Kiwanuka v Nakatumba (Civil Application 566 of 2024) [2024] UGCA 334 (2 December 2024)

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### Before: Margaret Tibulya, JA

# CI\/IL APPLICATION NO. 566 OF 2024

#### (Arising from Civil Appeal No. 1482 of 2023)

sAM KIWANUKA WALUSIMBI .......oo....................o.o.o.........,.. APPLICANT

#### VERSUS

KATE NAKATUMBA KIWALA TAMALE ........ !.................. RE SPONDENT

### RULING OF MARG T TIBULYA. JA

This application was brought under rule 6 (2),43(l) &.(2), rule 44(l) of this court's rules and O.43 of the Civil Procedure Rules seeking for orders that: -

- I. The execution of the order arising out of High Court Miscellaneous Application No. 338 of 2024, which arises out of Civil Suit No.039 of 2005 be stayed and or set aside pendingthe determination of Civil Appeal No. 1482 of 2023. - II. Costs of the application to be provided for.

The grounds of the application are contained in the affidavit in support but briefly are that: -

the applicant filed Civil Appeal No. 1482 of 2023, which has a high likelihood of success. I

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- ii. in Februory, 2024,the applicant sought and was granted stay of execution by the High Court with conditions for deposing of security for costs amounting to shs. 100,000,000/:, in addition to depositing a Certificate of Title to the suit land. - iii. the applicant shall suffer irreparable damage if execution proceeds.

The application is supported by the affidavit of the applicant expounding on the above grounds.

The respondent filed an affidavit opposing the application. The respondent contends that the application is frivolous, incompetent and an abuse of court process. Further that the applicant failed to comply with the orders of the High Court in Civil Application No. 338 of 2024 in which an order of stay of execution was granted with conditions that the applicant deposits shs. 100,000,000/: and the Certificate of Title of the suit land with court.

The applicant filed an affidavit in reply contending that he had complied with the conditions imposed by the High Court. He contends that by the time of hearing this application he had deposited 100,000,000/: and the Certificate of Title as directed by court.

The Applicant submits that the Registrar High Court has nonetheless issued a ruling authorizingthe execution of eviction orders under the lower court's judgment.

#### Analysis.

That the lower court issued a conditional order of stay of execution is common ground. The applicant is, however dissatisfied with the conditions set by the High Court which were that he deposits 100,000,000/: and the certificate of title to the suit land. He maintains that the amount of money, l00m/: is high on his part and requests that this court varies the lower courts order.

He cites Emmanuel Kato vs. Muyanja Mbabali, CACA No. 345 of 2018 in which this court stated that an applicant who is not satisfied with the conditions for stay of execution may apply for review or appeal the same.

Since there is a subsisting order of stay of execution issued by the High Court, an application for an order of stay of execution would be moot.

It is on record that the applicant has already complied with the conditions which he is now complaining about, meaning that the order as granted by the lower court has been fully complied with.

The complaint that one of the conditions, i.e., the order that the Applicant deposits $100m/$ = is harsh can no longer be sustained since the money has already been deposited in court. I therefore find no reason for varying the order as issued. The application is therefore rejected.

Dated at Kampala this .................................... $\ldots 2024.$

**Margaret Tibulya Justice of Appeal.**