Katsinde and Another v Rubarekyera and Others (Miscellaneous Application 41 of 2024) [2025] UGHC 200 (15 April 2025)

#### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO. 41 OF 2024** *(Arising out of CIVIL APPEAL NO. 110 OF 2024 at Masaka High Court)*

### **1. KATSINDE GEORGE**

**2. NUWAGABA MARK::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS**

### **VERSUS**

## **1. RUBAREKYERA GEORGE**

- **2. SEMBABULE DISTRICT LAND BOARD** - **3. COMMISSIONER LAND REGISTRATION**::::::::**::::::::::: RESPONDENTS**

## **BEFORE: HON. JUSTICE LAWRENCE TWEYANZE**

## **RULING**

## **Introduction**

- 1. This Ruling pertains to Miscellaneous Application No. 41 of 2024, brought under Section 33 of the Judicature Act (Cap 13, now Cap 16) and Order 43 Rule 4 of the Civil Procedure Rules (CPR). The Applicants, Katsinde George and Nuwagaba Mark seek: An order staying the execution of the judgment and orders issued in High Court Civil Suit No. 110 of 2022, pending the hearing and determination of their intended Appeal before the Court of Appeal, and costs of this Application. - 2. The Application is supported by the affidavit of the 2nd Applicant, Nuwagaba Mark, deponed on behalf of both Applicants. It arises from a judgment delivered by this Honourable Court on 21st March 2024 in Civil Suit No. 110 of 2022, wherein the Respondents prevailed. The Applicants dissatisfied with the decision, filed a Notice of Appeal on 25th March 2024 and requested the record of proceedings. The 1st Respondent opposes the Application, contending it is premature and lacks merit. - 3. The Applicants were represented by M/s Mwesigwa Rukutana & Co. Advocates while the Respondents by M/s Eliakim & Edson Advocates. The parties filed written submissions, which this Court has duly considered.

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## **Background**

- 4. The Applicants were the Plaintiffs in Civil Suit No. 110 of 2022, wherein this Honourable Court found in favour of the Respondents on 21st March 2024. Aggrieved by the said decision, the Applicants lodged a Notice of Appeal within the statutory 30-day period under Section 79 of the Civil Procedure Act. They now seek a stay of execution, asserting that the intended Appeal raises triable issues with a high likelihood of success, and that the execution would cause substantial and irreparable loss. Specifically, they allege that the suit land, which contains their homes, farms, and sustains over 300 heads of cattle, is their sole source of livelihood. They further claim that eviction would render them homeless and lead to the loss of their livestock due to lack of alternative grazing land. The Applicants argue that maintaining the status quo where they remain in possession is in the interest of justice. - 5. The 1 st Respondent counters that no steps towards execution have been taken, including filing a bill of costs, Notice to Show Cause, or warrant of vacant possession. He submits that the Application is premature, an abuse of Court process, and that the Appeal lacks a likelihood of success.

### **Issues for Determination**

- 6. The pleadings and submissions hinge on the following issues: - *1. Whether a stay of execution in Civil Suit No. 110 of 2022 should be granted.* - *2. What remedies, if any, are available to the parties?*

## **Legal Framework**

- 7. The jurisdiction to grant a stay of execution is derived from *Order 43 Rules 4(1), 4(2), and 4(3) of the CPR*, read together with *Order 22 Rules 23 and 26, and Section 33 of the Judicature Act*. The principles governing such Applications are well-established in judicial precedents, including *Lawrence Musiitwa Kyazze vs Eunice Busingye Supreme Court Civil Application No. 18 of 1990 and Hon. Theodore Ssekikubo & Others vs Attorney General Constitutional Application No. 03 of 2014.* - 8. The Applicant must satisfy the following conditions:

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- a. Filing of a competent Notice of Appeal. - b. Likelihood of substantial loss or irreparable damage if the stay is not granted. - c. Absence of unreasonable delay in instituting the Application - d. Provision of security for due performance of the decree. - e. Demonstration of triable issues or a high likelihood of success on Appeal. - f. Evidence of a serious or imminent threat of execution. - g. A balance of convenience favouring the grant of the stay. - 9. This Court will evaluate each condition against the evidence, statutory provisions, and case law.

# *Analysis and findings*

## *Issue 1:*

# *Whether a stay of execution in Civil Suit No. 110 of 2022 should be granted*

# **1. Filing of a competent Notice of Appeal**

10. The judgment in Civil Suit No. 110 of 2022 was delivered on 21st March 2024. The Applicants filed their Notice of Appeal on 25th March 2024, accompanied by a request for the record of proceedings, well within the 30 day period prescribed by *Section 79 of the Civil Procedure Act*. This timely action satisfies the requirement of a competent notice, as affirmed in *Attorney General Vs The East African Law Society & Another EACA Application No. 1 of 2013*, where the Court recognized a Notice of Appeal as evidence of intent to challenge a decision. This condition is met.

# **2. Substantial loss or irreparable damage**

11. The Applicants assert that execution would result in substantial loss, citing the suit land as their sole source of livelihood, comprising their homes, farms, and over 300 heads of cattle. They contend that eviction would render them homeless and lead to the loss of their livestock due to lack of alternative grazing. However, these claims, outlined in paragraph 6 of the 2 nd Applicant's affidavit, are unsupported by corroborative evidence such as photographs, or livestock records.

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12. In *Tropical Commodities Supplies Ltd vs International Credit Bank Ltd [2004] 2 EA 331,* Ogoola J defined substantial loss as a tangible, quantifiable detriment requiring specific proof, distinct from speculative or nominal loss. The absence of evidence undermines the Applicants' assertions, rendering their claim of irreparable harm unconvincing. Furthermore, the 1st Respondent's affidavit confirms no execution steps have been initiated, reducing the immediacy of any alleged threat. This condition is not satisfied.

### **3. Absence of unreasonable delay**

13. The Application was filed promptly, with the Notice of Appeal lodged on 25th March 2024, just four days after the judgment. This aligns with the 30 day limit under *Section 79 of the Civil Procedure Act* and demonstrates diligence. There is no unreasonable delay, and this condition is fulfilled.

### **4. Security for due performance of the decree**

- 1. *Order 43 Rule 4(3)(c) CPR* mandates that an Applicant provide security to safeguard the Respondent against the risk of an unsuccessful Appeal. In *Shem Mpanga Mukasa & Anor vs Kizza Clessy Barya Miscellaneous Application No. 479 of 2021,* Court emphasized security as a critical safeguard against frivolous Applications. Similarly, *Kisaalu Joseph & 10 Others vs Nakintu May & Anor (Miscellaneous Application No. 105 of 2020* clarified that security encompasses the decretal sum. The Applicants argue that security is discretionary and not mandatory, and I agree with that argument. In the case of *John Baptist Kawanga Vs Namyalo MA No. 12 of 2017 and Margarette Kato Vs Nalwo MA No. 11 of 2011*, Court noted that security for due performance is not a mandatory condition precedent for the grant of an order of stay of execution. This Court has discretion to grant an order for stay of execution without security for due performance. - 14. However, this discretion should be exercised taking into account the circumstances pertaining to the Application and on a case by case basis. In the instant case, I do not find it proper to exercise my discretion to grant a stay without security for due performance, since the Applicants have not demonstrated or indicated any willingness to provide any security had it been ordered by this Honourable Court.

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### **5. Likelihood of success or triable issues**

15. The Applicants assert that their Memorandum of Appeal raises triable issues, including the trial Court's evaluation of evidence on fraud, the principles of *bonafide* purchaser for value without notice, the 3rd Respondent's authority to cancel their Certificates of Title, and the award of general damages. In *GAPCO Uganda Ltd vs Kaweesa & Anor Miscellaneous Application No. 259 of 2013) [2013] UGHCLD 47*, the Court held that a prima facie case, not mere assertion, is required. While this Court refrains from delving into the merits, the identified grounds in the Memorandum of Appeal suggest triable issues warranting appellate scrutiny. This condition is satisfied.

### **6. Serious or imminent threat of execution**

16. A stay is justified only where there is a clear, imminent threat of execution, evidenced by steps such as extracting a decree, taxing a bill of costs, applying for a warrant of execution, or issuing a Notice to Show Cause (See *Junaco (T) Limited & 2 Others vs DFCU Bank Limited Miscellaneous Application No. 27 of 2023) [2023] UGCommC 37*. The Applicants allege harassment by the 1st Respondent, including 24-hour eviction notices, but provide no documentary or affidavit evidence to substantiate this claim. This should have been demonstrated by photographs and/or videos showing such harassment. And for the 24-hour eviction notices, court never came across such on the record. So without such corroborative evidence, Court cannot act on mere plain speculations, and the applicants are required to do more. In any case, the 1 st Respondent confirms no execution proceedings have commenced. In the absence of unequivocal evidence of imminent execution, this condition is not met.

## **7. Balance of Convenience**

17. The balance of convenience, as articulated in *British American Tobacco (U) Ltd vs Nsubuga* [2006] UGCommC 32, favours the party with a stronger legal position and timely action. The Respondents, having secured judgment, face prejudice from further delay, particularly without security for due performance to protect their interests. The Applicants' failure to prove imminent harm, provide security, or establish a compelling case tilts the balance against them. This factor weighs against granting the stay.


### **8. Conclusion**

18. Having evaluated the evidence and legal principles, this Court finds that the Applicants have not satisfied the cumulative conditions for a stay of execution. While a competent Notice of Appeal was filed without delay, and triable issues exist, the lack of proof of substantial loss, absence of security, and no imminent threat of execution are fatal to the Application. The balance of convenience further is against the Applicants. Accordingly, this Court declines to exercise its discretion to grant the stay.

#### **9. Final orders**

- 1. Miscellaneous Application No. 41 of 2024 is hereby dismissed. - 2. Costs of the Application are awarded to the 1st Respondent.

It is so ordered.

Ruling delivered electronically at Masaka this 15th day of April 2025.

……………………………………

**LAWRENCE TWEYANZE JUDGE 15th April 2025**