Kemirembe & Another v Wasajja & Another (Miscellaneous Application 954 of 2023) [2024] UGHCFD 60 (7 September 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [FAMILY DIVISION] MISCELLANEOUS APPLICATION NO. 954 OF 2023 (ALSO ARISING FROM CIVIL SUIT NO. 320 OF 2021)**

#### **1. KEMIREMBE WINNIE**

**2. NALULE JUSTINE ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT** (Administrators of the estate of the late Najjuma Elizabeth)

#### **VERSUS**

#### **1. WASAJJA PHILLIP**

## **2. MUSANJE PAUL :::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **RULING BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

#### **1.0. Introduction.**

- 1.1. This ruling relates to an application brought by Notice of Motion under **Section 98 of the Civil Procedure Act, Cap. 282, Order 43 and Order 52 Rules 1 and 2 of the Civil Procedure Rules S. I. 71-1** seeking for; - a)An order for stay of execution of decree in Civil Suit No. 320 of 2021 doth issue pending the determination of the Appeal. b)Costs of the Application be provided for. - 1.2. The grounds of the application are set out in the Notice of Motion and in an affidavit in support thereof deposed by Kemirembe Winnie, the 1st Applicant and briefly are that; - 1. There is a serious threat of execution.


- 2. The Applicants have filed an Appeal against the Judgment and Orders of the Trial Judge. - 3. The orders of the Judge leave the estate property at risk of alienation which will subject irreparable loss to the Applicants and other beneficiaries of the estate. - 4. The Applicants Appeal stands greater chances of success as the learned Judge erred in her findings which leave the estate at large at risk of being intermeddled with. - 5. There will result substantial loss on the part of the Applicants and other beneficiaries if a stay is not granted. - 6. It is in the interest of justice that this Application be granted. - 1.3. The 1st Respondent opposed the Application through an Affidavit in Reply in which he briefly stated that:

1. The Applicants are in contempt of the Order/Judgment having not returned to Court the revoked Letters of Administration by 17th August, 2023, having not handed over to the Respondents their share in the estate, having not filed a comprehensive and true statement of account, having not handed over to the Respondents vacant possession of the rental unit and having not refunded any rental income collected by the 1st Applicant from the Respondent's rental unit, amongst others.

- 2. That instead of complying with the Court Orders, after delivery of the Judgment, the Applicants unlawfully demolished the toilets and kitchen that are meant to be used by the occupants of the rental unit and constructed a structure contrary to the permanent injunction issued by the court against the Applicants. - 3. That as a result of the Applicants contempt of Court Orders, the Applicants Appeal is unlikely to succeed. No demonstration has


been made to this Court on how the Appeal against the Judgment has a likelihood of success.

- 4. There is no substantial loss to be suffered by the Applicants if the order for stay of execution is not granted. - 5. The Applicant has not given or exhibited willingness and ability to give security for due performance of the decree. - 6. The Application is brought in bad faith by the Applicants purposely to maliciously use the order for stay of execution to hold onto the shares of other beneficiaries while the 1st Applicant is gainfully generating income from her share of the estate of the Late Najjuma Elizabeth. - 7. The Applicants have not fulfilled the requirements for the grant of an order for stay of execution. - 1.4. The 1st Applicant filed an affidavit in rejoinder, in which she among others stated that the Respondents were notified through their lawyers to appear in person to receive and endorse their acceptance of their shares as per the last Will of the Late Najjuma Elizabeth but have never taken any initiative to do so.

## **2.0 Representation.**

2.1 The Applicants were represented by Peace Agenorwor of Talp Advocates and the Respondents were represented by Berna Mutamba of Manzi, Mutamba Advocates & Solicitors.

## **3.0 Issue for court's determination.**

3.1. Whether the Applicants have fulfilled the requirements for the grant of stay of execution of the Decree of Court?


#### **4.0 Written Submissions.**

- 4.1 The Applicants filed in Court their written submissions in resolution of this Application on 15th August, 2023 and the Respondents filed at the Court their written submissions on 5th September, 2024. - 4.2 I have considered the submissions of all parties and perused the pleadings on court record in the determination of this matter.

#### **5.0 The Law.**

- 5.1 **Order 43 Rule 4 of the Civil Procedure Rules, S. I 71-1** provides as follows; - (1) An appeal to the High Court shall not operate as a stay of proceedings under a decree or order appealed from except so far as the High Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the High Court may for sufficient cause order stay of execution of the decree. - (2) Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing from the decree, the court which passed the decree may on sufficient cause being shown order the execution to be stayed. - (3) No order for stay of execution shall be made under sub rule (1) or (2) of this rule unless the court making it is satisfied—


- (a) that substantial loss may result to the party applying for stay of execution unless the order is made; - (b) that the application has been made without unreasonable delay; and - (c) that security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him or her.

## **6.0 Determination of this Application.**

- 6.1 The position is that where an unsuccessful party is exercising their unrestricted right of appeal, it is the duty of the court to make such orders for staying proceedings in the judgment appealed from as this will prevent the appeal being rendered nugatory. **(See Wilson Vs Church (1879) volume 12Ch d 454 followed in Global Capital Save 2004 Ltd and Anor VS Alice Okiror & Anor HCMA No.485/2012.** - 6.2 The Supreme Court in **Lawrence Musiitwa Kyazze Vs Eunice Busingye SCCA No.18 of 1990(1992) IV KALR 55** noted that, an application for stay of execution pending appeal is designed to preserve the subject matter in dispute so that the right of the appellant who in exercising his/her undoubted rights of appeal are safeguarded and the appeal if successful, is not rendered nugatory. - 6.3 The considerations of the court were set out in **Hon. Theodore Ssekikubo & Ors Vs. Attorney General & Others, Constitutional Application No. 03 of 2014** as relied on by the Applicants, where the Court expanded the list to include;

i. The Applicant must show that he lodged a notice of Appeal.


- ii. That substantial loss may result to the applicant unless the stay of execution is granted. - iii. The application has been lodged without unreasonable delay. - iv. The Applicant has been given security for due performance of the decree of order as may ultimately be binding upon him. - v. There is serious or eminent threat of execution of the decree or order and if the application is not granted, the appeal would be rendered nugatory. - vi. The application is not frivolous and has a likelihood of success. - vii. That refusal to grant the stay would inflict more hardship than it would avoid. - viii. The power to grant or refuse a stay is discretionary. - 6.4 This Court will consider each Condition for Stay of Execution examining the arguments by the Applicants in support of the ground and the arguments by the Respondents in opposition of each ground.

## **7.0. Pending Appeal.**

7.1. Both parties acknowledge a Notice of Appeal was filed on 4th August, 2023 against the Judgment delivered on 3rd August, 2023, fulfilling this condition.

## **That Substantial Loss may result to the Applicants unless the Stay of Execution is granted.**

## 7.2. **Submissions by the Parties.**

7.2.1. The Applicants submitted that the decree leaves the estate at large with no person having authority to stop any illegal acts on the only estate property moreover which was distributed by the Will of the deceased annexed to the grant. They further averred that there has previously been conduct of intermeddling with the estate by selling off the only property belonging to the estate by some individuals which


they are challenging in court and if no protection is given, the property stands to be alienated and appropriated to the detriment of the beneficiaries who will suffer irreparable loss.

- 7.2.2. The Respondents, in their respective submissions averred under paragraphs 6 and 7 that there is a Will by which each beneficiary was bequeathed a particular part as indicated in the Will and Judgement. Given the evidence on record, the 1st Applicant rented out what was bequeathed to her and shifted to the Respondents share of the estate where she now stays. The 1st Applicant had not in any way attempted to demonstrate to court how they will suffer substantial loss if the Respondents received their beneficial share in the estate just like the 1st Applicant received her share in the main house. - 7.2.3. The Respondents further submitted that a look at the Memorandum of Appeal reveals that the Applicants only appealed against the Orders relating to the performance of their duties as administrators not the Orders relating to the right of the Respondents to receive their beneficial share of the estate. In particular, the Respondents averred that the agreements attached and relied upon by the Applicants in support of the Application did not relate to the part of court decreed to be handed over to the Respondents and the owners of that part of the estate are not party to the suit. - 7.2.4. The 1st Applicant has not adduced any evidence to prove that she will suffer any substantial loss if execution is not stayed, there is no reasonable ground as to why Execution should not issue. The 1st Respondent went on to state that there is not even an averment that the Applicant shall suffer *loss* let alone loss that can be termed *substantial*.

 7.2.5. The Respondents submitted regarding the concern of dealing with a question of lack of evidence on how the applicant shall suffer substantial loss if the decree is executed and relied on the case of **Umeme Ltd Vs. Rurihoona Elisam Misc. Application No. 70 of 2021** where Hon. Justice Musa Ssekaana stated that;

" *…and what the applicant is terming as a loss is an entitlement to the respondent as a successful party…In the case of Pan African Insurance Co. Ltd Vs International Air Transport Association HCMA No. 86 of 2006, it was held that, the dependent must go a step further to lay the basis upon which court can make a finding that the applicant will suffer substantial loss. That it should go beyond the vague and general assertions of substantial loss in case the order of stay is refunded….. there seems to be a common thinking among litigants that court can grant a stay of every decree as an automatic right which is wrong. While exercising the discretion conferred under the law of stay of execution, the court should duly consider that a party who has obtained a lawful decree/order is not deprived of the fruits of that decree except for good and cogent reasons".*

- 7.2.6. To further emphasis, the above, the Respondents cited the case of **Housing Finance Bank Ltd and Speedway Auctioneers Versus Edward Musisi Court of Appeal Misc. Application No. 158 of 2010** at page 9 wherein, the Court observed that; *"The applicant in order to move court to exercise its discretion whether or not to grant the order of stay must adduce evidence to court that he/she will suffer substantial loss if the decree was executed, notwithstanding that the decree might be set aside was executed".* - 7.3. **Determination.**


- 7.3.1. The court's role in an Application for a Stay of Execution is to balance the interests of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his or her appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his or her judgment **(see Alice Wambui Nganga v. John Ngure Kahoro and another, ELC Case No. 482 of 2017 (at Thika); [2021] eKLR).** - 7.3.2. In the Adjudication of disputes by the Court, it is well known that there will be a successful and unsuccessful party. The unsuccessful party will suffer a loss as a result of that decision. Execution is the tool by which the Successful Party enjoys the fruits of the Judgement. The court considered the matter before it being Administration of the Estate with beneficial interests of the estate, the deceased died testate clearly leaving a Will on how the estate should be dealt with upon her demise. The Applicants have failed to execute their role of distribution of the estate since the grant of Letters of Administration with Will annexed. This application arose from Civil Suit No. 320 of 2021 wherein the Respondents were awarded the decree based on facts and evidence presented. The loss stated to be occasioned to the Applicants is a direct result and fruit of the Judgement in Civil Suit No. 320 of 2021. - 7.3.3. The Applicants burden was not to prove that loss would be occasioned as that is expected by every unsuccessful litigant, it is to prove that the loss occasioned would be substantial as to necessitate a stay of execution until the determination of the Appeal. The Applicants did not present this court with any evidence of loss substantial, beyond that of any other unsuccessful litigant. In the case of **Shell Ltd V Kiburu and Another (1986) 1 KLR 410,** the court stated that "*If there*


*is no evidence of substantial loss to the applicant, it would be a rare case where the Appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the Respondents should be kept out of their money or in this case, the fruits of their successful judgement."* In this instance, the court finds that the Applicants have not proved substantial loss and therefore not met the condition as provided for under the law.

## 7.4. **The Application has been made without unreasonable delay.**

- 7.4.1. The Applicants submitted that they filed a Notice of Appeal on 4th August, 2023 and wrote a letter to this Court requesting a certified copy of the Judgement and the Record of Proceedings. The Respondents conceded that there existed a Notice of Appeal and an application filed on 15th August, 2023. - 7.5. **That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.** - 7.5.1. The 1st Applicant throughout her affidavit in support of the Application made no mention of her/2nd Applicant's willingness or readiness to provide security for the due performance of the decree or order as may ultimately be binding upon the Applicants. - 7.5.2. The Applicants submitted that as the requirement for security for costs, courts have held that the objective of the legal provisions of security for costs was never or intended to fetter the right of appeal. It was intended to ensure that courts do not assist litigants to delay execution of decrees through filing vexations and frivolous appeals. Counsel relied on the case of **Asuanaum Sam Vs Opolot David MA No. 003 of 2014,** *(How I wish a copy had been availed to peruse the*


*content myself),* noting that, court held that the status of the Applicant should be put in consideration in order to decide whether security should be ordered or not. That, the Applicants were administrators of the estate who were simply protecting the estate property which was at verge of being wasted, they indicated that they filed a suit at the land Division which they had to prosecute to its conclusion and therefore they had to remain as such without revocation of Letters of Administration.

- 7.5.3. On the other hand, the Respondents counsel submitted and cited Order 43 Rule 4(3)( c) that for a stay of execution to be granted, the applicant must furnish security for due performance of the decree. In the case of **Lawrence Musiitwa Kyazze Vs Eunice Busigye SC Civil Application No. 18 of 1990** their Lordships pointed out that the parties asking for a stay of execution should be prepared to meet the conditions set out in **Order 39 Rule 4 (3) now Order 43 Rule 4(3).** - 7.5.4. Counsel for the Respondents further submitted that, it therefore follows that it is requirement that execution is stayed only on condition that the applicant has before or at filing of the substantive application for stay furnished security for due performance of the decree. It is trite law the where the words of a statute are clear and unambiguous, they should be given their literal interpretation. Courts do not have the power to write anything into the law and in this case, the law provides for deposit of security for due performance of the decree not security for costs after all costs were not awarded and are not being executed. - 7.5.5. Upon perusal of the Applicants pleadings and submissions, the Applicants have not expressed any evidence of willingness to give security for due performance of the decree or order which may ultimately be binding upon them. Yet this burden is imposed on them


to enable this court allow the application. Therefore, this condition has not been met. In that regard, this ground fails.

- 7.6. **There is a serious or imminent threat of execution of the decree or order and if the application is not granted the appeal would be rendered nugatory.** - 7.6.1. The 1st Applicant contends under paragraphs 5 and 6 of her affidavit in support of the application that while the appeal is pending, there is an imminent threat of execution due to the court's order requiring the delivery of the letters of administration for the estate by 17th August, 2023. She argues that executing these orders would expose the estate to potential intermeddling and waste by unauthorized individuals. - 7.6.2. This Court reiterates that the Letters of Administration (with a Will annexed) for the estate of the Late Najjuma Elizabeth were issued to the Applicants on 26th October, 2017 vide Administration Cause No. 422 of 2017. The Applicants had a duty to file an inventory within six months and to distribute the estate's assets amongst the beneficiaries within one year. All beneficiaries of the estate were clearly aware of their specific entitlements as outlined in the Will annexed to the Letters of Administration. Notably, the 1st Applicant occupied her designated share, subsequently rented it out, and then unlawfully took over the portion intended for the Respondents, which she has been in occupation since 2017. The Applicants were obligated to distribute the estate but failed to do so for nearly seven years. Consequently, the Letters of Administration (with a Will annexed) issued to them on 26th October, 2017 were revoked. They were ordered to return these letters to this Court within two weeks of the judgment (by 17th August 2023) but have not complied to date. This blatant disregard for the court's


orders constitutes clear contempt, and such behavior cannot be rewarded with a stay of execution.

- 7.6.3. This Court finds no issue with the Applicants respecting its orders by returning the revoked Letters of Administration by 17th August, 2023 and then seeking appropriate redress through a higher court, rather than ignoring those orders. - 7.6.4. The above notwithstanding, the Applicants have failed to provide this Honorable Court with evidence indicating that execution of the decree has commenced. - 7.6.5. In the case of **Kyambogo University Versus Prof. Isaiah Omolo Ndiege, Civil Application No. 341 of 2013 (C. A)** Justice Kenneth Kakuru J. A stated as follows;

*"There is no evidence whatsoever that there is an impending or imminent threat of execution, no such evidence was provided. No warrant of execution has been issued or even applied for...".*

7.6.6. Therefore, this condition has not only been unmet but is also unjustifiable. The Applicants have failed to provide any evidence of imminent execution, and their own actions demonstrate a disregard for the court's orders. Their non-compliance undermines their claims as they have not respected the clear and simple directive to return the revoked Letters of Administration.

## 7.7. **That the pending appeal is not frivolous and has a high likelihood of Success.**

7.7.1. This determination is not within the knowledge of this court and can therefore not be determined at this point. The Applicant presented the Notice of Appeal marked Annexure **"B"** on their affidavit supporting this Application. There is a Memorandum of Appeal containing the grounds on which the Appeal is based. However, this court's duty is


not to ascertain whether or not the Appeal has a high likelihood of success.

## 7.8. **That refusal would inflict more hardship than it would avoid.**

- 7.8.1. The 1st Applicant submitted that she has been residing on the suit property for the past years and it is also where she derives her sustenance. She averred that vacation from the premises and denial of this Application would cause her hardship. - 7.8.2. The court finds that the scales of hardship fall towards the Respondents. The Respondents are also the successful Judgement debtors who have been frustrated in their bid to obtain the fruits of the Judgement in their favor. The 1st Applicant continues to collect rent from the suit property and refuses to vacate the premises. In that regard, the scale of hardship leans toward the Respondents and not the Applicants. This Condition is therefore not met.

## **8.0. Conclusion.**

- 8.1. In conclusion therefore, this Court makes the following orders; - 1. This Application for Stay of Execution of the decree in Civil Suit No. 320 of 2021 is hereby denied. - 2. Miscellaneous Application No. 956 of 2023 is overtaken by events. - 3. Costs awarded to the Respondents.

*I so Order*.

**Dated, signed and delivered electronically this 7th day of September, 2024.**

……………………………………… **CELIA NAGAWA JUDGE**