Kibirige v Yako Bank Uganda Limited & Another (Civil Application 150 of 2024) [2024] UGCA 150 (18 June 2024)

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPLICATION NO. 150 OF 2024

(*Arising from High Court Miscellaneous Application No. 219 of 2023*)

(Arising from High Court Civil Suit No. 921 of 2022)

#### ALI MUWANGA KIBIRIGE

*(Executor of the Estate of the* **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** *Late Bulaimu Muwanga Kibirige*

#### **VERSUS**

#### 1. YAKO BANK UGANDA LIMITED

### 2. KALULE HARUNA MUWANGA :::::::::::::::::::::::::::::::::::

#### **BEFORE: HON JUSTICE OSCAR KIHIKA, JA**

*(Sitting as a single Justice)*

# **RULING OF COURT**

This application was brought under Rule $2(2)$ , $6(2)(b)$ , $42(2)$ , 43 and 44(1) of the Judicature (Court of Appeal Rules) Directions seeking for orders that:

a) Execution of the default judgment/decree of the High Court (Commercial Division) in Civil Suit No. 921 of 2022 by attachment and sale of the property comprised in LRV 4000 4 Plot 46 Mulamula Road be stayed until the Folio determination of the Applicant's appeal;

b) Costs of this application be provided for'

when this application carne up for hearing on the 16th of April 2024, Mr. Derrick Bazekuketta appeared for the Applicant while the Respondents were both absent and unrepresented, despite having been duly served with the hearing notices'

Mr. Bazexuketta prayed that the matter proceeds ex-parte and the Sarne was granted. The matter thus proceeded ex-parte and an order of stay of execution of the default judgment in civil Suit No. 921 of <sup>2022</sup>\Ar&S BrrLllted in court. The reasons for the grant were reserved on notice and. the same are given hereunder'

The Applicant fi1ed an affidavit in support of the application sworn on the 12rh ai March 2024 and an affidavit in rejoinder sworn on the 1Sth of ApriJ. 2c24 , stati:rg the grcunds upon which the application is premisec.

The 1", Respondents filed an affidavit in reply sworn on Sth April <sup>2024</sup> opposing thc aPPlication.

# Considerati.cn of the Application

The jur,:iscl.-t:1ir:il of ttir'-s Court to grant an order of stay of execution derives frorr Rule 2l2l and Rule 6 l2l of the Rules of this Court.

The authorities of Lawrence Musiitwa l#yazze Vs Eunice Busingfe sccA No. :l8 of 1990; Dr. Ahmed Muhammed Kisuule vs Greeniand ;3ank (In Liquidation) SCCA No' 7 of 2O2O and Gashurnbar i;-ianiraguha vs Samuel Nkundiye SCCA No' 24 of 2O15 re-state the principles for the grant of a substantive order for stay of execution such as one before me.

Recently, the Supreme court in the application by Hon. Theodore ssekikubo & others vs. The Attorney General and Another' constitutional Application No 06 of 2o1o clearly re-stated the principLes; as -iolic,rws:

In order for rhe Court- to grant an application for a stay of execution;

,,i.1) T?tz ay,plication must establish that hls appeal h,as a tikeiihrrod. of success; or a prlma facle co,se of hts rlght to a.pPeat

{il ft tn ist a.'l"so be established that the appllcant rr'rlll suffer ,i.rre,oa. -able damage or that the appeal will be rendered nugatt ry if a stag is not granted'

/.r) r.l' t s.nd. 2 aboue has not been establlshed, Coutt must consid.er uthere the balance of conaenience lies.

(4) T?t0tt the appllcant must also establish that thc s.px.)':ic ttion was i.nstituted utlthout delag"'

# !. Prim.a -facie case with likelihood of success

Regarrl, :,.. t. , i,.;sr-le c f 1ikelihc,,ld of su-ccess, Mr. Bazekuketta submittec tliat in demonstrating existence of a prima facie case, it is important ano sufficient for the Applicant to point out the questions for d.eier,,-l:atron by tfle collrt in the appeal. The Applicant attached <sup>a</sup>cop\i cf' .he Craft Vlentorandr-r-m :f Appeal to the affidavit in support of the application, marked annexure 'K' and the draft grounds are as follows:

"1. The learned trial Judge erred in law and fact when he held that the evidence before him was not sufficient to establish, with the minimum degree of certainty required at that stage, that the property comprised in LRV 4000 Folio 4 Plot 46 land at Mulamula Road, Makindye, Kampala City constitutes part of the estate of the late Bulaimu Muwanga Kibirige.

- 2. The learned trial Judge erred in law and fact when he held that the evidence before him was insufficient to support the assertion that, at the time of attachment, the suit property was in possession of the applicant. - 3. The learned trial Judge erred in law and fact when he held that the suit property was, at the time of attachment, attachable in execution of a degree against the $2^{\rm nd}$ Respondent. - 4. The learned trial Judge erred in law and fact when he declined to grant the reliefs and orders sought."

Upon perusal of the Applicant's draft Memorandum of Appeal, I find that the Applicant has raised points of law and fact which ought to be argued on appeal. The issue of whether the suit land was fraudulently transferred to the into the names of the $2^{nd}$ Respondent after the deceased's death is one that warrants determination by this court.

In the case of Stanley Kang'ethe Kinyanjui v Tony Ketter & <sup>5</sup> Others [2oi3l e KLR, it was held that; "An arguable appeal is not one tuLtich m',Lst necessorily succeed, but one uthiclt ought to be argued fuUU belbre tne court; c.,ne whicltis notftiuoictus." Thrs authority is of high persuasrve value and I agree with the holding therein.

I therefore find rhat the Applicarl.t established existence of a prima facie case orr appeal.

# 2. Irreparable damage

The s,:cr,n,:', consicleration is urhether the Applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted.

The Applicant, in paragraph 15 of the affidavit in support of the Application, stated that the estate of the late Bulaimu Muwanga Kibirige -would suffer substantial loss if this application is not granted. 'iht Applicant contends that the suit property belonged to the late BU. IE . LmLr Nluwanga Kibirige who died on loth September 2O2l and the sarne was transterred into the narnes of the 2"a Respondent on 7rn Mar:ir '20'2'2, 6 months aJter the deceased's death. This evidence is round in paragraphs 4 and 5 of the affidavit in support of the applicat:on which states as follows;

"1. Ori r1:t psforLlci1| 2023, I filed Miscellaneous Application No. 219 o.l'2C23 challenging the attachment and sale of the suit properly on grounds tLnt the suit property belongs to the estate of the late Bulaimu Muutanga Kibiige but utas fraudulentlg and

illegally transferred to the $2^{nd}$ Respondent after the deceased's death. However, Miscellaneous Application No. 219 of 2023 was dismissed. (A copy of the application and ruling in HCMA No. 219 of 2023 is attached hereto and marked "C2" and "D" respectively.)

5. The late Bulaimu Muwanga Kibirige died on 10<sup>th</sup> September 2021 and the suit property was fraudulently and illegally transferred into the name of the $2^{nd}$ Respondents on $7^{th}$ March 2022, approximately 6 months after the deceased's death. (A copy of an entry in the Register of Deaths and search report are attached hereto and marked "E" and "F" respectively)."

The Applicant's contention is that the suit property belongs to the estate of the late Bulaimu Muwanga Kibirige, to which the Applicant is the executor. The Respondent's affidavit in reply however does not rebut this important piece of evidence. In reply to paragraphs 4 and 5 of the Applicant's affidavit, the Respondent simply states in paragraph 4 that the contents of paragraphs 4 and are noted. Paragraph 4 states as follows;

# "4. That contents of paragraphs 1, 2, 3, 4 & 5 of the affidavit **in support are noted."**

The evidence produced by the Applicants in relation to the ownership of the property is therefore un-rebutted. On the balance of probabilities, it is quite clear that the suit property belongs to the estate of the late Bulaimu Muwanga Kibirige.

In addition, the Applicant has also stated in paragraph 13 of the affidavit in support of the application that he is in physical possession of the suit property which is developed with a building from whicn rent to sustain the estate of the late Bulaimu Muwanga Kibirige is derived.

In my unclerstanding, the Applicant has to show that the damage bound to be suffereC is such that it cannot be undone or compensateci for in damages. In Giella v. Cassman Brown & Co' [19731 E"A 358, it was held that by irreparable injury, it does not mean thert tlere must not be physical possibility of repairing the injury, but it means that the injury or damage must be substantial or a rL.&teIl2-I one, that is; one that cannot be adequately atoned for in damages.

Applying the principals of irreparable damage, I find that the property at stake is ;;r cofrlfrlercial building from which rent is derived to sustain rhe cstate of tne late Bulaimu Muwanga Kibirige. I therefore find tirai tne Applicant is likeiy to suffer irreparable damage if execu\*Lior- is effected ald the property is sold'

Having fouincl as I harze above, I.find no reason to consider the issue of balanc'^ of (ronvenience for reasons that court should only consider the balance .tf conveni-ence where it is in doubt'

In the resuil thrs application was granted with the follo-ing orders;

1. t\r- c;:C ,' ior stay of Execr-,.tion the default judgment/decree of the Hiqh Court (Commercial Division) in Civil Suit No.921 of 2022 by attachment and sale of the property comprised in LRV 4000 Folio 4 Plot 46 Mulamula Road is hereby is granted until the determination of the Applicant's appeal

2. Costs shall abide the outcome of the appeal.

Dated this day of June 2024

**OSCAR YOH** JUSTICE O $A$ $\cancel{b}$ $P$