Kyaligonza v Mugabe and Others (MISC. CIVIL APPEAL NO. 07 OF 2022) [2025] UGHC 238 (3 January 2025)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT HOIMA**

### **MISC. CIVIL APPEAL NO. 07 OF 2022 (Arising from Misc. Application No. 53 of 2020 and Civil Suit No.28 of 2009)**

**KYALIGONZA STEVEN :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

### **VERSUS**

### **1. MUGABE YUNUS**

- **2. ASUMAN MUGENYI** - **3. SUNDAY AYUB** - **4. NASUR TUKASIIMA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

### *Before: Hon. Justice Byaruhanga Jesse Rugyema*

# **RULING**

- [1] In this application/Appeal brought under **O.50 r.8 CPR**, the Appellant is seeking orders that: - a) The Ruling and Orders made in **Misc. Application No.53 of 2020** by the Assistant Registrar, H/W Sayuni David staying execution of the decree in **HCCS No.028 of 2009** be set aside for being a nullity. - b) The Ruling in **Misc. Application No.53 of 2020 arising from HCCS No.028 of 2009** for stay of execution pending the intended appeal be written and delivered by a judge of this court. - c) Provision be made for costs of this appeal. - [2] The grounds of this appeal are set out in the affidavit of **Kyaligonza Steven,** the Appellant sworn in support of the application hereof which briefly are: - 1. That the Appellant was the Respondent in **Misc. Application No.53 of 2020** for stay of execution of the judgment in **HCCS No.028 of 2009** of which he was the plaintiff and decree holder.

- 2. That the Ruling in the above application allowing stay of execution pending appeal is a nullity because it was written and allowed by the learned Assistant Registrar of this court without jurisdiction. - 3. That the learned Assistant Registrar of the High court has no jurisdiction to stay execution of the decree in the suit heard by a judge who made the judgment. - 4. That it is in the interest of justice that a ruling made by the court's Registrar who had no jurisdiction to be set aside for being a nullity. - [3] In opposition of the application, **Mugabe Yunus** (1st Respondent) deposed and filed an affidavit in reply on his own behalf and on behalf of the other Respondents thus: - 1. That the Appellant threatened to execute against the Respondents when they had a pending appeal in the Court of Appeal and the Respondents applied for stay of execution pending appeal (which was granted by the Assistant Registrar of this court). - 2. That the present Application having been issued by court on 6/4/2022 was illegally served out of time and it is a nullity. - 3. That litigants cannot be punished for a mistake of court if any. - [4] As per the pleadings on record, the issues for determination in this application /appeal appear as follows: - *1. Whether the Application was served out of time.* - *2. Whether the learned Assistant Registrar erred in law and fact in entertaining an Application for and allowing a stay of execution of a decree and or judgment passed by a Judge.* - *3. Whether there is a pending appeal against the decision in HCCS No.2 of 2009 before the Court of Appeal.* - *4. What remedies are available to the parties.*

### **Consideration of the Appeal**

## **Issue No.1: Whether the Application was served out of time.**

- [5] As per the proceedings in this appeal, on 2/6/2022 in the presence of the Appellant and the 1st Respondent who deposed an affidavit opposing the application on his own behalf and on behalf of the other Respondents, the parties were given timelines to file their respective submissions in respect of this application/appeal. Whereas the Appellant complied with the directions of court of filing submissions, the Respondents did not file any. As a result, this court is proceeding to consider and determine this appeal without the input of the Respondents in terms of submissions. In the affidavit in reply, the Respondents contended that this application was issued by this court on **6/4/2022** but that it was illegally served unto the Respondents out of time and therefore, that it is a nullity. - [6] In response to the claim that this application was served unto the Respondents out of time, the Appellant contended in the affidavit in rejoinder that the Respondents have not attached proof of when they were served with the Application/Appeal. Indeed, upon perusal of the record, I have not been able to find any evidence that the Application was served upon the Respondents out of time or any basis for this court to be able to compute days and determine whether the application was served outside the 21 days as provided for under **O.5 r.1(2) CPR.** See **Kahunde Vs Atuhaire, HCMA No.23 of 2022** where it was held that timelines that apply to the service of summons in an ordinary plaint also apply to the service of applications. The burden is on the Respondents who assert that they were served out of time to prove so, **Sections 101-103 of the Evidence Act.** - [7] In the premises, I find the 1st issue in the negative. There is no evidence that the Application was served upon the Respondents out of time.

- **Issue No.2: Whether the learned Assistant Registrar erred in law and fact in entertaining an application for and allowing a stay of execution of a decree and/or judgment passed by a judge.** - [8] Relying on **O.43 r.4 (2) CPR, O.50 rr. 3 & 4 CPR** on the powers of Registrars and on the authority of **Timber & General Stores Ltd & Anor Vs Ismail Mugoda, HCCA No.133 of 2009,** counsel for the Appellant submitted that: - a) The learned Assistant Registrar who wrote the Ruling and delivered it on 15/3/2022 was not the court that passed the decree and judgment as provided for under **O.43 r.4 (2) CPR** and therefore, lacked the jurisdiction to issue a stay of execution of judgment and/or decree passed by the Judge, Hon. Justice Gadenya Paul Wolimbwa on 20/5/2020. - b) That powers of Registrars provided under **O.50 CPR** and expounded under **S. I No.1 of 2022 (powers of Registrars) Rules** do not include powers to handle the main application for stay of execution of a decree passed by a Judge. - [9] From the record, it is apparent that in **Misc. Application No.53 of 2020** for stay of execution of the decree in **HCCS No. 28/2009,** the learned Assistant Registrar was directed to give directions to parties and schedules for filing and serving of submissions. The Appellant complied and filed his submissions. Instead of the Judge, it is the learned Assistant Registrar, who wrote and delivered the ruling in the above application on 15/3/2022. Under **O.43 r.4(2) CPR**, it is provided thus:

*"Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing from the decree, the court which passed the decree may on sufficient cause being shown order the execution to be*

*stayed."*

Under **O.50 rr.4 & 4 CPR,** the powers of Registrars are limited to formal steps preliminary to the trial, handling interlocutory orders and formal orders for execution of decrees.

[10] When **O.43 r.4(2) CPR** is read together with **O.50 rr.3 & 4 CPR** and as expounded under **Practice Direction No.1 of 2001, (High Court Judicial Powers of Registrars) S. I No.2/2002,** it is clear that whereas the Registrar has powers or jurisdiction to entertain an interlocutory application for an interim order, **Burundi Tobacco Co. & Anor Vs B. A. T (U) Ltd, Court of Appeal Ref.22 of 2010**, the powers do not include handling of main applications for stay of execution of a decree passed by a Judge, see also **Mohamed Kalisa Vs Gladys Nyangire Karumu, CA Civil Ref, No.166 of 2013** and **A. G & Anor Vs James Mark Kamoga & Anor, SCCA No.8 of 2004.** In the earlier authority of **Lawrence Musiitwa Kyazze Vs Eunice Busingye, SCCA No.18 of 1990,** it was held that:

> *"an application for a stay should be made… to the judge who decided the case when judgment is delivered."*

[12] In the instant case, I find that the learned Assistant Registrar who wrote the Ruling in **Misc. Application No.53 of 2009** staying execution of the decree and judgment delivered by a judge in **HCCS No.028 of 2009** is not the court that passed the decree and judgment. The Assistant Registrar lacked the jurisdiction, in the main application for stay of execution, to issue a stay of execution of judgment and/or decree passed by the Judge, Hon. Justice Gadenya Paul Wolimbwa on 20/5/2020. The Ruling and order issued by the learned Assistant Registrar are therefore in the premises found to be null and void for being issued by a Registrar who lacked jurisdiction. The Ruling and orders of the Assistant Registrar in **Misc. Application No.53 of 2020** are in the premises accordingly set aside.

# **Issue No.3: Whether there is a pending appeal against the decision in HCCS No.28/2009 before the Court of Appeal.**

- [13] In the instant case, on **3/7/2020** the Respondents filed a Notice of Appeal and a letter requesting for proceedings in court dated **28/5/2020.** Under **Rule 76(2) of the Judicature (Court of Appeal Rules) Directions S. I No.13-10,** the Notice of Appeal is required to be lodged in the High Court within 14 days after the date of the decision against which it is desired to appeal to the Court of Appeal. Then after filing the Notice of Appeal, the intended appellant has 60 days to file the memorandum of Appeal, **Rule 83(1) of the Court of Appeal Rules**. - [14] In the instant case, the decision in **HCCS No.28 of 2009** against which the intended Appellant desired to appeal to the Court of Appeal was delivered to the parties on **22/5/2020.** It follows therefore that the Notice of Appeal which the Respondents filed on **3/7/2020** and relied on for purposes of **Misc. Application No.53 of 2020** for stay of execution was incompetent for it was filed out of time. - [15] 2ndly, on record there is no evidence as per the affidavit in reply that the Respondents filed the required memorandum of Appeal to the Court of Appeal for commencement of an appeal against the decision in **HCCS No.28 of 2009** as required by **Rule 83(1)(a) of the Court of Appeal Rules**. By 2/11/2020, by letter addressed to the Registrar of the High Court, counsel for the Appellant was complaining that the certified record of proceedings was ready for the Respondents' collection for appeal purposes but they had not been collected. - [16] The above is evidence that the Respondents never intended to appeal and indeed, there is no evidence of any appeal by the Respondents against the decision in **HCCS No.28 of 2009** that is pending in the Court of Appeal.

[17] In the premises, I find the 3rd issue in the negative. There is no pending appeal against the decision in **HCCS No.28 of 2009**.

# **Issue No.4: What remedies are available to the parties.**

[18] In the premises that this court has found that the Assistant Registrar acted without jurisdiction when he wrote and delivered the Ruling and order in **Misc. Application No.53 of 2020** for stay of execution and there is no pending appeal in the Court of Appeal as regards the man suit. The Appeal is accordingly allowed, the Assistant Registrar's Ruling and Orders are set aside but with no orders as to costs since it is trite that a litigant cannot be condemned because of the errors made by court.

Dated at Hoima this **3 rd day of January, 2025.**

> **…………………………………….. Byaruhanga Jesse Rugyema Judge**