Kenyi v Kenyi & 3 Others (Civil Application 189 of 2024) [2024] UGCA 218 (21 August 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

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

### **CIVIL APPLICATION NO. 189 OF 2024**

(Arising from Civil Appeal No. 1059 of 2023)

(Arising from Miscellaneous Application No. 412 of 2020)

(Arising from High Court Civil Suit No. 105 of 2020)

(Arising From Administration Cause No. 103 of 1987)

### **BETWEEN**

#### MUJIB JUMA KENYI.................................... (Administrator of the estate of the late Hajji Juma Kenyi)

#### **VERSUS**

- 1. SWAIB JUMA KENYI - 2. SURAYA JUMA KENYI - 3. ABDULRAHAMAN JUMA KENYI - 4. ABDULLATIF JUMA KENYI.................................... (Administrator of the estate of the late Hajji Juma Kenyi)

# **RULING OF CHRISTOPHER GASHIRABAKE, JA** (SINGLE JUSTICE)

## **Introduction**

1] This application was brought under, Rules $2(2)$ , 4, 5, $6(2)(b)$ , 42 of the 25 Judicature (Court of Appeal) Rules SI 13-10, for Orders that;

- a. The Honourable Court grants a stay of execution pending hearing and determination of Court of Appeal Civil Appeal No. 1059 of 2023. - b. Costs of this application be provided for. - 2] The application is premised on the grounds: - a. That the Honourable Court delivered a ruling on the 31st day of *August 2023 and a Notice of Appeal and letter requesting for record* of proceedings filed in this Court and the appeal is pending hearing *before the Court of Appeal.*

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- $b$ That the learned Trial Judge in Her Ruling found the Applicant in contempt of Court and further ordered him to comply with the orders in High Court Civil Suit No. 105 of 2020 within fifteen days from the date of the Ruling. - *c. That Court ordered that if the Applicant fails to comply with the orders* in High Court Civil Suit No. 105 of 2020 the Applicant would be committed to Civil prison. - d. That the Applicant was further ordered to pay the Estate of the late *Juma Kenyi Ugx. 10, 000,000/= (Uganda Shillings Ten Million only)* within 30 days from the date of delivery of the ruling. - e. That the Applicant has a pending appeal in the Court of Appeal against the decrees arising from the High Court Civil Suit No. 105 of 2020 and if he complies with the orders appealed against in the ruling then the appeal will be rendered nugatory. - That the Applicant has since appealed against the ruling and now $f$ . *seeks a stay of execution to stay the ruling that found him in contempt* of court and stop his arrest and committal to civil prison and payment of damages awarded by the court. - g. That the Applicant files an application for interim stay pending *hearing before this honourable Court.* - *h. That the Applicant filed an appeal at Court of Appeal that is pending* hearing before this honorable Court. - *That there is a high risk of arrest and detention to civil prison for six* i. *months if stay of execution is not granted.* - *That the Applicant stands to suffer substantial loss or irreparable loss,* j. *if execution is not stayed pending determination of the appeal.* - That the Applicant will be occasioned grave injustice if the orders k. *arising from the ruling finding him in contempt of Court are enforced.* - It is just, equitable and the interest's substantive and natural justice *l. will be best served in allowing the application.*

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5 3l 'l'hc application was opposcd by an af fidavit sworn by Mr. Swaib Juma Kcnyi on thc ground that thc application is a blatant abusc o[' thc Court proccss.

### Rcprcscntation

4l Mr. Jason N.lcru Kigundu rcprcscntcd thc Applicant.'l'hc Applicant was in Court. Mr. Scrwadda Gcorgc Patrick rcprcscntcd thc Ilcspondcnts. 'l-hc partics filcd writtcn submissions.

# Srr bmissions Ibr thc Alrnlicanls

- 5l Counscl lbr thc Applicanl corrcctly surnmarizcd thc guiding law in granting thc stay ol cxccution. Counscl citcd rulc 6(2)(b) and l)r. Ahamcd Muhammcd Kisuulc v (irecnland llank (in liquidation) SCMA' No 07 of 2010, Kyambogo [Jnivcrsity v l)ro lsaiah Ndicgc, Court of Appcal Civil Application No.34l of 2013, Lawrcncc Musiitwa Kyatzc v Eunicc Ilusingyc, Civil Application No. ltl of 1990 and (lashumba v Nkundiyc' Civil Application No. 24 of 21115. - 6l Counscl submittcd that I(ulc 2(2) ol-thc Judicaturc (Court ol-Appcal l(ulcs) I)ircctions, grants this Court discrctiott t<t makc such ordcrs that arc ncccssary 1o achicvc thc cnds of justicc. Counscl citcd National Insurancc Corporation v Mukisa Foods, Miscellancous Application No.7 of l99tt citcd by this Courl in Kclspo Sckandi [,usangwa v Administrator (iencral, 20

'15

Misccllancous Application No. 457 of 2022.

- 7| Counscl I'urlhcr submittcd that lbr this C'ourt to cxcrcisc its discrction in this application, thc Applicant mLrst provc thc cxislcttcc ol'scvcral principlcs laid down in scvcral cascs. Narncly; - u. 'l'hc trl4tliculion ntusl estuhli:ih that lhc ttltltcul hus u likclihtnd tt/

b. It must be established that the Applicant will suffer irreparable damage or that the appeal will be rendered nugatory if the application is not granted.

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- c. If 1 and 2 above have not been established, then the Court will consider a balance of convenience. - d. The Applicant must demonstrate that the application was without delay. - 8] Counsel made submissions regarding the grant of an interim stay of execution. Since this is an application for a stay of execution, we shall not consider the submissions on interim stay of execution. - 9] On whether there is a likelihood of success, counsel submitted that the 15 Applicant filed a Notice of Appeal (see Annexture A) and the letter requesting a typed record of proceedings was provided as Annexture B. Additionally, the record of appeal and the Memorandum of Appeal was filed therein and attached as Annexture F to the affidavit in support of the application. Counsel argued that the appeal has a likelihood of success. 20 Counsel submitted that the court needs to be satisfied that the application is not frivolous or vexatious and that there is a triable issue before the court. - $10$ On delay, counsel submitted, that the application was filed without delay, since the ruling dismissing the application seeking a stay of execution by the High Court that is dated 29/01/2024 was delivered on 21st March 2024. The application was filed 4 days after the dismissal of the application for a stay of execution at the High Court. - Counsel further submitted that the Applicant had deposited security for $\overline{11}$ due performance at the Court of Appeal Civil Appeal No. 1059 of 2023 and the Applicant is willing to deposit to court the certificate of titles that have not been distributed by the estate.

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- On the balance of convenience, counsel submitted that if the application $\overline{5}$ 121 is not granted, execution will commence before the hearing, and determination of the appeal will be rendered nugatory. Furthermore, the Applicant would suffer greater economic and reputational loss, since he is at risk of being arrested and evicted. - $[13]$ Counsel submitted that the Applicant has satisfied all the requirements $10$ of the grant of stay of execution and prayed that this court grants the stay pending the determination of the Appeal.

## **Submissions for the Respondent**

$[14]$ Counsel for the Respondent agreed with the law regarding the jurisdiction of this Court. Counsel however further submitted that an appeal is a creature of statute and cannot be implied. Counsel raised two objections. Counsel argued that in this instant application, the Applicant did not seek leave of the Court to file the said appeal, and as such the appeal is incurably defective. Counsel stated that since the appeal is incompetent before the court, then there is no basis for granting an application for Stay of Execution Counsel for the Respondent also objects further that the application is $[15]$ an abuse of court process as averred under paragraph 3 of the affidavit in reply. Counsel argued that Rule $2(2)$ is intended to prevent abuse of the Court process. it was submitted for the Respondent that the instant application arises from an illegal appeal. That the Applicant aims to file whatever proceedings as long as it allows him more time to delay the Respondents from executing the orders of court including administering the suit estate. To buttress his argument counsel relied on **Dox Tibeingana v Vijay Reddy Misc.** Application N. 665 of 2019 cited in approval Cane Land Ltd & Others v Delphis Bank Ltd Civil Application No. 344 of 1999, (Kenya Court of

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- Appeal and Benkay Nigeria Limited v Cadbury Nigeria Limited No. 29 of 2006 (Supreme Court of Nigeria), where the court held that to constitute abuse of court process, the multiplicity of suits must have been instituted by one person against his opponent on the same set of facts. - Counsel for the Respondents stated that the Applicant commenced $16$ Miscellaneous Application No. 732 of 2022, Miscellaneous Application No. $10$ 731 of 2022, Miscellaneous Application No. 730 of 2022, Miscellaneous Application No. 972 of 2022, Civil Application No. 203 and 202 of 2023, Miscellaneous Application 1136 of 2023 and Civil Application No. 190 of 2024, to defeat justice. - Counsel observed that the submissions of Counsel for the Applicant $171$ 15 focused on grounds for the grant of an interim stay other than the grant of stay of execution. Counsel cited DFCU Bank Limited v Dr. Ann Persis Nakate, Court of Appeal Civil Application No.29 of 2003, where the court stated the conditions for granting of Stay of execution. - Counsel submitted that the Applicant had failed to demonstrate that he 20 18] would suffer irreparable damages if the application was not granted. It was submitted to the Respondent that the Applicant has mismanaged the estate of the late Hajji Juma Kenyi for 37 years without any account. That the Applicant has not demonstrated that there is an imminent threat of execution. Furthermore, there is no valid pending appeal. Counsel **Kyambogo** 25 University v Prof. Isaiah Omolo Ndiege, Court of Appeal Civil Application No. 341 OF 2013 where Justice Kakuru held that a mere saying that the Applicants 'appeal is meritorious with high chances of success is not enough, the appellants must attach a draft copy of the memorandum of the purported appeal to establish whether the grounds are viable to sustain the 30 intended appeal. Counsel argued that as a former administrator holding the

$\mathsf{S}$ estate in the interest of the beneficiaries, he has nothing to lose. Counsel also cited Nganga v Kimani [1959] E. A.69 and Iddi Heltani v Hamisi Binti Alhumani (1962) E. A. 761.

$191$ Counsel further argued that there was no need to make submissions regarding whether the application was made within time because there was no valid appeal.

- Whether the Applicant paid due performance, counsel submitted that 201 since the Applicant has intermeddled Hajji Kenyi's estate it is only just he pays security for due performance to a tune of Uganda shillings three hundred million shillings only, (Ugx 300,000,000/ $=$ ) if court was inclined to the submissions of the Applicant. - Counsel prayed that the application should be dismissed since it is $21$ unsustainable in court.

## **Consideration of Court.**

22] 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 which provides that:

> "2. Subject to sub-rule (1), the institution of an appeal shall not *operate to suspend any sentence or stay execution but the Court may:*

> *b) in any civil proceedings, where a notice of appeal has been lodged* in accordance with rule 76 of these Rules, order a stay of *execution........on such terms as the Court may think just".*

23] This rule and rule $2(2)$ gives this Court, the discretion, in civil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of the Rules of this Court, to order stay of execution in appropriate cases and on terms that it thinks fit. This discretionary power must not be

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exercised capriciously or whimsically but must be exercised in a way that does not prevent a party from pursuing its appeal so that the same is not rendered nugatory should the appeal overturn the trial court's decision.

$24$ In Hon. Theodore Ssekikubo & Others v The Attorney General and Another, Constitutional Application No 06 of 2013, the Supreme Court laid down the principles to guide the Court in granting a stay of execution. It held that:

$(1)$ The application must establish that his appeal has a likelihood of *success; or a prima facie case of his right to appeal*

(2) It must also be established that the Applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted.

(3) If 1 and 2 above have not been established, the Court must consider where the balance of convenience lies.

(4) That the Applicant must also establish that the application was instituted without delay."

- 25] Before delying into the merits of the application, the Respondents raised two objections, namely that there was no valid appeal so there was no need for a grant of this application, and secondly that the application was an abuse of Court process. - In Lukwago Erias v Attorney General & Another [2014] UGSC 26] 405(21 August 2014), the Supreme Court firmly stated that the right of appeal is a creature of statute. There is nothing known in law as an inherent right of appeal. The legal foundation for an application for a Stay of Execution pending an appeal is the right of appeal to the proper Court and the fact that a Notice of Appeal has been filed. The Notice of Appeal is incompetent and cannot form the basis for an application for a stay of execution pending appeal as there is no pending appeal.

| 5 | $27]$ | The law on the right of appeal to the court of appeal is provided for | |----|--------------------------------------------------------------------|---------------------------------------------------------------------------------| | | under section 10 of the Judicature Act which provides that: - | | | | | "An appeal shall lie to the Court of Appeal from decisions of the High | | | | Court prescribed by the Constitution, this Act, or any other law. " | | | 28] | Section 66 of the Civil Procedure Act provides for Appeals from | | 10 | | decrees and orders of the High Court to the Court of Appeal. It provides thus:- | | | | "Unless otherwise expressly provided in this Act, an appeal shall lie from | | | | the decrees or any part of the decrees and from the orders of the High Court | | | | to the Court of Appeal. " | | | 29] | Furthermore, section 76 of the Civil Procedure Act provides for Orders | | 15 | from which the appeal lies: - | | | | | (1)An appeal shall lie from the following orders, and except as otherwise | | | | expressly provided in this Act or by any law for the time being in force from | | | | no other orders $-(a)$ an order superseding an arbitration where the award | | | | has not been completed within the period allowed by the court; | | 20 | | (b)an order on an award stated in the form of a special case; | | | | (c)an order modifying or correcting an award; | | | | (d) an order staying or refusing to stay a suit where there is an agreement to | | | | refer to arbitration; | | | | (e) an order filing or refusing to file an award in an arbitration without the | | 25 | | intervention of the court; | | | | ( f ) an order under section $65$ ; | | | | (g) an order under this Act imposing a fine or directing the arrest or | | | | detention in prison of any person, except where the arrest or detention is in | | | | execution of a decree; | | 30 | | (h) any order made under rules from which an appeal is expressly allowed | | | | by rules. | | | | (2) No appeal shall lie from any order passed in appeal under this section. | | | $30$ | Additionally, Order 44 of the Civil Procedure Rules list the orders in | | | which appeal lie as of right from the decisions of the High Court. | |

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$\mathsf{S}$ $(1)$ Appeals from orders. (1) An appeal shall lie as of right from the following orders under section 76 of the $Act$ (a) an order under rule 10 of Order VII returning a plaint to be presented to the proper court; (b) an order made under rule 23 of Order IX rejecting an application for an order to set aside the dismissal of a suit; 10 (*c*) *an order under rule 27 of Order IX rejecting an application for an order to set aside a decree passed ex parte;* (d) an order made under rule 21 of Order $X$ ; (*e*) *an order under rule 10 of Order XVI for the attachment of property;* 15 (f) an order under rule 19 of Order XVI pronouncing judgment against a party; (g) an order under rule 31 of Order XXII on an objection to the draft of a document or of an endorsement; (h) an order under rule 67 of Order XXII setting aside or refusing to set 20 *aside a sale:* (*i*) *an order that execution be levied made under rule 6 of Order XXIII;* (*j*) an order under rule 8 of Order XXIV refusing to set aside the abatement or dismissal of a suit: (k) an order under rule 9 of Order $X$ (k) an order under rule 9 of Order 25 XXIV giving or refusing to give leave; (1) an order under rule 6-of Order XXV recording or refusing to record an agreement, compromise, or satisfaction; (m) an order under rule 2 of Order XXVI rejecting an application for an order to set aside the dismissal of a suit; (n) orders in interpleader suits 30 under rule 3, 6 or 7 of Order XXXIV; (o) an order made upon the hearing of *an originating summons under Order XXXVII;* (p) an order made under rule 2, 3 or 6 of Order $XL$ ; (*q*) an order made under rule 1, 2, 4 or 8 of Order XLI; (r) an order under rule 1 or 4 of Order XLII; 35 (s) an order of refusal under Rule 16 of Order XLIII to readmit or under Rule 18 of that Order to rehear an appeal;

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(*t*) *an order under rule 4 of Order XLVI granting an application for review;* ( $u$ ) an order made in an interlocutory matter by a registrar

(2) An appeal under these Rules shall not lie from any other order except with leave of the court making the order or of the court to which an appeal would lie if leave were given.

(3) *Applications for leave to appeal shall in the first instance be made to the court making the order sought to be appealed from.*"

- Having considered the law on appeals from Orders from the High $31$ Court, the Applicant did not demonstrate anywhere in the affidavit evidence or otherwise that he sought leave of Court before filing the appeal which is the basis of this application. For this reason, the preliminary objection is upheld, and I find that the application for a stay of execution is incompetent since there is no appeal. - The application is accordingly struck out. I do not find it necessary to 321 consider the merits of the application. - 331 Costs shall abide by the outcome of the Appeal 20 - 34] I order accordingly.

Dated, signed, and delivered at Kampala this .................................... 2024.

C. GASHIRABAKE

**JUSTICE OF APPEAL**

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