Kigozi andrew v Mukasa Ronald (Miscellaneous Application No. 1364 of 2022) [2022] UGHCLD 198 (20 September 2022)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

# MISCELLANEOUS APPLICATION NO. 1364 of 2022 (Arising out of Civil Appeal No. 106 of 2018) (Arising from Civil Suit No. 064 of 2016, of Chief Magistrate's Court of Makindye at Makindye)

KIGOZI ANDREW ::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

#### VERSUS

## MUKASA RONALD :::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

## BEFORE HON. JUSTICE NAMANYA BERNARD

# RULING

- 1. This Ruling is in respect of an application for stay of execution brought under Section 98 of the Civil Procedure Act (Cap 71) and Order 52 Rules 1 & 2 of the Civil Procedure Rules (S. I 71-1) ("CPR") for orders that: - a) An Interim Order of stay of execution doth issue against the respondent in respect of the Ruling and Orders obtained in Civil Appeal No. 106 of 2022 pending disposal of the main application for stay of execution. - b) Costs of this application be provided for.

- 2. The grounds of this application are contained in the affidavit of Kigozi Andrew, in which he depones, inter alia that: - 1. There is a substantive application for stay of execution. - 2. There is a serious threat of execution. - 3. There is a pending application for reinstatement of the appeal that was dismissed by this Court for want of prosecution. - 4. My intended appeal will be rendered nugatory if this application is not allowed. - 5. This application has been made without any unreasonable delay. - 3. The application is opposed by the respondent (Mukasa Ronald) who swore an affidavit stating that: - 1. The application does not satisfy the conditions for grant of an interim order of stay of execution. - 2. This application has failed to prove that there is a threat of execution. - 3. There is no application for reinstatement. - 4. The applicant is on a fishing expedition, only intended to waste this Court's time by filing the present applications to delay the delivery of the Judgment in the main suit before the Chief Magistrate's Court of Makindye at Makindye where he is not even a party. - 5. The Trial Judge, in dismissing the applicant's appeal, ordered the Chief Magistrate's Court of Makindye at Makindye to proceed and deliver Judgment in the main

suit, after it took cognizant of the fact that the applicant since 2018 had not taken any step or shown interest in prosecuting his appeal.

- 6. If this Court is inclined to grant the application, the applicant should be ordered to deposit security in Court. - 4. The applicant was represented by Mr. Segamwenge Hudson while the respondent was represented by Ms. Muwanguzi Patience. - 5. The matter was called for hearing on the 15th September 2022 at 2.51pm, and counsel for both parties made oral submissions, which I have considered.

#### Consideration and determination of the application:

- 6. The main issue for determination is whether the applicant has established sufficient grounds for grant of an Interim Order for stay of execution. - 7. The purpose of an order for stay of execution pending appeal is to preserve the subject matter so that if the appeal is successful, it is not rendered nugatory. - 8. The discretion to grant or deny an interim order for stay of execution must be exercised judiciously (see Osman Kassim

# Ramathan v. Century Bottling Company Ltd, Civil Application No. 35 of 2019, Supreme Court of Uganda).

9. In an application of this nature, factors to be considered include the following:

1. There must be a pending appeal.

2. There must a substantive application for stay of execution. 3. There must exist a threat of execution.

- 10. The applicant adduced evidence that he has filed a substantive application for stay of execution (paragraph 4 of his affidavit). - 11. However, the applicant has not adduced evidence to prove that there is a pending appeal, and that there is an imminent threat of execution. - 12. The applicant had previously filed Civil Appeal No. 106 of 2018 which was dismissed by this Court for want of prosecution under Order 43 Rule 31 of the CPR. The applicant has filed an application for reinstatement of the dismissed appeal which is yet to be heard by this Court. Although it is true that the respondent has filed a bill of costs, taxation of the bill is yet to take place. - 13. In dismissing the appeal for want of prosecution, the learned Trial Judge, Justice Nyanzi Yasin moved under Section 17 of

the Judicature Act (Cap 13) to direct the Chief Magistrate's Court of Makindye at Makindye to deliver judgment in Civil Suit No. 064 of 2016, Mukasa Ronald v. Lwanga Sarah.

- 14. Section 17 of the Judicature Act requires the High Court to exercise its inherent powers to prevent abuse of process of the court by curtailing delays in trials and delivery of judgments. - 15. I am persuaded by the arguments of counsel for the respondent that the applicant's current maneuvers in filing the various applications before this Court appear to be calculated towards frustrating the delivery of the judgment in the lower court. - 16. It is my finding that there are no sufficient grounds to support this application, and it is accordingly dismissed. - 17. The costs of this application are awarded to the respondent.

I SO ORDER.

NAMANYA BERNARD Ag. JUDGE 20th September 2022