Katereine v Asiimwe (Civil Application 573 of 2024) [2025] UGCA 47 (13 February 2025)

Full Case Text

# 5 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA crvtL APPUCATTON NO.573 0F 2024 (ARTSTNG FROM CrVrL AppEAL NO.837 OF 20241

10 KATEREINE DENNIS APPLICANT

VERSUS

ASIIMWE DORCUS RESPONDENT

### BEFORE HON. JUSTICE MOSES KAZIBWE KAWUMI

15 (Sitting as a single Justice)

## RULING

The Applicant filed a Notice of Motion with a supporting affidavit under Rules 6 (2) (b) and 43 of the Court of Appeal Rules and Section 98 of the Civil Procedure Act for orders thaU-

- 1. Execution of the ex-parte judgment and decree and orders of the High Court in Divorce Cause No.112 of 2OL6 and Miscellaneous Application No.983 of 2022 be stayed untir th,' final determination of the Applicant's Appeal against the said decree and orders. - 2. Costs of and incidental to this application abide the outcome of the appeal.

#### 5 Background

The background to the application as set out in the affidavit in support of the application is that the Applicant and the Respondent developed issues in their marriage leading to the filing of Divorce Cause No. LL2 of 2OL6 by the Respondent. On 1st December 2020 the Applicant's Counsel cross examined the Respondent /Petitioner and the hearing was adjourned for further cross examination. When the matter came up for further hearing on 30th August 202L the Applicant was informed that the trial Judge was indisposed.

- 15 The Applicant claims that he later heard from his Lawyer that the Divorce Cause had been heard and determined in their absence. The Applicant filed Miscellaneous Application No.983 of 2022 to set aside the ex-parte judgment but the Application was dismissed. - 20 The Applicant states in the Affidavit that a Notice of Appeal against both the ex-parte judgement and decree in Divorce Cause No.112 of 20t6 and the ruling in Application No.983 of 2022 was filed. Counsel further applied for the record of proceedings in both Divorce Cause No.112 of 20L6 and in Miscellaneous Application No.983 of 2022.

The Applicant contends that the Respondent has taxed the bill of costs, that there is imminent danger of execution of both the de:ree and orders in the respective matters heard by the High Court anci th',' Appeal filed in this court stands to be rendered nugatory. lt is further contended that the Appeal has a very high chance of success.

The Respondent on her part opposed the application contending that the Applicant's Counsel cross examined her in the Divorce Cause on lst December 2020.

5 The cause was fixed for the hearing of her two witnesses on 30th August 202L. The Trial Judge was however out of station on that late prompting her Lawyer to write to court seeking another date.

The hearing was fixed f or 22nd March 2022. The Respondent informed the Applicant of the date upon which he advised her to effect service on her Lawyers M/S Brown Kahara &Co. Advocates. Service of the hearing notice was effected on Counsel as advised by the Applicant but none of two appeared for the hearing which proceeded in their absence. 10

It is further contended by the Respondent that the Applicant has never paid any maintenance for his children and is enjoying uninterrupted use of the matrimonial home. She contends that the Applicant wil! not suffer any irreparable loss if the application is denied.

ln the Affidavit filed in rejoinder on 23'd January 2025, the Respondent attributes the non -attendance of court to his Cou rsel. The Respondent further contends that the Applicant has fixed the bills of costs for taxation and sought to have the Decree Absolute endorsed by the court which would render the Appeal nugatory.

### Representation

The Applicant was represented liy Mr. Benson Tusasiirwe. The Respondent and her Lawyer were not in court. Submissions filed by the parties were adopted as their arguments for the determinatir,n of the application.

# 5 Consideration of the Application

I have perused the application and the filed affidavits. I also perused the submissions and the authorities supplied by Counsel which have been taken into account in the determination of the application.

The mandate of this court to order for stay of execution of decrees is derived from Rule 6(2Xb) of the Judicature (Court of Appeal Rules) Directions. Sl 13-10. The Rule provides that :- 10

> "Subject to sub rule (L) of this rule, the institution of on oppeal shall not operote to suspend ony sentence or to stoy execution, but the court may---

(b) in any civil proceedings, where o notice of oppeal has been lodged in occordonce with rule 76 of these Rules, order a stoy of execution, on injunction, or o stoy of proceedings on such terms as the court may think just."

ln Theodore Ssekikubo & 3 others V The Attorney General & 4 others [2013] UGSC 2L the Supreme Court re-stated the principles to consider before granting an order of stay of execution pending appeal. The principles are :-

i) lt must be estoblished thot the opplicant will suffer irrepot tble domage or thot the oppeol will be rendered nugatory if o stoy ts not granted.

ii) The application must establish thot the appeal has a likelihood of success; or o prima facie cose of his right to appeal.

5 iii)lf (i) and (ii) above have not been estoblished, the court must consider where the bolonce of convenience lies.

iv)Thot the applicant must estoblish that the opplication wos instituted without deloy.

I will be guided by the above principles to determine whether the Applicant has met the conditions necessary for the grant of the sought relief. L0

# 1. Prima facie case with a likelihood of success

- The Applicant contends that his appeal has a likelihood of success considering that he was condemned unheard owing to the diiatory conduct of his then advocate in a serious matter relating to divorce, custody, access to children and family property claiming he will be highly prejudiced. 15 - The Respondent on the other hand contends that the Appeal against the Ruling in Miscellaneous Application No.983 of 2022 does not have any chances of success. The Respondent further contends rhat granting the application will be at the expense of the children's welfa re. 20 - I find it imperative to note that the Applicant did not file an appeal against the Decree Divorce Cause No.112 of 2016. The instant application arises from an appea! against the order dismissing his application to set aside the ex-parte proceedings in Divorce Cause No. LL2 of 2016. Counsel however sought to stay execution in 'roth matters. 25 30

- 5 Iam alive to the requirement for this court not to delve into the merits of the appeal, which is reserved for the full bench. The mandate of the court in applications as the present one is limited to determining whether the appeal is not frivolous or vexatious. - The Trial court in Miscellaneous Application No.938 of 2020 dismi:sed the application to set aside the ex-parte decree in Divorce Cause No. LtZ of 20L6 for the reason that the Applicant/respondent failed to furnish sufficient cause for non -attendance of court yet his Lawyer was properly served. The Applicant contended it was the mistake of Counsel and he should not be penalized for Counsel's mistake. 10 15

A perusal of the application however shows no additional evidence to justify whether sufficient cause had been established before the trial court for this court to form an opinion to the effect that there is a likelihood of success of the appeal. Apart from the Notice of Appeal, the Applicant did not furnish court with the Memorandum of Appeal or at least a draft copy of the same to enable court make an opinion of what to expect on appeal.

I hold the view that any allegation of a mistake by counsel has to be furnished by Counsel himself and no such evidence was furnished to the High Court and even in support of this application. lt is alsc not denied that it was the Applicant who directed the Respondent to have the hearing Notice served on the same Counse! implying that he was also aware of the hearing date. 25 30

5 An Applicant who merely states that his/her appeal has a Iikelihood of success cannot be taken to have furnished sufficient grouncs to have this condition determined in his favour. lfind the observation cf the court in Osman Kassim V Century Bottling Company Limited, Supreme Court Civi! Appeal No.34 of 2019 quite instructive on this matter. The Court stated; 10

> 'lt is true that in order to succeed on this ground ,the Applicant must, aport from fillng the Notice of Appeol, place before the court ,materiol that goes beyond a mere statement that the appeal hos a likelihood of success......so os to give the court an idea obout the possible grounds of his intended appeol. We are in the circumstonces unable to establish the likelihood of success in the absence of evidence."

Itherefore find that the applicant failed to establish a prima facie case with a likelihood of success. 20

# 2. lrreparable damage

The Black's Law Dictionary gth Edition at Page 447 defines "irreparable domoge" to meon "domoge that connot be eosily oscertained becouse there is no fixed pecuniary standard of ossessm ent." 25

This court in City Council of Kampala V. Donozio Musisi Sekyaya. CA Civil Application No.3 of 2000 defined irreparable loss as " o loss thot connot be compensoted for with money."

7 of 9

5 The Applicant contends that the Respondent has taxed the Bills of costs in Divorce Cause No.112 of 2016 and Miscellaneous Application No.983 of 2022. The Respondent contends that no Order has been extracted in Miscellaneous Application No.983 of 2022 and no steps have been taken to execute the decree in the Divorce Cause.

The question to consider is whether execution of the decree anrl orders issued by the High Court in terms of costs as ordered would inflict irreparable damage to the applicant given the definitions cited herein above. I would not hold so. All the Respondent seeks to enforce are costs which are ascertainable and the Applicant did not furnish any other evidence pointing to any irreparable loss other than the monetary costs.

On the contrary, the Respondent has custody of the couple's n rnor two minor children under her sole care. The Respondent is likely to suffer more if costs spent in the two matters concluded by the High Court are not paid. 20

The Respondent alleged that the Applicant had refused to maint;rin the children as ordered by the court and still enjoys the matrimonial home which allegations were not rebutted. I would hold that the Applicant failed to prove that he will suffer any irreparable injr ry if the application is not granted.

I find no reason to delve into the question of the balance of convenience on account of the findings on the two considerations above. The application fails. I make the following orders;

1. The application is dismissed.

2. The costs of the application shall abide the outcome of the Appeal.

I so order.

Dated and delivered at Kampala this.................................... $10$

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**Moses Kazibwe Kawumi Justice of Appeal**

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