Kategaya v Sebaliga & 2 Others (Civil Application 449 of 2024) [2025] UGCA 28 (29 January 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPLICATION NO. 0449 OF 2024

(Arising from Court of Appeal Civil Appeal No. 198 of 2020)

[Arising out of High Court Civil Appeal No. 634 of 2007]

**BETWEEN**

JOAN BETSIMBIRE KATEGAYA:::::::::::::::::::::::::::::::::::

AND

# 1. JACOB SEBALIGA

#### 15 2. AMOS NYEZI

$\mathsf{S}$

# 3. COMMISSIONER LAND REGISTRATION::::::::::::::::::::::::::::::::::::

MR. CHEBORION BARISHAKI, JA

(SINGLE JUSTICE)

#### **RULING**

This application seeks for an order of stay of execution of the judgment and 20 decree in Civil Suit No.634 of 2007 and costs of the application be provided for. The application is brought by way of Notice of Motion under Order 43 R 4(2), (3) (5) and Rule 5 of the Civil Procedure Rules and section 98 of the Civil Procedure Act.

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# 5 Background

The background to the application as set out in the affidavit in support of the application. The applicant avers that she is a bonafide occupant and owner of the suit iand where she has resided since she purchased the same from the 2nd respondent, Amos Nzeyi, in part exchange for her residential property located in Kololo for her benefit and that of her fam,y. That she resides on that land with her family and obtained a 99 year rease from the mailo land owner and the same is still subsisting.

15 on 23rd september, 201g, judgment was entered in favor of the respondents in Civil Suit No.634 of 2OOZ. Court ordered that the applicant,s lease be cancelled and the applicant be evicted from the suit land. The appricant filed civil Application No.289 of 2or9 and Miscellaneous Application No.722 of 2023in this Court but the same were dismissed. The applicant filed Miscellaneous Appiication No.2g9 of 2or9 for stay of execution in the High court the High court in which he claimed that the court set unjust and unreasonable terms for example payment of UGX 5O,OOO,0OO/= as security for costs within 3 months from the date of delivery of the ruiing.

In rep1y, the respondents through an afrrdavit by John Lwaranda hording powers of Attorney stated that the applicant was not a bonafide occupant as she bought the suit property comprised in LRV 453 Forio 2 plot 4g0 Kyadondo Blok 244 at Muyenga and extended the rease frauduientiy which rease was cancelled by the learned trial Judge in HCCS No.634 0f 2007. That the lease has since been cancelled by the Registrar of ritles in accordance with the 2lPage

- decree. Further that the applicant indeed was granted a stay of execution by $\mathsf{S}$ consent in HCMA No.1274 of 2022 for UGX 50,000,000/= a sum that was less than the decretal sum and costs of UGX 97,970,000/ $=$ and the applicant did not fulfill the terms of the order for stay of execution nor did she disagree to the consent judgment. - The grounds of the application were stated in the Notice of Motion and in the 10 affidavit deponed by Ms. Joan Betsimbire Kategaya, dated 5th August, 2024 briefly *stating that*:

2. That I am a bonafide occupant and owner of the suit land where I have resided since I purchased the same from the $2^{nd}$ respondent in part exchange for my residential property located at Kololo for my benefit and that of my family.

3. That I reside on the suit land with my family as a widower, a single mother and I $\frac{1}{2}$ derive my sustenance from the suit land.

4. That I had obtained a 99 year lease for the suit land from the mailo land owner and the same is still subsisting.

5. That on the $23^{rd}$ day of September, 2018 the High Court delivered judgment against 20 me in Civil Suit No.634 of 2007 and ordered that my lease should be cancelled and that I should be evicted from the suit land.

6. That on the $23rd$ day of September, 2019, having been aggrieved and dissatisfied with the Judgment of Court, I filed a notice of appeal and requested for a copy of the

proceedings from the High Court (Land Division) pending appeal. 25 7. The applicant filed Civil Application No.289 of 2019 and Miscellaneous Application No.722 of 2023 in this Court, but the same were dismissed by this Court, as the Court stated that they did not provide evidence of an imminent threat against the applicant. 8. That the applicant filed an application for stay of execution in the trial Court vide Miscellaneous Application No.289 of 2019 but the trial Court set unjust and 30

unreasonable terms i.e payment of UGX 50,000,000/= as security for costs within 3 $\mathsf{S}$ months from the date of delivery of the ruling.

9. That the respondents have a decree authorizing them to cancel my leasehold title and to evict me from the suit land and my home.

10. That the suit property is my home and only source of sustenance for me and my 10 family.

11. That however the 1st and $2^{nd}$ respondent have continued to force me out of my property with threats from third parties and I had to beef up my security as a I wait for the hearing and final disposal of the Appeal I filed in this Court.

- 12. That the 1st respondent has recently filed Civil Application No.3412 of 2023 before the High Court (Land Division) seeking among others for consequential orders among 15 others for an order to evict me out of my residential house found on the suit land. 13. That I will suffer heavy irreparable loss and damage which cannot be atoned in damages if $I$ am evicted from my home and land before my appeal is heard and determined. - 14. That the appeal shall be rendered nugatory if the stay of execution is not granted. 20 15. The application has been made without undue delay.

The 1st Respondent filed an affidavit in reply sworn on 6th November 2024 through his attorney John Lwalanda who has powers of attorney, in summary

- the 1st Respondent stated that: 25 - 1. That I have been involved in the HCCS No.634 of 2007 right from the start and are fully conversant with all matters arising there from. - 2. That I have read the affidavit of the applicant in the above matter and wish to *reply as hereunder;* - 3. That the Application and accompanying affidavit are only intended to abuse the court process and delay the $1$ st respondent's fruits of the judgement. - 4. That the Applicant is not a bonafide occupant as she bought the suit property comprised in LRV 453 Folio 2 Plot 480 Kyandondo Block 244 at Muyenga and extended the lease fraudulently which lease was cancelled by the judgement in the above case. - 5. That the lease has since been cancelled by the registrar of Titles in accordance with the decree. (a copy of the title is herein marked "SEK 2").

- 6. That in reply to paragraph 8, the applicant indeed was granted a stay of $\cdot$ 5 execution by consent in HCMA NO. $1274/2022$ for Ug Shs 50,000,000/= (fifty million shillings) a sum that was less than the decretal sum and costs of Ug Shs $97,970,000/$ = (Ninety-seven million nine hundred seventy million shillings). (A Copy of the ruling and the order are attached as marked SEK $3\& 4$ ). - 7. That the applicant did not fulfil the terms of the order for stay of execution nor did she raise any complaint at the time of entering the consent judgement. - 8. That I am advised by my lawyers that the Applicant having had benefit of the stay of execution granted by the high court and not fulfilled the terms as set out cannot come to this honourable court and seek the same orders after almost 12 months to date.

#### **Representation**

At the hearing of the application, the applicant was represented by Mr. Emmanuel Muwonge while Mr. Kato Sekabanja appeared for the 1st 20 respondent.

Counsel for both parties filed written submissions and the same were adopted as their legal arguments.

## Applicant's submissions.

- Counsel submitted that the grounds of the application were contained in the $25$ Notice of Motion briefly stating that the applicant being dissatisfied with the judgment and orders of the High Court filed an appeal and a letter requesting for a typed record of proceedings. She then filed an application for stay of execution in the High Court which was granted with stringent terms. Counsel - added that the appeal pending before this honorable Court was not frivolous 30 and vexatious but has a high likelihood of success. That if evicted, the applicant will suffer irretrievable and substantial loss because she will be

5 deprived of her right to own property during pendency and determination of the Appeal.

counsel further submitted that the applicant had satisfied alr the conditions necessary for the grant of stay of execution. That the appiicant had filed a substantive apprication which is pending hearing before this court and that there was a serious threat of execution. He added that the appiicant filed a Notice of Appeal in this court on 23rd day of September 2019 and requested for a copy of the proceedings and the appeal is waiting be fixed for hearing. Further that a substantive apprication was filed in the High court vide Miscellaneous Application No. 289 of 2019 arising from civil Suit No. 634 of 2007, which was graated but with excessive terms. He reried on zubeda Mohqmmed and, anor V Latla Kaka Wallla and Another, Suprem,- Court Cit ReJerence No'7 oJ 2o76 for the conditions that the applicant must satisfy to grant an

interim order.

Counsei for the applicant contended that the respondents had a decree authorizing them to cancei the reasehord title of the applicant and have her evicted out of the suit land and the applicant's home. That the applicant w I lose her home and entire fam y's rivelihood if this order is not granted. The damage will be irreparabre. He added that the appear will also be rendered nugatory if the stay of execution is not granted. counsel concluded with a 20

prayer that execution be stayed pending the determination ofthe appeal. 25

### 1.t Respondents submissions.

counsel for the 1"t respondent submitted that the appricant was confused whether this was a substantive application for stay or an application for an

6lPage 5 interim order. That the authorities cited in respect of interim orders were not relevant because this is the substantive apprication. He added that the question for the court to decide was; vrhether where an application for stay of execution has been granted by the High Court, the same Applicant can move the court of Appeal to grant the simiiar orders simply because he or she considered the terms of the High Court too stringent. 10

counsel wondered whether the appricant was asking this court to review its orders o or those of the High court was valid step. That the order as attached to the 1st Respondent's affidavit in repry as annexure "sEK 4" was a consent order entered in the presence ofthe appricant. The appricant did not raise any complaint then nor in the 60 days she was required to comply with it. That in the circumstances the present appiication amounted to abuse of the court process' counsel relied on parambot breuteries Ltd. (rn Receluership v standard chantered Bank (u) Ltd. & Anor court of Appear Mtsc Appltcafion No. 265of 2oTawhere His Lordship owiny Dorlo DCJ (as he then was) ruled that

where the high court has granted an injunction the party cannot appeal against that injunction and seek stay of the same injunction. That such application was incurably defective. counser prayed that this application is dismissed with costs. 20

## 25 Submissions in reJoinder

The Applicant reiterated her eariier submissions and prayers and added that the applicant was in personar and physical possessioh of the suit property where she had rived with her family as a single mother and Court rejecting to grant this Application wourd read to substantial injury to the Appiicant and

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5 may aiso cause irreparable injury. He added that the appeal had a high likelihood of success since she had lawfurly extended her lease on the suit property and landiord's testimony was never catled during trial. The applicant prayed that this honourable court grants the Applicant a stay of execution pending the hearing and linar disposal ofjudgement in HCCS No.634 of 2oor.

## Courtts consideration

I have carefully considered the Notice of Motion, the affidavit in support, the annextures thereto as well as the 1aw and authorities relied upon. I have also considered the submissions of counsel on either side.

15 The jurisdiction of this court to grant a stay of execution is set out in Rule 6(2) (b) of the Rules of this Court. The said Rule provides thus

Rule 6(2) (b) provides that:

"Subject to sub-rule (1), the institution of an appeal shall not operate to suspend anA sentence or stoA exeqltion but the Court maa in ang ciuil proceedings, tuhere a notice of appeal has been todged- in accord.ance uitlt rure 76 of these Rules, order a stag of execution, an injunction, or a staA of proceedings on such terrLs as the court mag think just".

Rule 2 (2) of the Rules of this Court provide thus:

"Nothing in these Rutes sha be taken to timit or otheru.tise affect the inherent pouter of the court, or the High court, to make such ord.ers as mag be necessary for attaining the ends of iustice or to preuent abuse of the process of any such court, and that power shall ertend to setting asid.e judgments u-thich haue been proued null and uoid afier tlLey haue been passed, and shall be exercised. to preuent abuse of the process of any court caused. bg d.elag". -)(

The Supreme Court in Hon. Theod,ore Sseklkubo & Others V The Attomeg General and Another, constit'tionqr Application No. G of 2o7s crearry raid, 30

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f down the principles upon which this court may grant a stay of execution as follows:

> "(1) TlLe application must establish that his appeal hrLs a liketihood of success,. or a pima facie case of his ight to appeal

10 (2) It must arso be established that the appricant uifi suffer ineparabre damage or that the appeal uill be rendered nugatory if a stag i\_s not granted..

> (3) If I and 2 aboue has not been estabrisrted., court must consid.er uhere the balance of conuenience lies.

(4) That the applicant must also establish that the application u.tas instituted uithout detag.', 15

Inote that this application seeks an order of stay of execution of the judgment and Decree in civil Suit No.634 of 2oor however counsel for the applicant,s arguments and authorities were based on an apprication for interim stay of execution. with the interest of attaining the ends of justice in mind, I wil1

proceed to determine the application on its merits albeit the applicants short 20 comlng.

counsel for the respondent submitted that tle question for this court to decide was; where an apprication for stay of execution is granted by the High court, can the same applicant move this court to grant the same orders

25 simply because he or she considered the terms of the High court stringent? The evidence on record indicates that the High court Land Division delivered judgment in civil Suit No.634 of 2ooz on the 22nd day of August, 2019 as per the Decree marked as annexture "E". It was ordered and decreed that the Registrar of ritles cancels Instrument No.3666gg extending the Lease in Land 30 comprised in LRV453 Folio 2, plot 4go at Muyenga, secondly, that the Lease

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- 5 was only valid up to 30ttr December, 2007, furthermore that the defendants pav the plaintiff ucx 5o,o0o,oo0/= (Fiftv Milion Shillings only) as punitive damages, that the third party shall not be heid liable for indemnifying the 1"t defendant and lastly that the defendant pays the praintiff costs of the suit. - The appiicant averred under paragraph 7 ofher affidavit in support that, she fi1ed civil Application No.289 of 2or9 and Misceiraneous Applicat ion No.722 of 2023 in this Court, but the same were dismissed by this Court. The applicant did not annex civil Application No.2g9 of 2019. However, I have looked at civil Apptication No.722 of 2023 and I note that Dr. Asa Mugenyi, 10 - JA stated as follow; 15

"I notice that Misc. Application 2gg of 2o19 the substantiue apprication for stag of execution u.tas dismissed bg tLte Court of Appeal (Justice Kasule) on 2na December, 2O19. Therefore, there is no substantiue application for stag of exeantion pending. Court cannot grant an interim ord.er uLhere there is no substantiue application pending. It ceases being an inteim measurement. secondlg, the applicant has not shoun ang imminent threat of execution. This application tuas filed in 2023. She fited. an application for stag of execution in the High court uhere stringent terrrLs as one a eged. were mad-e. ?he High court bg granting staA of exeattion the imminent threat ceased.. She had, to comply u.tith the terms set, uthich she did\_ not.',

Iwant to believe that the applicant must have made a mistake in paragraph 7of her affidavit in support of the motion by referring to civ Appiication No.289 of 2ol9 instead of Miscerlaneous Application No.288 of 2019 because Dr' Asa Mugenyi, JA in the above excerpt refers to Miscelaneous Application No.288 of 2079 as the substantive apprication that was heard and determined by Kasule, JA (as he then was).

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- 5 The applicant averred in paragraph 8 of affidavit in support of the motion that she fi1ed Miscellaneous Application No.2g9 of 2oL9 for stay of execution in the High court but the trial court set unjust and unreasonable terms i.e payment of UGX 50,000,000/- as security for costs within three months from the date of delivery of the ruling. - I have already stated that in the Decree marked as annexture "E,', one of the orders was that the defendants pay the plaintiff UGX 5O,OOO,O0O/= (Fifty Miilion Shillings Only) as punitive damages. 10

From the background of this apprication, it is apparent that the applicant instead of complying with the court order in civil Suit No.634 of 2007 chose

to Iile numerous applications both in the High court and in this court. Section 82 ofthe Civil Procedure Act CAp 2g2 provides that; 15

'Ang person consideing himself or herself aggieued"-

Bg a decree or order from which an appeal is altotted bg this Act, but from uthich no appeal ha.s been preferred\_; or

By a decree or order from which no appeal is allowed bg this Act, may applg for a reuietu of iudgment to the Coutl ,thich pa,ssed the d\_ecree or made tLrc order, and the Court mag make such ord\_er on the d.ecree or ord.er as the Court considers fit." 20

In the case of Amrit Gogar v Harichand Gogal and 3 others, c:rv Apprtcation

No.7o9 of 2oo4 which was cited with approval in the case Emmanuer Kato v lWuganJd. Mbabali Court of Appeal Ciall Appllcation lVo.34S o;f 2olg, Court stated that 25

"A court order is a court ord.er. It must be obeged as ord.ered unress set aside or uaies. It is not a mere technicalitg that can be ignored. If u\_te alloued court orders to be ignored. taith impunitg, this would destroy the authoity of judicial orders tuhich is the heart of all jud\_icial sysfems..

5 If the applicant was aggrieved with what she refers to as ,,unjust and unreasonabie terms" in the decree issued by the High court, she should have appealed against it in this court or sought a review of the same by the court which issued it. Resorting to frling the many appiications in various courts over the same matter amounts to forum shoping and an abuse of court 10 process.

This court must view with disfavor any attempt by a ritigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmry. A litigant who takes unwarranted riberty with the truth or with the procedure of the court should be left in no doubt about the consequences to folow. others should not venture along the same path in the hope or on a mispiaced expectation of judicial leniency. See

Dngandeo Saba;lt Natk V pradnga prakash Khadekdr (2O1nS SCC 496.

I find this application without merit and dismissed it with costs to the respondent.

20 I so order

,t( Dated at Kampala this day o borion Barishaki JUSTICE OF APPEAL 2025 >')