Kiiza v Bazalirwaki (Miscellaneous Application 56 of 2024) [2024] UGHC 1047 (17 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **MISC. APPLICATION NO. 056 OF 2024 (ARISING FROM HCT – 01 – CV – LD – CS – No. 018 of 2020) YOWANA KIIZA ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT** 6 **VERSUS ANDREW BAZALIRWAKI :::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA** 9 **RULING**

# **Introduction:**

This ruling determines the motion by the applicant for an order staying execution 12 of the decree in HCT - 01 – CV – LD – CS – 018 of 2020 and costs of taking out the application.

# **Grounds of the Application:**

- 15 In support of granting the application, Mr. Yowana Kiiza presented the following grounds: - 1. The applicant being dissatisfied by the judgment of court in HCT 01 CV - 18 LD CS 018 of 2020, ordering among others for cancellation of title in Bunyangabu Block 76, Plot 3, lodged a notice of appeal on the 9th of April 2024 and applied for a typed record of proceedings. - 21 2. The applicant had been in physical possession and utilization of a small portion of the suit land measuring 5 acres. - 3. Around June 2024, the respondent or his agents sold part of suit land 24 measuring 30 acres and the buyers are in possession. That around the same


time, the respondent and other people suspected to be buyers of the suit land inspected the portion of the suit land he was occupying.

- 3 4. The applicant was informed by his lawyer that the respondent filed an application for cancellation of the certificate of title for the suit land on the basis of the decree from this court. - 6 5. The applicant would suffer irreparable loss and the pending appeal would be rendered nugatory in the event a stay is not granted. - 6. The application was brought without inordinate delay and its fair and just 9 that it is granted.

## **Reply of the Respondent:**

In opposition of the grant of the application, the respondent deposed as follows:

- 12 (1)The application is misconceived, devoid of any merit, discloses no grounds for stay of execution and ought to be rejected with costs. The applicant had not taken any step to appeal against the decision of this court in Land Civil 15 Suit No. 018 of 2020 thus this application is intended to deny the respondent from enjoying the fruits of the judgment. - (2)The application was overtaken by events since the cancellation that the applicant sought to stay took place on 9 18 th May 2024 before the current application was filed per the search dated 31st July 2024. - (3)The alleged purchaser if any having taken possession of the 30 acres, court 21 cannot order him under the current application to vacate the same since the sale and taking possession were concluded before filing of the current application. In any event there is no sale or intended sale of the land decreed 24 to the respondent as alleged by the applicant.


- (4)The applicant was in illegal occupation of only two acres where he grazes his animals having refused to vacate within 30 days as ordered by court. - 3 (5)The applicant did not deposit security for due performance of the decree and it was fair that the application is rejected with costs.

## **Rejoinder by the Applicant:**

- 6 In rejoinder, Mr. Katalihwa deponed as follows: - (1)When the applicant filed an application for a certificate of urgency, it was indicated by the respondent that no cancellation had taken place since 9 execution had not commenced. Cancellation could not have taken place in May 2024 when the title was still in the custody of court.

(2)The decree of court also had an order directing that the applicant be evicted

- 12 from part of the suit land where he stays with his family. The respondent has already sold part of the suit land and there are threats to sale the remaining portion including the portion that is in the applicant's possession. - 15 (3)The application is not overtaken by events since it seeks to stop his eviction from the suit land.

## **Legal representation and hearing:**

- 18 *Mr. Nyakaana Patrick* appeared for the applicant while *Mr. Mugisa Richard Rwakatooke* appeared for the respondent. A schedule to file written submissions was issued out and both counsel complied. - 21 **Issues:**

**(1)Whether the applicant has demonstrated sufficient cause warranting grant of an order of stay of execution of the orders of this court in land** 24 **civil suit no. 018 of 2020.**


# **(2)What remedies are proper in the circumstances?**

# **Consideration of the issues:**

- 3 *Issue No. 1: Whether the applicant has demonstrated sufficient cause warranting grant of an order of stay of execution of the orders of this court in civil appeal no. 20 of 2021.* - 6 In an application for stay of execution, the applicant must prove the following grounds:

(a) Proof of lodgment of an appeal

- 9 (b)There is serious threat of execution of the decree appealed against. - (c) Substantial loss my result to the applicant unless the order for stay is made. - (d)Refusal to grant would inflict greater hardship than it would avoid. - 12 (e) Deposit of security for due performance of the decree or costs. - (f) Application was filed without unreasonable delay

(See: *MusiitwaKyazze - Vs - Eunice Busingye, Civil Application No. 18 of 1990,*

- 15 *Dr. Ahmed MuhammedKisule Vs. Greenland Bank (in Liquidation), Supreme Court Civil Application No. 7 of 2010, In Kyambogo University Vs. Prof. Isiah OmoloNdiege, C. A. C. A No. 341 of 2013).* - 18

The grounds were outlined in the case of *Hon. Theodore Ssekikubo & Others Vs. The Attorney General and Another, Constitutional Application No.06 of 2013* as 21 follows:

*"In order for the court to grant an application for stay of execution;*

*i) The applicant must establish that his appeal has a likelihood of success;*

24 *or a prima-facie case of his right to appeal;*


*ii) 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* 3 *granted;*

> *iii) If 1 and 2 above has not been established, Court must consider where the balance of convenience lies"*

6 *iv) that the applicant must also establish that the application was instituted without delay*

#### *(a)Proof of Lodgment of an Appeal.*

- The judgment in Land Civil Suit No. 018 of 2020 was delivered by this court on 5th 9 of April 2024. The applicant lodged a notice of appeal against the decision of this court on 9th April 2024 within the 14 days and a copy of the notice and a letter - 12 asking for a typed record of proceedings were attached to the motion as annexure 'A1' and 'A2'. A copy of the notice was served upon the respondents' counsel on 14th April 2024. A draft memorandum of appeal is attached as annexure C. - 15 An appeal against a decision of the High Court to the Court of Appeal is commenced by way of a notice of appeal. Rule 76(1) of the Judicature (Court of Appeal Rules) Directions 2000 states thus; "*Any person who desires to appeal to* - 18 *the court shall give notice in writing, which shall be lodged in duplicate with the registrar of the High Court."* Mwangusya JSC in *Supreme Court Criminal Application No. 08 of 2019, Uganda v Ntambi Vincent* observed that a notice of - 21 appeal is the first step an intending appellant must in the process of appealing. Under Rules 76(2), the said appeal must be lodged within 14 days from the date the decision was made.


I am satisfied that the applicant proved that he lodged an appeal against the decision of this court.

#### 3 *(b)That there is a serious threat of execution of the decree or order.*

Mr. Nyakaana asserted that the Respondent had sold off part of the suit land and there were threats to sale the portion he was occupying. In the supporting affidavit, 6 the applicant indicated that the respondent had initiated the cancellation of the title as decreed by court and this posed a threat warranting a stay.

Mr. Rwakatoke learned counsel for the respondent contended that the application 9 was overtaken by events since it sought to stay a cancellation of the title which took place before the motion in issue was filed. That the applicant did not attach evidence of the alleged sale or photos of the people who were inspecting the land 12 or who bought the same to substantiate on his claim. That as such his averments

were premised on speculation and the application ought to be denied. It is now settled that an order of stay of execution cannot be granted as a matter of

15 course or based on mere speculation. The threat must be a direct peril, immediate and impending and not merely remote, uncertain, or contingent. An order of stay will issue only if there is actual or presently threatened execution. (See: *Junaco*

18 *(T) Ltd & 2 others v DFCU Bank Ltd, HCMA No. 0027 of 2023 (Mubiru J)& Paul Barozi & Anor v Christopher Nicodemus Winyi, HCMA No. 027 of 2023*). Considering the significant effect of a stay of execution of a decree of court in

- 21 terms of denying a successful party of the fruits of litigation, a stay is only granted where there is a serious threat of execution. There should be unequivocal evidence showing that specific verifiable steps have been taken by the respondent to convey - 24 the imminent reality of execution of the decree. Steps that demonstrate a serious expression of intent to execute include; extracting the decree, presenting and


having a bill of costs taxed, applying for issuance of a warrant of execution and issuing a notice to show cause, why execution should not issue. (See: *Junaco (T)*

#### 3 *Ltd supra)*.

In the motion, the first fear expressed by the applicant was that the respondent had taken efforts to have the title comprised in Bunyangabo Block 76, plot 3 cancelled

- 6 as directed by court. The respondent in his affidavit in reply stated that the said ground is overtaken by events since the cancellation was done on 9th May 2024. The respondent attached annexure 'R2' being a search report stating that the title in - issue was cancelled on 9 9 th May 2024. I cannot therefore purport in the current ruling to stay what already took place. Therefore, there is no threat at all, and if any, it was overtaken by events. - 12 Further to the above, the applicant also indicated that the respondent had already sold off part of the suit land and he saw people whom he suspected had bought the same inspecting the land. That he had fears that his land would also be sold unless - 15 a stay is granted. It is clearly discernable from that averment that what animated the current application was merely fear and suspicions that execution could be commenced before his appeal is disposed. The applicant did not point at any step - 18 taken by the respondent to have the orders of court executed either in form of a bill of costs filed, a notice to show cause filed or any act to have the orders of court implemented. - 21 In my view the applicant did not table before court cogent evidence of acts by the respondent that posed a threat to his interests. Whereas he talked about a sale, there was no evidence to that end either in form of the sale agreement or an affidavit - 24 from anyone who either witnessed the sale or participated in the same. He stated that he saw people inspecting the land whom he suspected were buyers. Court


cannot base its decisions on mere suspicions that may turn out to be untrue. There is no evidence of any execution process which was commenced by the respondent

- 3 to have him evicted from the portion of the suit land that he is occupying. I am not convinced on the basis of the evidence presented by the applicant that there is a serious threat of execution. Therefore, the applicant failed to prove this - 6 ground. As to whether the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted, I find that the appeal can go on and any damage that the applicant may suffer, such as selling the portion of - 9 land in his possession, can be compensated by an award of damages in the event that his appeal succeeds.

Therefore, whereas the application was brought without inordinate delay and the

- 12 applicant proved that he had appealed, that is not sufficient to warrant an order for stay of execution which has never been commenced and I am not satisfied that the evidence presented warrants the grant of a stay of execution. In the result, I dismiss - 15 this application with costs awarded to the respondents. It is so ordered.


18 Vincent Wagona **High Court Judge FORTPORTAL** 21 **DATE: 17/10/2024**