Kyavawa & 5 Others v Tebajjukira & Another (Civil Application 1068 of 2023) [2024] UGCA 148 (13 June 2024)

#### THE REPUBTIC OF UGANDA

### tN THE COURT OF APPEAL OF UGANDA AT KAMPALA

ctvtL APPLtcATtoN NO.1068 0F 2023

(Arising out of Civil Appeal No.984 of 20231

(Arising out of Civi! Suit No.354 of 20t7l

- 1. KYAVAWA BETTY - 2. MUKOOZA LAWRENCE - 3. AUGUSTINE MUSUTWA - 4. MUSOKE ROBERT KIGONYA - 5. SEKAYITA CHARLES - 6. NATUGUMBYA CISSSY

#### VERSUS

- 1. TEBAJJUKIRA MILLY - 2. NAMARA DENNIS RESPONDENTS

APPLICANTS

#### RULING

The Applicants filed a Notice of Motion with a supporting affidavit deposed by the 4th Applicant for orders that:

- a) A stay of execution of the judgment and orders in Civil Suit No.354 of 2OL7 be granted pending determination of Civil Appeal No.984 of 2023 before this court. - b) Costs of and incidental to the application be provided for.



The grounds of the Application are that:

- 1. The 1't Respondent instituted Civil Suit No.354 of 2OL7 against the Applicants which was decided in their favour. - 2. The Applicants being dissatisfied with the judgment and orders of the trial court lodged CivilAppeal No.984 of 2023 pending determination in this court. - 3. On receiving the judgment, the Respondents filed a Notice to show cause why execution should not issue vide EMA No.75 of 2022 seeking to execute against the Applicants. - 4. The Applicants filed Miscellaneous Application No.99 of 2023 in the High Court to stay execution of the judgement but the application was dismissed. - 5. That there exists a real threat of execution which shall occasion <sup>a</sup> miscarriage of justice and will render the Appeal nugatory yet it has <sup>a</sup> strong likelihood of success. - 6. That the balance of convenience is in favour of the applicants who made the application without unreasonable delay and it is in the interest ofjustice that the orders sought are granted by the court.

The Application is opposed by the 1't Respondent who contends that it is frivolous, vexatious and an abuse of the court process as there is no threat of execution and no steps towards executing the decree of the court have been taken since the dismissal of the application by the trial court.

The Lst Respondent contends that a bill of costs was taxed but that does not amount to execution and the fact that she applied to have the decree executed by the court giving her vacant possession was justified since the suit property had been decreed to her by the court. The Applicants knew that she had sold the land to the 2nd Respondent before the suit in the High Court was filed.

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It is further contended that the Applicants will not suffer any hardship if the decree is executed since they do not own the suit land, have no homes on it and were given their shares in the estate of Matiya Kiyini but continue to illegally occupy the suit land much as it is registered in her name as the estate Administrator.

The 1't Respondent also contends that the present application was filed after an unreasonably long period since the dismissal of the application to stay execution in the High Court and they had failed to furnish security for due performance of the decree which renders their application incompetent.

### Background

The background to the application is that the Applicants and the 1't Respondent are beneficiaries in the estate of late Matiya Kiyini which is administered by the 1.st Respondent who claims to have distributed the estate to all beneficiaries. The 1st Respondent however contends that the Applicants' intermeddled in the estate and continue to lay claim to the suit land which was sold to the 2nd Respondent.

The 1't Respondent filed Civil Suit No.354 of 2017 for declaratory orders and a Permanent injunction against the Applicants who filed a defence and a counterclaim challenging her Letters of Administration and the sale of the suit land pleading fraud against both Respondents. The court found in favour of the 1't Respondent hence the filing of Civil Appeal No.98 of 2023 by the Applicants.

### Representation

At the hearing of the application Counsel Nakubulwa Faridah appeared for the Applicants. Counsel lsabirye lsaac assisted by Mr. Mugarura Jamiru appeared for the Lst Respondent.

### Applicants' submissions

It was submitted for the applicants that it was necessary for the court to stay execution of the decree in the original suit for the ends of justice to be met and the Court had the mandate to issue such orders under Rule 6(2Xb) of the Judicature (Court of Appeat) Rules. tt was argued that the requirements an applicant has to prove before an order for stay of execution is granted were met by the Applicants.

Counsel argued that a notice of appeal was lodged and substantial loss was to be occasioned to the Applicants unless a stay of execution was issued by the court. lt was further argued that the application was made without delay and there was no need for the Applicants to furnish security for due performance.

The basis for the argument is that the 1st Respondent held the title to the suit land and the decree sought to be executed by the 1st Respondent did not involve any monetary award. Counsel relied on Lawrence Musiitwa Kyazze vs Eunice Busingye. SCCA No.18 of 1990 and Kyambogo University V Prof.lsiah Omolo Ndiege. CACA No.341 OF 2013 to support the arguments.

### Respondents' submissions

Counsel for the Respondents agreed with the Applicants on the principles governing the grant of stay of execution orders by the courts. It was conceded that a Notice of Appeal was filed by the Applicants in

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compliance with the requirements of Rule 6 (2Xb) but the Application was however made after an unreasonably long period.

It was submitted that the impugned judgment was delivered on l,9th August 2022 and the Respondents applied for execution of the decree on 2nd December 2O22. On L3th Februa ry 2023 the application for execution and the Notice to show cause why execution should not issue were served on the Applicants. The Applicants applied for a stay of execution but the application was dismissed on 27th April 2023.

The instant application was filed on 3'd October 2023 after an unreasonably long period of time it was submitted by Counsel.

It was further submitted that the application was not competent since the Applicants are not willing to furnish security for due performance yet it is a mandatory requirement and they had not demonstrated any threat of execution that was likely to occasion a miscarriage of justice as required by the law.

ln the alternative it was submitted that the Applicants should furnish security for due performance in the sum of Shillings 100,000,000/.

Counsel finally submitted that the application was frivolous and the Appeal had no likelihood of success because the Applicants had received their entitlements in the estate administered by the 1't Respondent. An lnventory and Account of the estate were filed in court but the Applicants after receiving and selling their due shares opted to grab the suit land and they would suffer no hardship if evicted.

### Consideration of the application

I have considered the pleadings and submissions filed by both counsel. <sup>I</sup> have also perused the various authorities furnished to court and perused the law relating to the granting of stay of execution orders by the court.


Rule 2(2) of the Judicature (Court of Appeal) Rules provides for inherent powers of the court to make such orders as may be necessary for attaining the ends of justice. The mandate of the court is however more specifically set out in Rule 6(2) which provides that institution of an appeal shall not operate to suspend any sentence or to stay execution. Rule 6(2)(b) provides that the court may:

# "in ony proceedings, where a notice of oppeal hos been lodged in accordonce with rule 76 of these Rules, order o stay of execution, on injunction or o stoy of proceedings on such terms os the Court mdy think just."

The governing principles for stay of execution to be granted are settled and have been canvassed in a number of authorities. They are:

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

# Lawrence Musiitwa Kyaze V Eunice Busingye (supra). Theodore Ssekikubo &Others V Attorney General &Others. Constitutional Application No.3 of 2014.

Other requirements for a stay of execution to be granted are:

- a) That 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. - b) That the appeal is not frivolous and has a likelihood of success. - c) That the refusal to grant the stay would inflict more hardship than it would avoid.

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Guided by the above principles, I proceed to determine the merits of the application.

## 1. Whether there is a competent Notice of Appeal on the record

A Notice of Appeal was filed on 23'd August 2022 and served on Counsel for the Respondents on 3L't August 2022 together with a letter applying for the record of proceedings in the lower court. The Respondents applied for execution of the decree and issued a Notice to show cause why execution should not issue. The 1't Respondent holds the Letters of Administration to the estate and the certificate of title for the suit land.

Much as it is submitted by the Respondents that there is no threat of execution given that it has not been done since the High Court dismissed the Application to stay the same, the court holds the view that nothing stops the 1't Respondent from carrying out execution since she is in possession of all that is required to proceed with it.

There is therefore an imminent threat of execution of the decree and once accomplished the Appeal filed on 23rd August 2023 will be rendered nugatory.

## 2. Likelihood of substantial loss and hardship to the Applicants

The Applicants claim to have permanent houses on the suit land which assertion is denied by the 1't Respondent who claims that the land was sold to the 2nd Respondent. The Applicants claim that the suit land forms part of the estate hence it is in contention on Appeal.

lf execution is not stayed the 1st Respondent will be at liberty to transfer the suit land to the 2nd Respondent since evidence in her affidavit suggests that the certificate is still in her name as the Estate administrator.

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lf the suit land is transferred, it will cease to form part of the estate in contention and the 2nd Respondent will be at liberty to deal with it as he wishes. The loss to the Applicants will in the view of the court be substantial and occasion hardship to them.

### Likelihood of success of the Appeal

I have perused the Memorandum of Appeal filed by the Applicants. The grounds raised for consideration include investigating the powers of the Administrator General to issue parallel certificates of no objection and the managenrent of the estate by the 1't Respondent. I 'am alive to the fact that the court is not required to inquire into the merits of the case from which this application arose since this is not an appeal. The court is however required to determine whether there exist grounds of appeal that merit serious consideration.

# Krone Uganda Limited V Kerilee tnvestments Ltd. CACA No.53 of 2OZO and Albert George Gitta &Others V lillian Nanyonga &Others. CACA No.593 ol2022.

Considering all the grounds of appeal, the court will be required to investigate whether the estate of late Matiya Kiyini was well managed and by a competently appointed administrator which merit consideration at the Appeal level. I do not find the Appeal to be frivolous or vexatious.

### Whether the application was promptly filed

The issue for the court to consider is whether the six months' period from when the applicants lost the application for stay of execution in the High Court to the filing of the present application was unreasonably long. <sup>I</sup> note from the Rules of this court that there is no fixed period of time within which an application for stay of execution must be filed.

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What however I consider to be pertinent is that the applicants expressed the necessity to appeal at the earliest possible opportunity and now have a duly filed appeal pending determination by the court. As noted herein above what is paramount is to preserve the status quo so as not to render the appeal nugatory.

I would not consider the six months' period unduly long more so given the earlier efforts by the Applicants to have the execution of the decree stayed by the High Court.

## Security for due performance

It is the Applicants' argument that they should not be required to pay security for due performance on account of the fact that the title to the suit land is in the custody of the 1't Respondent. The Applicants claim to have lodged a caveat on the certificate of title but it was ignored by the 1't Respondent who proceeded to transact in the suit land.

Conversely, the 1st Respondent argues that the suit land cannot be pledged as security for due performance and the Applicants are required to pledge an independent asset which they failed to do yet it is <sup>a</sup> mandatory requirement for any applicant for stay of execution to furnish such security.

My appreciation of Rules 2(2) and 5(2) of the Judicature (Court of Appeal) Rules is that while considering applications of this nature, the court may make orders it deems just and this has to be premised on the peculiar circumstances of each application.

The applicants claim land the title of which is in the custody of the 1{ Respondent. They have no decree to perform but are at the mercy ofthe 1"'t Respondent who holds the instruments to have the decree executed. The decree per se did not make any monetary award to the Respondents.

I would not consider the applicants who are seeking to enforce their claim as beneficiaries liable to furnish security for due performance. All considered the application is allowed and I make the following orders:

- a) A stay of execution of the decree in civil suit No.354 of 2oL7 is issued pending the disposal of Civil Appeal No.984 of 2023 by this court. - b) Costs of this application shall be in the cause.

Dated at Kampala this ...fCaay of 2024.

Moses Kazibwe Kawumi JUSTICE OF APPEAT