Kigo Estates Limited v Ocan & Another (Civil Application 739 of 2024) [2025] UGCA 42 (13 February 2025)

Full Case Text

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

# CIVIL APPLICATION NO.739 OF 2024

# (ARTSTNG FROM Crvrr AppEAL NO.308 OF 20241

# (ARTSTNG FROM HtGH COURT CtVrL SU|T NO.3191 OF 2015)

### KIGO ESTATES LIMTED APPLICANT

#### VERSUS

# 1. REV. AII ONONO OCAN

# 2. MRS. PATRICIA ACHOLA OCAN RESPONDENTS

# RULING OF MOSES KAZIBWE KAWUMI, JA

# (Sitting as a single Justice)

This ruling arises from an application brought by Notice of Motion under Rules 2(Zland 6(2) of the Judicature Court of Appeal Rules Directions S1.13-10,Section 98 of the Civil Procedure Act and other enabling Laws. The Applicant seeks orders for:-

a) The decree and orders granted in High Court Civil Suit No.3191 of 20L6 to be stayed till the hearing and determination of Civil Appeal No.308 of 2024.

b) Costs of this application to be provided for.

# 5 Grounds of the Application

The grounds of the application are that :-

- L The Applicant and the Respondents were parties in Civil Suit No.3191 of 20L6 wherein judgment was delivered in favour of the Respondents on 25th May 2023. The Applicant then lodged Civil Appeal No.308 of 2024 and which appeal it is contended has a likelihood of success. - 2 The Appeal has been fixed for conferencing on L't April 2025 but the Respondents' agents have commenced execution by alienating the suit land in execution of the judgment and have caused the taxation of the bi!! of costs which the tria! court allowed at UGX. L2,697,500/-. - 3 The Applicant shall suffer irreparable injury which cannot be adequately compensated by an award of damages if the application is not granted and the Applicant is willing to furnish security for costs in the terms the Court may direct. - 4 The Appeal shall be rendered nugatory in the event that execution of the decree takes place prior to the disposal of the Appeal and it is in the interest of justice that the application is granted.

#### Respondent's Affidavit in Reply

The l-'t Respondent filed an affidavit contending that the Applicant's Company Secretary, told court that they did not carry out due diligence before purchasing the suit land and the claim to their being bona fide purchasers was adequately examined by the trial court. lt is further argued that the sale agreement for the land in dispute was not contested by the Applicant during the trial. 25 30

a, ^

5 It is contended by the 1't Applicant that he had a right to file and cause the taxation of the bill of costs as the successful party in the High Court and the Applicant should provide security for costs in the sum of UGX. L2,697 ,500/=.lt is further contended that the Application was overtaken by events since the certificate of title was cancelled after the Applicants failed to attend a public hearing and would not suffer any substantia! loss since the Respondents are in occupation of the land. 10

## Applicant's Affidavit in Rejoinder

The Applicant contends that the duty of this court at this stage is to determine whether the appeal discloses a prima facie case and not to pre-empt matters reserved for the full bench when determining the appeal. lt is further contended that the :ertificate of title to the suit land has not been cancelled since the Commissioner Land Registration halted any transactions from being registered pending the outcome of this application and the Applicant is in physical possession of the suit property. 15 20

### Representation

Mr. Usaama Ssebuufu appeared for the Applicant. Counsel for the Respondents was absent from court. Counsel filed submissions which were adopted and consldered by the court for the determination of the application.

#### Submissions for the Applicant

It was submitted that the Applicant had met all the requirements for a grant of a stay of execution of the decree in High Court Civil Suit No.3191 of 20L6. The Applicant had filed a Notice of Appeal and a Memorandum

5 of Appeal which raises serious matters of law necessitating consideration by the court.

It is further contended that the title to the suit land shall be unjustly cancelled and mutated despite the Applicant having duly purchased and paid full consideration to the registered proprietors. The Applicant further claims to have heavily invested on the land and is in the process of developing it as a real estate project with the suit land located in the middle of the bigger project. l-he alienation of the suit land would negatively affect the ongoing developments argued the Applicant.

Counsel for the Applicant submitted that the Respondents served a decree on the Commissioner Land Registration who gave the Applicant fourteen days to deliver the certificate of title to the disputed land for cancellation. lt is argued that the balance of convenience tilts in the Applicants favour since they are bound to suffer more if execution proceeds and the suit Iand is alienated and mutated off before the determination of the pending Appeal. 15 20

#### Submissions for the Respondent

It was submitted that the Applicant filed a Notice of Appeal on 6th June 2023 but failed to file the Memorandum of Appeal within the prescribed t,me. The Memorandum was according to the Respondents only filed after the lower court dismissed the Applicant's application for stay of execution.

The claim to the possibility of the Applicant suffering substantia! loss is opposed by the Respondents based on the argument that they had not demonstrated the likely deprivation beyond the ordinary consequences that naturally arise frorn litigation. lt is further argued that the Applicant failed to attend the public hearing and the title was cancelled and

> ( t

5 submitted for registration into the names of the Respondents. The Respondent finally argued that the Applicant did not file the application between March 2024 when their application for stay of execution in the High Court was dismissed until December 2024 which was unreasonable and unjustified.

#### Determination 10

I have considered the Motion and the filed affidavits, the submissions and the case law cited by Counsel for the parties.

Two issues emerge for consideration by the court and they are:

- 1. Whether the Applicant has adduced sufficient reasons to justify the grant of a stay of execution. - 2. What remedies are the parties entitled to

The mandate of this court to order for stay of execution of decrees is derived from Rule 5(2Xb) of the Judicature (Court of Appeal Rules) Directions. Sl 13-10 which provides that:-

"subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may--- 20

> (b) in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just."

!n the exercise of the jurisdiction conferred on the court by Rule 6(2Xb), the objective is for the filed Appeal not to be rendered nugatory and for the status quo to be maintained until the appeal is flnally determined. lt is also pertinent to note that at this stage the court is not required to

5 irrvestigate the merits of the Appeal. lt is sufficient for the court to establish that the appeal is not frivolous or vexatious. The court will be guided by those considerations in the determination of the Application.

#### lssue No.1

#### Whether the Applicant has adduced sufficient reasons to justify the grant of a stay of execution. 10

The genesis of the dispute in this court is that the Applicant bought land comprised in Kyadondo Block 250 Plot 387 from the children of the late It4artin Ssekimpi who died in 2009. At the time the Applicant bought the land, it was registered in the names of late Ssekimpi's children and full

consideration pending the transfer into the Applicant's name was paid to them. L5

The Respondents claim to have initially bought kibanja interest over the same land and subsequently acquired legal rights over it from Martin Ssekimpi who however died before transferring it to them. His children however sold the land to the Applicant. The Respondents filed Civil Suit No.3191 of 201"6 against the Commissioner Land Registration, Marko Kikomeko, Nasanga Elizabeth, lrene Wamala, Senyomo William and the Applicant. 20

The High court found that the Respondents had acquired legal interest in the Iand from Martin Ssekimpi and issued a Vesting Order. The court ordered that the registration of the children of late Ssekimpi and subsequently the Applicant as successive proprietors of the suit land should be cancelled and the registration reverted Martin Ssekimpi. The Applicant filed Civil Appeal No.739 of 2024 in this court which has not been fixed for hearing. 25 30 5 The grounds for the grant of a stay of execution are now well settled. ln Lawrence Musiitwa Kyazze V Eunice Busingye. SC Civil Application No.18 of 1990 the court held that:-

"Parties asking for a stay should meet conditions like:

- i) That substontiol loss moy result to the applicant unless the order is mode. - ii) That the opplicotion hos been made without unreosonoble deloy. - iii) Thot the opplicont hos given security for due performonce of the decree or order os moy ultimately be binding upon him.

ln Theodore Ssekikubo &Others V The Attorney General &Another. Constitutional Application No.05 of 2AL3 the Supreme Court re-stated the principles to consider before granting an order of stay of execution pending appea!. The principles are that :- 15

- i) lt must be established thot the applicant will suffer irreparoble domoge or thot the oppeol will be rendered nugatory if a stoy is not gronted. - ii) The application must establish thot the oppeol has o likelihood of success; or a prima facie cose of his right to appeol. - iii) lf (i) ond (ii) obove hove not been established, the court must consider where the balance of convenience lies. - iv) Thot the applicont must establish that the opplicotion wos instituted without delay. 25

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.

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## 1. Whether the application was made without any undue delay.

The question as to whether an application for stay of execution was filed without any undue delay is one of fact. The Commissioner Land Registration summoned the Applicants to appear for a public hearing on the L't August 2024 and required the Applicant to deliver the duplicate certificate of title within fourteen days from 6th December 2024.

The filing of the present Application on L3th December 2024 would not by any standards amount to a delay intended to deny the Respondents of the fruits of their judgment in the High Court. Even the Decree sought to be executed by the Respondents was signed by the Registrar on 8th August 2023.

20 ln Jumaco(T)timited &Others V DFCU Bank Limited. MA No.0027 of 2023, the Court observed that the reckoning of time to determine if a delay is unreasonable begins at the time the decree or order is sealed and becomes enforceable.

> I would not find that there was unreasonable delay in lodging the application.

2. Whether the appeal has a likelihood of success or shows a prima facie case of the applicant's right of appeal

What is required of the court is to determine whether the questions raised by the Applicant on appea! are not frivolous or vexatious and it is not about the merits of the appeal. I noted from the Affidavit in Reply and the submissions filed by Counse! for the

Respondent that matters that are to be handled on appeal were raised yet they are outside the jurisdiction of this court.

The Memorandum of Appeal raises grounds relating to the evaluation of evidence by the trial Judge and specifically the reliance on a sale agreement that was not signed by the Respondents. The Applicant further raises an issue about the alleged holding that the land in dispute was of the Freehold tenure yet it is Mailo land and also seeks a review of the question about it being a bona fide purchaser for value without notice of any fraud. The questions raised in the Memorandum merit investigation b'r the court.

I thus find that the appeal is not frivolous or vexatious but merits consideration at the Appellate level.

## 3. Whether the Applicant will suffer irreparable damage/injury if the stay of execution is not granted

The Applicant argues that there is an ongoing real estate investment on the suit land which will affect the project if execution by alienation and mutation is effected before the Appeal in this court is determined. lt was argued for the Respondent that nothing beyond the natural consequences of litigation will be suffered by the Applicant.

30 The Black's Law Dictionary,gth Edition at Page 447 deftnes "irreporable damage" to meon 'domoges thot connot be easily oscertoined becous: there is no fixed pecuniary standard of ossessment." This court in City Council of Kampala VS Donozio Musisi Sekyaya. CA Civil Application

5 No.3 of 2000 defined irreparable loss as "o /oss that connot be compensoted for with money."

I am inclined to take the position in Shiv Construction Co. Ltd V Endesha Enterprises Limited. SC Civil Application No.34 of 1992 where the court opined that in cases of disputc.r over land, damages are not usually sufficient as compensation. lt was also held by this court in National Enterprise Corporation V Mukisa Foods Ltd. Miscellaneous Application No.7 of 1998 that :-

'The court has power in its discretion to grant o stoy of execution where i^ appeors to be equitable so to do with a view to temporarily preserving the status quo.... As a general rule the only ground for stoy of execution is for the opplicont to show thot once the decretal property is disposed of there is no likelihood of getting it bock should the oppeol succeed."

Once a stay of execution is not granted, the Respondents will be at liberty to complete the registration of the land into their names and deal with

- it which may include disposing it off never to be recovered if the Applicant's appeal succeeds. The question of which of the two parties is irr poss€ssion also appears to be unresolved since both claim to have it yet it is crucia! for a determination on the viability of the orders made by the trial court. 20 - I thus hold that the Applicant will likely suffer irreparable loss if the property is alienated but the Appeal is subsequently determined in their favour. 25

## Requirement for payment of security for due performance

Rule 6 (21(b) of the Rules of this court provides for the court to grant a stay of execution on such terms os the court may think just.

- 5 The Respondent contend in Paragraph 10 of the Affidavit in Reply that the Applicant should deposit in court security for costs to the tune of UGX. L2,697,500/=. The Respondents however in the filed submissions deny that the Bill of costs was taxed and allowed at the same amount calling it a mere allegation by the Applicant. - 10 lt is however not denied that the Respondent was also awarded General damages of UGX.150,000,000/= which is contested by the Applicant on Appeal.

Rule 6(2Xb) of the Rules of the court mandates the court to grant a stay of execution on such terms as the court may think just which implies tlrat

1s each case must be considered on its own peculiar facts. I find the deposit of security for due performance to be necessary to protect and balance the rights of the Respondent who is the Judgment creditor as against the claims by the Applicant.

The Application for the grant of a stay of execution succeeds. I make the zo following orders :-

- i) The Applicant shall deposit in court a sum of UGX. 50,000,000/= being security for due performance within 30 days from the L3th Februa ry 2025 failure of which the Respondent will be at liberty to execute the decree in Civil Suit No.3191of 2016. - ii) Costs of the application will abide the outcome of Civil Appeal No.308 of 2024 pendinenffiaring in this court.

Dated at Kampala this.........t3...... day of 2025.

Moses Kazi e Kawumi

30 JUSTICE OF APPEAL

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