (5)The wording of the decree was mandatory that after three months he was to be evicted from the suit land. The respondents have relied on the said orders 3 to prematurely execute the same - (6)The combined effect of the aforesaid orders of court, the real threat of cutting his crops, running away of his tenants are a manifestation of an 6 imminent threat. - **Legal representation and hearing:**

*Mr. Ndibarema Mwebesa* appeared for the applicant while *Mr. Bikorwomwe* 9 *Crispus* appeared for the Respondents. A schedule to file written submissions was issued out and both counsel complied. I have carefully digested the submissions of both counsel.

- 12 **Issue:** - **(1)Whether the applicant has demonstrated sufficient cause warranting grant of an order of stay of execution of the orders of this court in civil**

15 **appeal no. 20 of 2021.**

**(2)What remedies are proper in the circumstances?**

**Consideration of the issues:**

- 18 **Issue No. 1: Whether the applicant has demonstrated sufficient cause warranting grant of an order of stay of execution of the orders of this court in Civil Appeal No. 20 of 2021.** - 21 In order for one to succeed on an application for stay of execution, he or she must prove the following grounds:

(a) Proof of lodgment of an appeal

24 (b)There is serious threat of execution of the decree appealed against.


(c) Substantial loss my result to the applicant unless the order for stay is made.

(d)Refusal to grant would inflict greater hardship than it would avoid.

3 (e) Deposit of security for due performance of the decree or costs.

(f) Application was filed without unreasonable delay.

(See: *MusiitwaKyazze - Vs - Eunice Busingye, Civil Application No. 18 of 1990,* 6 *Dr. Ahmed Muhammed Kisule Vs. Greenland Bank (in Liquidation), Supreme Court Civil Application No. 7 of 2010,In Kyambogo University Vs. Prof. Isiah OmoloNdiege, C. A. C. A No. 341 of 2013).*

#### 9 *(a)Proof of Lodgment of an Appeal.*

Mr. Ndibarema Learned counsel for the applicant submitted that the applicant lodged a notice of appeal against the decision of this court on 2 nd May 2024 within

- 12 the 14 days as provided for under Rules 78 (2) of the Judicature (Court of Appeal) Rules. He also invited me to the decision of *Abid Alarm v Windriver Logistics Ltd, Misc. Application No. 219 of 2019* where court noted that lodging a notice of 15 appeal and requesting for a typed record of proceedings is sufficient proof of lodgment of an appeal against the decision of the High Court. He thus prayed court to find that this ground was proved. Mr. Bikorwomwe did not counter the 18 submissions of Mr. Ndibarema on this ground. - It is indeed settled law that an appeal against a decision of the High Court to the Court of Appeal is commenced by way of a notice of appeal. This is clearly stated - 21 under Rule 76(1) of the Judicature (Court of Appeal Rules) Directions 2000 thus; "*Any person who desires to appeal to the court shall give notice in writing, which shall be lodged in duplicate with the registrar of the High Court."*Therefore, a 24 notice of appeal commences an appeal against the decision of the High Court. This


was emphasized by *Mwangusya JSC in Supreme Court Criminal Application No. 08 of 2019, Uganda v Ntambi Vincent* where it was observed that a notice of

- 3 appeal is the first step an intending appellant must make in the process of appealing. Under Rules 76(2), the said appeal must be lodged within 14 days from the date the decision was made. - 6 In the present application, the judgment in Civil Appeal No. 20 of 2021 was delivered by this court on 19th April 2024 and a notice of appeal was lodged on 2 nd May 2024 within 14 days from the date the decision was delivered. A copy of the - notice was served upon the Respondents' counsel on 9 9 th May 2024. A copy of the same notice was attached as annexure 'A' to the motion. The applicant also filed a letter requesting for a typed record of proceedings on 2nd May 2024 and served a - 12 copy upon the respondents' counsel. The applicant proved that he lodged an appeal against the decision of this court and thus proved this ground.

#### *(b)That there is a serious threat of execution of the decree or order:*

15 Mr. Ndibarema submitted that the applicant demonstrated under paragraphs 4,5,6(a), 6(b) and 11 that after a judgment was delivered in favour of the respondents, they resorted to illegal means to execute the same including 18 threatening the tenants of the applicant on the land. This is supported by annexure 'C' which is a complaint. He asserted that the import of a stay was explained in *Wilson v Church (1879) 12 Ch. D 454* thus; "As a matter of practice, where an 21 unsuccessful party is exercising an unrestricted right of appeal, it is the duty of the Court in ordinary cases to make such order for staying proceedings in the judgment appealed from as will prevent the appeal if successful from being rendered 24 nugatory." He thus asserted that the applicant proved this ground.


Mr. Ndibarema's assertions were countered by Mr. Bikorwomwe, learned counsel for the Respondent who asserted that there was no threat of execution to warrant a

- 3 stay. To Mr. Bikorwomwe, a threat exists only if an application for execution of the decree is issued. It was pointed out that in the current suit the respondents had not commenced any execution process. He thus contended that the application at - 6 hand was premised on speculation and court cannot invoke its discretion on mere intuition that execution shall be commenced. He invited me to the case of *Osman Kassim Ramathan v Centenary Bottling Company Ltd, HCMA No. 35 of 2019* - 9 where it was observed that execution is a process and not an event. The respondents had not commenced any process leading to execution. He thus passionately asserted that the application was premature and ought to be rejected. - 12 In rejoinder, Mr. Ndibarema maintained that the acts of the respondent posed a serious threat of execution to wit; attempting to evict his tenants and threatening his tenants. Further that the wording of the decree was to the effect that after three 15 months, the applicant was to be evicted.

#### **Decision:**

It is now settled that an order of stay of execution cannot be granted as a matter of 18 course or based on one's speculation that execution may be carried out. Considering the significant effect of a stay on a decree of court and the fear of denying a successful party the fruits of litigation, a stay is only granted where there

- 21 is a serious threat of execution. The threat should be visible, it should not require deep lenses for court to see or feel it and neither should it require court examining different legal principles and maxims of equity to ascertain the same. It should be - 24 seen without any struggle neither should it be premised on speculation.


In the present suit, the respondents were successful in Civil Appeal No. 22 of 2021 after they were evicted from the suit land arising from a judgment by Kyejojo

- 3 Chief's Court in Civil Suit No. 08 of 2010. In the decree of this court, Court set aside the judgment and orders of the trial court and further order that; "*The Respondent is hereby ordered to vacate from the suit land within 3 months from* - 6 *the date of delivery of this judgment in default of which an eviction order herewith issued shall be executed against the Respondent*."

Whereas an order of eviction was indeed issued against the applicant to commence 9 after three months from the date of the judgment, enforcement or implementation of the same requires commencement of an execution process. Orders of court are only implemented through execution which is a process. In the current suit, the

- 12 respondents have never taken any steps to commence execution. Further, the current application was filed before the expiry of the 3 months stated in the decree. It is thus plausible to conclude as submitted by Mr. Bikorwomwe that it was based - 15 on the anticipation that the respondent would commence execution after three months which has never been commenced. It thus remains speculative as to whether the respondents will await the determination of the appeal or may choose - 18 to commence execution. Court would delve into speculation if it takes the course suggested by Mr. Ndibarema that the respondent would commence execution after three months in the absence of any actual execution process commenced. The fear - 21 grounded in speculative anticipation that execution may be commenced is in my evaluation not sufficient to constitute a threat of execution.

The written complaint dated 23rd May 2024, to the LCs by the tenants of the 24 applicant, who were allegedly cultivating in the land of the applicant, without more, is insufficient to prove the existence of any threat of eviction, as there is no


evidence that it was verified through any investigation. If indeed the farmers were threatened, they would have reported the matter to police and those who were

- 3 threatening them apprehended following an investigation. Further, there was no evidence in form of an affidavit from any of those farmers confirming the complaint. - 6 I am not convinced on the basis of the evidence presented by the applicant that there is a serious threat of execution. The applicant filed the application merely under the fear driven by speculation, that execution may be commenced. - 9 Therefore, the applicant failed to prove this ground. I therefore agree with Mr. Bikorwomwe that this application was prematurely and it fails. The application is hereby dismissed with costs awarded to the respondents. - 12 It is so ordered.


Vincent Wagona

15 **High Court Judge FORTPORTAL DATE: 17/10/2024**