Kiyaga Edward v Christy Mary Namakula Kapere (Civil Application No. 1293 of 2023) [2025] UGCA 220 (2 July 2025)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA **CIVIL APPLICATION NO. 1293 OF 2023** (ARISING FROM CIVIL APPEAL NO. 0254 OF 2023) (ALL ARISING FROM HCT-CIVIL SUIT NO. 322 OF 2022)

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KIYAGA EDWARD:::::::::::::::::::::::::::::::::::

**VERSUS**

CHRISTY MARY NAMAKULA KAPERE:::::::::::::::::::::::::::::::::::

Alias NAMAKULA KAPERE MARY

#### BEFORE: HON. JUSTICE MUSA SSEKAANA, JA

*(Sitting as a Single Justice)*

### **RULING**

This application was brought by way of Notice Motion under Rules 2(2), 6(2) (b), 43 and 44 of the Judicature (Court of Appeal Rules) Directions S. I 13-10, Section 37 of the Judicature Act, Cap 16 seeking the following Orders that;

1. Execution of the Decree and Judgement Vide High Court Civil Suit No. 026 of 2023 be stayed pending the hearing and final disposal of Civil Appeal No. 0254 of 2023.

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## 2. The cost of this Application be provided for by the respondent.

The grounds in support of the application are briefly set out in the Notice of Motion and the affidavit in support sworn by KIYAGA EDWARD, briefly stating that:

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- <sup>5</sup> 1. That the applicant is aggrieved and dissatisfied with the judgement/ decision and orders of the High Court of Uganda at Hoima by Hon. Justice Byaruhanga Jesse Rugyema Vide Civil Suit No. 026 of 2023 - 2. That the application appealed against the High Courtjudgement under Civil Appeal No. 254 of 2023, which is pending before this court I() - 3. That the applicant first applied for stay in the High Court under Misc application No. HTC-16-LD-MA-101 OF 2023, but the same was dismissed by the trial Judge Hon. Justice Byaruhanga Jesse Rugyema. - 4. That there is eminent threat by the respondent in executing the Decree in civil suit No. 026 0f 2023. - 5. That the stay of execution is necessary for attainment of the ends of Justice. - 6. That the application is made within a reasonable time - 7. That the applicant's appeal has got high chances of success since the respondent's certificate of title was illegally and fraudulently acquired. - 8. That the applicant is likely to suffer substantial loss if a stay of execution is not granted. - l0 9. That lt is just and equitable that, stay of execution restraining the Respondent from evicting the Applicant from the suit land be granted to maintain the status quo pending the determination of the Appeal

The respondent on the other hand filed an affidavit in reply to the application stating;

l5 1. That the application is opposed as being bad in law and untenable and it does not disclose any grounds for stay of execution of the judgement and decree in High Court Civil Suit No, 026 of 2023 pending the hearing and final determination of Civil Appeal No. 254 of 2023 in this court.

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- 2. That this application is incurably defective on account of the following: - . The application has been overtaken by events, is misconceived, moot and is not maintainable at law and the Applicant is not entitled to any reliefs as sought or at all; - o The application is defective for non- service of court process within the legally prescribed time.

3. That the applicant filed the present application in the Court of Appeal seeking the unconditional stay of enforcement and execution of orders of the ruling arising from Civil Suit No. 026 of 2023 by the respondents pending the hearing and disposal of the applicant's appeal and the costs of the application.

- 4. That on 21" February 2024, the Registrar endorsed, sealed and issued the application to the Applicant for service on to the Respondent. - 5. That the applicant neither served this application nor their written submissions on to the Respondent's lawyers until 7th April 2025. - 6. That the failure to serve the application on to the Respondent within the time prescribed by law constitutes an illegality and warrants the application to be struck out and dismissed with costs. - 7. That the applicant instituted Civil Suit No. 026 of 2023 against the Respondent for alleged fraudulent registration of the land comprised in FRV MAS 54 Folio 23, Plot 5 Kamurasi Road Hoima Municipality in the High Court of Uganda. - 35 8. That on 2nd March 2023, His Lordship Honourable Justice Byaruhanga Jesse Rugyema delivered judgement in favour of the Respondent wherein the Court inter alia, declared the Respondent the rightful owner of the suit land and held that an order of vacant possession issue in favour of the Respondent.

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<sup>5</sup> 9. That the respondent commenced execution of Civil Suit No. 026 of 2023 and the applicant was issue a notice to show cause why the execution should not issue.

1O. That the applicant applied for stay of execution vide Misc. Application No. 101 of 2023 in the High Court of Uganda at Hoima and the same was determined and dismissed with costs.

LL. That the respondent applied and obtained a warrant of eviction vide Execution Miscellaneous Application No. 01.7 of 2024 and engaged Amani Trust Auctioneers and Court Bailiffs who on 7th April 2025, executed the warrant in the presence of the applicant's agents, District Police Commander and Scene of Crime Officer Hoima District'

12. That the respondent is comprised in FRV MAS Municipality. currently in possession of the suit property 54 Folio 23, Plot 5 Kamurasi Road Hoima

13. That the present application has therefore been overtaken by events as the execution has already taken place and the said execution cannot be reversed by the present application for stay of execution in this Honourable Co u rt.

l.4. That the appeal lodged by the Applicant vide Civil Appeal No. 254 of 2023 has no likelihood of success founded on the facts and the law.

- 15. That the applicant is not the lawful owner of the suit land and has no claim over the suit land and shall not suffer any irreparable loss or damage if the application is not granted. - l5 16. That the applicant has neither undertaken to deposit nor deposited any security for due performance of the decree required before grant of an application for stay of execution.

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17. That the applicant has not shown any sufficient cause for the grant of order for stay of execution, 5

#### Representation

At the hearing, the applicant was represented by Counsel Amaniyo Marie Mercy to and Counsel Esau lsingomator the respondent.

## Both parties filed written submissions

Counsel for the Applicant submitted that there is evidence of the applicant having been vigilant in that he filed hiss Notice of Appeal and subsequently filed the subsequently filed the substantive Civil Appeal No. 254 of 2023 within the 15 mandatory period in compliance of the rules governing this court. The substantive Appeal is pending resolution by this court.

Counsel for the Applicant noted that it is not contested by the respondent that she initiated execution proceedings and a warrant of vacant possession has already been issued by the High Court This confirms the claims against the

20 respondent of existence of an imminent threat of execution of the High Court decision and orders.

That the Applicant filed an appeal in the court of Appeal vide Civil Appeal No. 254 of 2023, challenging the .ludgement and orders of the High Court where the respondent was declared the rightful owner of the suit land and vacant 25 possession Order alongside other reliefs. ln the Appeal we are challenging the circumstances under which the respondent converted the cancelled lease comprised under LWB/3320, plot 5 at Kamurasi road in Kijungu Cell, within Hoima Town, in to Freehold without Soing through the due process of land registration in contrary to land Regulations, without the inspection and recommendation of the

30 Area land Committee and the illegal purchase of the suit land by respondent from (Kassam Mohamed & Sons), whose statutory lease has expired , hence no title passed.

The applicant's counsel averred that the appeal lying in this court has arguable issues on appeal, going by the grounds of appeal attached on the Affidavit in

i5 support of the application marked annexture "B", there is a strong likelihood of success, as it raises various evidential and legal issues which merit the courts

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5 consideration. The appeal rises very pertinent legal issues that warrant serious judicial consideration by this court. It is our prayer that court finds the applicant's appeal with a likelihood of success.

The Applicant's Counsel stated that he has clearly demonstrated and attached annexture marked "F" "G" and "H" of the eviction warrant and police clearance 10 letter, which shows that the respondent is in final stages of the execution process against the applicant, which process court has to halt pending determination of the pending Appeal. That in case the execution takes place, the applicant stands to suffer irreparable harm, in so far as the applicant's property on the suit land shall be demolished by way of giving vacant possession to the respondent. It is

evident that, for the past fourty years, the applicant has been in possession of the suit property since 1978, while using the same as his main source income for his livelihood.

The applicants counsel highlighted that in reference to the instant case, the suit property is a developed land with a residential house and some servant quarters

- where the applicant gets rent for his sustenance and livelihood in his advanced 20 age. The applicant is eminent threat of execution of the decree in Civil Suit No. 26 of 2023 and in the process on giving vacant possession, there is a likelihood of placement and demolition of all the structures on the suit land, which would amount to a reasonable substantial loss to the applicant and the refusal to stay - the execution would inflict great hardships to the applicant than it would avoid.

The Applicant's counsel contended that on account of the glaring irregularities raised herein above, the respondent's warrant of vacant possession/eviction be stayed as it was not properly granted and the same cannot be enforced.

It is not in contention that, the applicant filed an application for stay without any 30 unreasonable delay; As he first filed Misc. Application No. 101 of 2023 in the High Court at Hoima, which was dismissed and thereafter he again filed this instant application before this Honourable Court, which we have been pushing for fixing until we have succeeded.

Counsel for the applicant stated that having satisfied the court on balance of probabilities that sufficient grounds exist for grant of an Order for stay of 35 execution of the decree and Orders in HCCS No. 026 of 2023, pending the

$6$ | Page 5 determination of Court of Appeal Civil Appeal No' 254 ot 2023; this Application be granted.

ln response, the respondent submitted that the applicant seeking a stay of execution must demonstrate, on a balance of probabilities, that the circumstances of the case justify such orders. The law imposes this burden on the

10 basis that not all appeals and orders warrant a stay of execution pending the determination of appeal.

"The principles under which an application for stay of execution can succeed which were well espoused in the case of Lawrence Musiitwa Kyazze Vs Eunice Busingye (Supreme Court Civil Application No. 18 of 1990) but more pronounced l5 in the Supreme court case of Hon Theodore Ssekikubo and ors vs The Attorney General to include;

- 1. That the applicant must show that he lodged a notice of appeal. - 2. That substantial loss may result to the applicant unless the stay of execution is granted. - 20 3. That the application has been made without unreasonable delay. - 4. That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

This court in Kyambogo University Prof. lsaiah Omolo Ndiege (Supra) expanded the list to include:

- 25 1. There is serious or eminent threat of execution of the decree or order and if the application is not granted, the appeal would be rendered nugatory. - 2. That the application is not frivolous had has a likelihood of success. - 3. That refusal to grant the stay would inflict more hardship that it would avoid." - 30 Counsel for the respondent contended that the judicial approach to applications for stay of execution pending appeal considers the tears as conjunctive thereby requiring the application to satisfy one ground is sufficient to deny the Applicant an order for stay of execution. ln the present case, the Application does not meet all the requirements for the grant of a stay of execution.

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5 That the law requires that an applicant for an order of stay of execution pending appeal demonstrates a reasonable likelihood of success in their appeal, ensuring that the appeal is not frivolous.

The respondent counsel submitted that an order of execution pending appeal is intended to preserve the subject the subject matter of the dispute, ensuring that

10 the appellant's right to appeal is safeguarded and that the appeal, if successful, is not rendered nugatory [See Lawrence Musiitwa Kyazzee v. Eunice Busingye (supra)].

That the position of the law mandates the court to balance the risk of substantial loss to the applicant with the right of the Respondent to enjoy the fruits of their

- 15 litigation. This inherent right of the decree- holder to enjoy the fruits of litigation was affirmed by the Supreme Court in Stanbic Bank Uganda Limiteds Vs Abatya Agencies Limited (Supreme Court Civil Appeal No. 3 of 2012) where it held as trite, that once a judgement is given, the successful party is entitled to enjoy the fruits of the judgement. - 20 Counsel for respondent averred that "Substantial" though cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when his or her case and is deprived of his or her property in consequence. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the - applicant as the successful party in the appeal. The loss ought to be of a nature which cannot be undone once inflicted.

In the instant case, the applicant has not shown proof of the substantial loss that they will suffer. The respondent is currently in possession of the suit property comprised in FRV MAS 54 Folio 23, Plot 5 Kamurasi Road Hoima Municipality. The

30 suit land has an ascertainable value and physical location, the applicant can be compensated or restored on the land in the unlikely event that their appeal is successful.

It is apparent that the purpose of this application was merely intended to further delay the matter and prevent the Respondent from realizing the fruits of a

35 successful litigation.

s On this premise, the respondent submitted that the applicant failed to prove, on <sup>a</sup> balance of probabilities, that they will suffer substantial loss which will render the appeal nugatory.

ln conclusion, counsel for the respondent submitted that the present application has been overtaken by events, rendering it moot, academic, and hypothetical as l0 the execution the applicant seeks to stay has already happened

We submit that the present apptication should be dismissed with costs to the Respondent.

## Consideration of Court /Analysis.

- ls A stay of execution pending appeal is a crucial legal mechanism designed to preserve the subject matter of the dispute, ensuring that an appellant's ri8ht to appeal is safeguard and that the appeal, if successful, is not rendered nugatory, This means that if execution were allowed to proceed, events might occur are irreversible, thus making any subsequent appeal meaningless. - 20 The power to grant a stay of execution is vested in both the High Couft and the Court of Appeal. The High Court can grant a stay under Section 98 of the Civil Procedure Act Cap 282 and Order 43, rule 4 of the Civil Procedure Rules, to ensure that justice is achieved.

Specifically Rule 6(2) (b) of the Rules of this Court which provides that:

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

> b) in any civil proceedings, where a notice of appeal has been lodged following rule 76 of these Rules, order a stay of execution - -on such terms as the couft may thinkjust",

The Court of Appeal, meanwhile, derives its powers from this rule and Rule 2(2) of the Judicature (Court of Appeal Rules) Directions S.l 13-10. While both courts have concurrent jurisdiction, it is a general rule that such applications should first be filled in the High Court, and only in rare or exception circumstances However, the

law recognizes that not all appeals or decrees warrant a stay of execution. l5

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- 5 I agree with the authorities cited by both counsel regarding the conditions to be met to grant an application for a stay of execution pending appeal as thus. "The principles under which an application for stay of execution can succeed which were well espoused in the case of Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Application No. 18 of 1990) but more pronounced in the 10 Supreme Court case of Hon Theodore Ssekikubo and Ors v The Attorney General to include: - 1. That the applicant must show that he lodged a notice of appeal. - 2. That substantial loss may result to the applicant unless the stay of *execution is granted.* - 3. That the application has been made without unreasonable delay. - 4. That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

This court in Kyambogo University Prof. Isaiah Omolo Ndiege (Supra) expanded the list to include:

- 1. There is serious or eminent threat of execution of the decree or order $20$ and if the application is not granted, the appeal would be rendered nugatory. - 2. That the application is not frivolous had has a likelihood of success. - 3. That refusal to grant the stay would inflict more hardship that it would avoid."

In this case an applicant seeking a stay of execution must meet the conditions as set in the above authorities.

In the instant case, it is undisputed that the applicant Lodged Civil Appeal No. 254 of 2023, which is pending before this Court.

- 30 The applicant has articulated a potential for significant personal loss, including loss of livelihood and demolition of his home. However, the respondent effectively countered by asserting that the property has an ascertainable value and that the applicant could be compensated or restored if the appeal were to succeed. For a stay to be granted, the loss must be over and above the ordinary - 35 loss resulting from litigation, and the applicant must demonstrate that the restoration or compensation would be impossible.

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- 5 On the unreasonably delay, this is the most decisive factor in this application. The respondent provided clear evidence that the execution of the decree in Civil Suit No. 026 of 2023, specifically the eviction, was completed on April 7<sup>th</sup>, 2025, and she's now in possession of the suit property, an application of this nature its preventative. The applicant's promptness in seeking a stay first in the High Court - and then swiftly bringing the matter to this Court after dismissal demonstrates a $10$ constant effort to prevent execution, thereby satisfying the requirement that the application itself was brought without unreasonable delay following the High Court decision.

The applicant's counsel conceded that indeed partial execution has already issued 15 and the respondent's is in possession and that there is a partial execution which has been done. Since it is true that execution has indeed taken place, then the application for stay of execution by way of eviction is a futile exercise which cannot be granted.

The court of appeal cannot order a stay of execution unless it is certain that such 20 execution has not taken place. In the circumstances, the court should only grant a stay for orders which have not yet been executed by the respondent.

Applicant's counsel raised arguable issues on appeal, particularly concerning the alleged fraudulent acquisition of the respondent's certificate of title and noncompliance with the due process of land registration. These claims involve

25 serious evidential and legal issues that warrant judicial consideration by the appellate court.

The respondent correctly pointed out that the applicant has neither deposited not undertaken to deposit security for the due performance of the decree. This Court has the discretion to impose it as a term for granting the stay, rather than making 30 it an absolute bar, especially when other strong grounds for granting stay exist. Since the respondent has already successfully executed part of the decree, it would not fair to impose any obligation to give security for due performance of the balance of the decree.

Therefore, to safeguard the applicant's right to appeal and to prevent a situation 35 where the appeal is rendered nugatory should it succeed on the fundamental legality of the execution, it is just and equitable that a stay be granted. The

5 purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so that the rights of an appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory.

A "stay" does not reverse, annul, undo or suspend what already has been done or 10 what is not specifically stayed no pass on merits of orders of the trial court, but merely suspends the time required for performance of the particular mandate stayed to preserve a status quo. See *Blacks Law Dictionary* 6<sup>th</sup> edition page 1413; Re: Timothy Riziki Hopkins Civil Application No. 194 of 2008

This court issues an order of stay pending the determination of the appeal 15 specifically on the orders which have not yet been executed (decretal awards).

This court has not reversed the eviction of the applicant and the status quo which is preserved is as at the time of determination of this application.

Costs shall be in the cause.

I so order

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**MUSA SSEKAANA** JUSTICE OF APPEAL

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