Kiiza v Emojong (Civil Application 130 of 2024) [2024] UGCA 220 (21 August 2024)

# THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### **CIVIL APPLICATION NO. 130 OF 2024**

(*Arising from Misc. Application No. 160 of 2021*)

$AND$

(Arising from $IICT-03-cv-ca-005$ of 2023) (Arising from Mayuge Magistrate Court Civil Suit No. 26 of 2019)

**BETWEEN**

KIIZA SANYU ....................................

#### **VERSUS**

<table>

EMOJONG JOHN....................................

# RULING OF CHRISTOPHER GASHIRABAKE, JA (SINGLE JUSTICE)

#### **Introduction**

- 1] This application was brought under Rules $6(2)$ and 43 of the Judicature (Court of Appeal) Rules SI 13-10, for Orders that; - a) An order doth issue for a stay of execution of the judgment and taxation entered by Hon Dr. Justice Winfred N Nabisinde judge of the High Court of Uganda at Jinja on the 28th day of April 2023 pending the hearing and determination of the Applicant's Appeal. - *b) Costs of the application be provided for.* - 2] The application is premised on the grounds as: - a) That the applicant was sued by the respondent vide Civil Suit No. 26 of 2022 in the Chief Magistrates Court of Mayuge, whereupon the

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applicant lost the case and being dissatisfied applied against the judgment, orders, and decree of the court in the high court at Jinja.

- b) That the applicant being dissatisfied with the judgment and orders of the first appellant court vide HCT-03-CV-CA NO.005 OF 2022 filed *a second appeal in the Court of Appeal.* - c) That the appeal before the court of appeal is meritorious, has a high $c$ chance of success and the same is not frivolous. - d) That the applicant applied in the high court of Uganda at Jinja for a stay of execution as directed by the Court of Appeal Rules but the same was dismissed. - e) It would be in the interest of substantive justice and equity if this Honourable Court grants orders for a stay of execution because failure to do so will render Court of Appeal Civil Appeal No. 0521 of 2023 pending before the Court of Appeal of Uganda nugatory. - f) That the Appeal shall be rendered nugatory if the order for stay of execution is not granted. - g) That this Application was brought without delay. - 3] The application was opposed by an affidavit sworn by Mr. Emojong John on grounds that this application is incompetent, misconceived, lacks merit, and ought to be dismissed with costs to the respondent.

#### Representation

4] Mr. Robert Muhereza represented the Applicant. The Applicant was not in Court. Mr. Kyeyago Edward represented the Respondent. The parties filed written submissions.

### **Submissions for the Applicant**

5] Counsel for the Applicant submitted that the issue to be determined by this Court was to establish whether there is sufficient cause for this Honourable Court to issue an Order for Stay of Execution. Counsel argued that the Applicant has proved that there is a substantive application before this Court. On the imminent threat from the Respondent, counsel submitted that the Applicant is living out of his home as an arrest warrant was issued by Mayuge Police Station to arrest him. Counsel argued further that there is a substantive Appeal vide Civil Appeal No.306 of 2023 that has a high chance of success.

- 6] It was argued further that there was no delay. A Notice of Appeal was filed in the High Court of Jinja at Jinja on the 2<sup>nd</sup> of May 2023 and a Memorandum of Appeal was filed in this honourable Court on the 29<sup>th</sup> day of July 2023. It was submitted that the Applicant complied with the Rules of this Court by filing a stay of execution in the High Court of Uganda at Jinja but the same was dismissed and thus the substantive application before this Court. Counsel cited **Hon Theodore Ssekikubo** and 3 Others v The Attorney General and 4 Others, Constitutional Application No.6 of 2013, and Gashumba Maniraguha v Sam Nkundiye [2015] UGSC 7 - 7] It was argued further that the Applicant would suffer irreparable damage or that the appeal would be rendered nugatory if a stay was not granted. It was submitted by the Applicant in his affidavit in support of the application, that the Respondent had taxed the bill of costs and that the Respondent is hunting for him to execute the High Court judgment.

### **Respondent's written submissions**

81 Counsel for the Respondent submitted that there are various considerations that the applicant is bound to satisfy before this court can

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exercise its discretion to grant an application for a stay of execution pending appeal. Counsel cited Dr. Ahmed Muhamed Kisuule v Greenland Bank (in liquidation), Supreme Court Civil Application No.07 of 2010, Hon Micheal Mabikke v The Law Development Centre, Supreme Court Civil Application 14 of 2015, and Nahurira Haam Aka Kashaba 2 others v Lwanga Mike, Court of Appeal Civil No.1021 of 2023.

- 9 Counsel for the Respondent did not dispute that the Applicant lodged in this Court a Notice of Appeal and subsequently the appeal itself vide Civil appeal no.306 of 2023 which was filed on 29<sup>th</sup> of July 2023. - Counsel submitted regarding the likelihood of success of the appeal $10$ that since the applicant is leading evidence by deponing an affidavit in support of this application, the applicant must plead these averments that the appeal is not frivolous and also lead cogent evidence in the affidavit of support by making averments highlighting that there are serious questions of law and fact which the pending appeal raise which the applicant failed to plead and prove in his affidavit in support of this application. Counsel for the Respondent argued that the applicant ought to have pleaded in his affidavit the serious questions of law or fact that the appeal is raising rather than just mentioning that his appeal has higher chances of success and is not frivolous. - Counsel for the Respondent argued that the position of the law is $[11]$ that this Court has to look at Judgments of the lower Courts to see the reasons why a suit or appeal went against the applicant/intending

appellant. Counsel cited J. W. R Kazoora v M. S L Rukuba, Civil Application 49 of 1991,

- Counsel invited this court to review annexures A, B, D1, and D2 $121$ attached to the Respondent's affidavit in reply/opposition to the application. Counsel argued that this court will find that the applicant's appeal is frivolous and has no likelihood of success. Counsel further submitted that the appellant's appeal is frivolous and has no higher chance of success. Counsel argued that the grounds of appeal raised by the applicant in his Memorandum of Appeal filed in this were raised without reasonable cause in law or equity and cannot be supported by good faith arguments leading to a conclusion that the pending appeal has no merit as it is frivolous. Counsel submitted that the sole purpose of the pending appeal is to delay or frustrate the respondent from enjoying the fruits of his Judgment as the very grounds raised in the Memorandum of Appeal filed by the applicant were canvassed by the High Court on appeal and the High court concurred and confirmed. - Counsel submitted that the Applicant had not pleaded or led cogent $\overline{13}$ evidence in his affidavit in support of the application that he will suffer loss. damage/substantial Counsel cited **Tropical** irreparable Commodities Supplies Ltd v International Credit Bank Ltd (in liquidation) $(2004)$ 2 EA 331 which was quoted with approval in civil Application No.1021 of 2023 Nahurira Haam Aka Kashaba & 2 Ors v Lwanga Mike. The Court defined what amounts to Substantial loss to mean the loss that cannot be quantified by any particular monetary compensation or that there is no exact mathematical formula to compute substantial loss. Counsel further submitted that the Applicant did not $5$ | Page

adduce any evidence that if this Court does not grant a stay of execution, the Appeal will be rendered nugatory.

- $[14]$ Counsel submitted that the respondent had incurred substantial costs in defending the appeal before this Court, the High Court, and the lower Court, therefore counsel prayed that this Court invokes its power under rule $105(3)$ of the rules of this court to order the applicant to furnish further security for costs in the sum of UGX $100,000,000/$ = (one hundred million shillings) for payment of the past costs relating to matters in question in the appeal. Prayed that the same be deposited in Court. - On whether the application was delayed, counsel submitted that $15$ this application was filed in this court on 6<sup>th</sup> March 2024, and yet the applicant filed a Notice of Appeal on 2<sup>nd</sup> May 2023. Counsel submitted that if there was no delay by the Applicant in filing this application as he claims, the Applicant ought to have filed this application immediately after the dismissal of Misc. APP No.160 of 2023 which was dismissed in September 2023. The above imputes delay on the part of the applicant to institute this application. - Counsel stated that the Applicant had failed to fulfill the $16$ requirements for the grant of stay of execution. Counsel prayed that this application be dismissed. ## **Consideration**

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- The principles upon which the orders to stay execution are granted $171$ by the Appellate Courts were re-stated by the Supreme Court in Theodore Ssekikubo & Others v A. G, SC Constitutional Application, [2013] UGSC 21 (10 October 2013), as follows: - I. The Applicant will suffer irreparable damage or the appeal will be rendered nugatory if the order is not granted. - II. The appeal has a strong likelihood of success or a prima facie case of the right to appeal - III. If 1 and 2 criteria have not been established, the Court must consider where the balance of convenience lies; and - *IV. The application has been brought without delay.* - The power of this court to grant orders to stay execution is 18] provided for under Rule 6 (2) (b) of the Rules of this Court as follows:

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

$(a)$ ....

(b) in any civil proceedings, where a notice of appeal has been lodged by rule 76 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just.

Rule 76 of the same Rules provides, in part, as follows: $19]$

*76. Notice of appeal in Civil Appeals.*

(1) Any person who desires to appeal to the Court shall give notice in writing, which shall be lodged in duplicate with the registrar of the High Court.

(2) Every notice under sub-rule (1) of this rule shall, subject to rules 83 and 95 of these Rules, be lodged within fourteen days after the date of the decision against which it is decided to appeal.

- Counsel acknowledged the fact that the Applicant lodged a Notice 201 of Appeal vide Civil Appeal No. 306 of 2023 by Rule 76 of the Rules of this Court as required under Rule $6(2)$ . - On whether the appeal has a likelihood of success, counsel for the 211 respondent argued that the memorandum of appeal filed on the 29<sup>th</sup> of July 2023, raised grounds without legal basis and equity, hence cannot be supported by good faith arguments. This Court has offered guidance in determining whether the appeal has a likelihood of success in **Haruna** Sentongo v I & M Bank LTD (formerly) Orient Bank (U) LTD, (Civil Application No. 113 of 2023) [2023] UGCA 153 19 May 2023. While relying on Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] e KLR, the Court of Appeal held that;

"(vii). An arguable appeal must not necessarily succeed, but one *which ought to be argued fully before the Court; one which is not frivolous. (viii). In considering an application brought under Rule* $5(2)(b)$ the Court must not make definitive or final findings of either fact or law at that stage as doing so may embrace the ultimate hearing of the main appeal"

- 22] This court in **Haruna Sentongo** (supra), went ahead and stated that it was not necessary at this stage to pre-empt considerations of the matters of the full bench in determining the appeal. The Court used the memorandum and the questions by the Appellant to establish whether the appeal was not frivolous. Likewise, on a perusal through the Memorandum of Appeal, the appeal raises issues regarding the award of damages and visit of the locus in quo. These have a legal basis. I therefore do not agree with the submission of the Respondent, that the grounds of appeal do not have a legal or equitable basis. It is therefore my considered view that the Applicant has made out a *prima facie* case. - In determining whether an applicant shall suffer irreparable 23] damages, the Court must be satisfied that if the Applicant succeeds on appeal, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the Defendant's actions. See American Cyanamide v Ethicon [ 1975]1 ALL E. R. 504. In his submissions counsel submitted that according to paragraph 4 of the affidavit of support of the application, the process of carrying out execution had started. The decree had been filed, and the bill of costs was fixed and taxed on the 14<sup>th</sup> day of July 2023 in the High Court Jinja. It has to be noted that taxation alone does not demonstrate that the Appellant would suffer irreparable damage if the application is not granted. I agree with the submissions of counsel for the respondent, that the applicant must adduce cogent evidence that if the application is not granted the applicant would suffer irreparable damages that cannot compensated in monetary terms The applicant has not also demonstrated how the appeal would be nugatory if the application is not granted.

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- As to whether this application was filed without delay, the decision $24$ that is sought was handed down on the 28<sup>th</sup> day of April 2023 the Notice of appeal was filed in the High Court on the 2<sup>nd</sup> of May 2023 and the Memorandum of Appeal was filed in this honourable Court on the 29<sup>th</sup> day of July 2023. Given that the Applicant sought to exhaust his remedies in the lower court first, where he filed the first application before this one, I find that this application was filed without unreasonable delay. - 251 The Applicant did not make mention of security of due performance however it has been held that the parties asking for a stay should be prepared to meet the conditions set out in Order XXXIX Rule $(4)(3)$ (then) of the Civil Procedure Rules. The Order is currently Order 43(4) (c) of the Civil Procedure Rules No. 71 of 2014. See **Lawrence** Musitwa Kyazze v Eunice Busingye SCCA No. 18 1990. This is to the effect that no order for a stay of execution shall be made under sub-rule $(1)$ or $(2)$ of the rule unless the court making it is satisfied that the security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him or her. From the evidence on record, the applicant has not provided any security for the due performance of the decree. - Since there is a Notice of Appeal, filed without unreasonable delay 26] and the grounds of appeal raised triable issues, this court exercises its discretion and grants the application to stay of execution. Costs shall abided the outcome of the Appeal

I so order.

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

$\mathcal{L}$ $\overline{\cdots}$

**C. GASHIRABAKE**

**JUSTICE OF APPEAL**

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