Mayambala and 4 Others v Nantaba and 5 Others (Civil Application No. 644 of 2022) [2023] UGCA 44 (8 February 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

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

### CIVIL APPLICATION NO.644 OF 2022

(Arising from Civil Application No.689 of 2022)

(Arising from Civil Appeal No.0269 of 2022)

*(All arising from Civil Suit No. 149 of 2019)*

$\mathbf{r}$

$\mathsf{S}$

1. MAYAMBALA KENNETH

- 2. KAWEESA JOHN - 3. MIVULE MARK - 4. NALUBWAMA HARRIET - 5. TERUKANYA ALICE (Administrators of the 15

Estate of the Late Ssalongo Kisitu Ephraim)

### **VERSUS**

1. NANTABA JULIET

2. MUWANGA DERICK

3. KAGGWA DENNIS

4. MEEME NANGENDO IMMACULATE

5. MAYANJA DAVID

6. MAGUNDA RONALD

CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA

(SINGLE JUSTICE)

**RESPONDENTS**

**APPLICANTS**

5 This is an application for an order of interim stay of execution of the order or decree in Civil Suit No.149 of 2Ol9 against the applicants pending the hearing and determination of the main application before this Court. The application is brought by way of Notice of Motion under Rules 2(2]r, 6(2],. 42 & 43( 1) of the Judicature (Court of Appeal) Rules and section 98 of the Civil Procedure Act.

#### Background 10

The applicants were Administrators of the Estate of the late Ssalongo Kisitu Ephraim vide HCT-OO-FD-AC- 1782 of 2016 having been granted letters of Administration by the High Court (Family Division). On 4n January,2022, a ruling was made in the High Court vide Civil Suit No. 149 of 2Ol9 in favour of

the respondents that the letters of administration of thc estate of the late Ephraim Kisitu Ssalongo be revoked for non-filing of an inventory, and mismanagement of the Estatc. The respondents immediately extracted a decree and the applicants herein applied for stay of execution under Miscellaneous Application No.84 of 2022 in the High Court staying the execution of the decree and orders in Civil Suit No.149 of 2022. The said application was dismissed by Murangira, J for lack of Merit. Bcing dissatislied with the ruling of the High Court, the applicants filed this application and a 15 20

substantive application pending hearing and determination in this Court.

## Grounds of the application

The grounds in support of the application are contained in the Notice of Motion and expounded in the affidavit in support of Mayambala Kenneth sworn on behalf of the other applicants. The import of the grounds is that the applicants filed an application for stay of execution in the High Court (Family 2lPage 25

- 5 Division) vide Miscellaneous Application No.84 of 2022 and the same was dismissed. The applicants filed a substantive application which is pending hearing and determination before this Court against the respondents jointly or severally for an order of stay of execution of the judgment and decree in Civil Suit No. 149 ol 2019. Further that there is an eminent threat as the respondents commenced the process of execution of the decree and orders in Civit Suit No. 149 of 2Ol9 in the Office of the Administrator General to appoint new Administrators before the hearing and determination of the substantive application and the same sha11 be rendered nugatory if the interim order is not granted. 10 - The applicants contended that the substantive application has a high likelihood of success and the applicants will suffer irreparable damage which cannot be compensated by way of damages if this application is not granted. That the Courts are at the vcrge of dismissing on-going Court cases which were instituted in the names of the Applicants as Administrators of the Estate of the Iate Ssalongo Kisitu Ephraim against intruders, intermeddles and opportunists since their le tters were summarily revoked. Further that dismissal of the on-going Court cases which were instituted by the Administrators before revocation of the respondent's letters is an eminent threat to the estate which is likely to cause irreparable damage or miscarriage ofjustice. That there is eminent danger that the entire estate within a shortest period of time has been put to waste unnecessarily by some of the 15 20 25 - beneficiaries and there is need to protect the same.

# 5 Grounds of opposition to the application

The application was opposed by the respondents through an affidavit sworn by Nantaba Juliet on behalf of other respondents stating that the application was improperly brought before this Court and the same should be dismissed with costs and it would cause an injustice to grant a stay of execution since the execution of the orders of Court were already enforced. Further that there is no eminent threat or danger that the applicants will face since the orders of the High Court were already enforced and the applicants are no longer the administrators of the estate of the late Ephraim Kisitu Ssalongo,

The respondents further contended that the application was overtaken by events as the applicants' letters of administration were already revoked by the orders of the High Court under Civil Suit No.149 ol 2079 for non-filing of an inventory and mismanagement of the estate. That the applicants herein applied to the High Court of Uganda, Family Division under Miscellaneous Application No.84 of 2022, for stay of execution of the orders, and in his detailed Ruling, Murangira,J noted that there was nothing to stay, and that it was the estate to suffer and the applicants to the said application. That the orders of the High Court have already bcen cxecuted by the respondents through obtaining a ce rtificate of No Objection from the Administrator General with the knowledge of the applicants herein. 15 20

The respondents further averred that the applicants did not show any irreparable loss or damage that they would suffer in the event this application is not granted yet on the contrary, it is the estate and the respondents that shall suffer irreparable injury as the applicants had taken the estate to be 25

4lPage

- 5 their personal property. That the balance of convenience is in favour of the respondents as per the order of Court, the applicants are no longer administrators of the Estate of the late Salongo Kisitu Ephraim and in total defiance of the High Court orders revoking the Letters of Administration, the applicants have continued to use the estate property as personal propertSr and - to their own benefit, at the exclusion of other beneficiaries, including collecting rent from the tcnants on the building in Bulaga. That it would only be just and cquitable that this application be dismissed. 10

## Representation

At the hearing of the application, the applicants were represented by Mr. T\rsiime Isaac while Mr. Ssewanyana Ssewanonda appeared for the respondents. The 2"d, 3rd, 4th and 5ft applicants were present in Court as well as the respondents. 15

## Appllcants' submissions.

Counsel for the applicants submitted that in applications of such a nature, the Supreme Court had laid down grounds upon which an interim stay of execution can be granted to include a substantive application pending before this Court and a serious threat of execution of the degree before the disposal of the substantive application. He relied on Huang Sung Industrles Ltd V TaJdtn llussein & 2 Ors, Suprerne Court Clvll AppllcatTon No.79 of 2OOB for the grounds to be considered beforc granting an application for interim 20

stay. 25

5 Counsel further submitted that the applicants had established that there was a substantive application pending hcaring and dctermination before this Court and there is an eminent threat of execution based on the letters dated 25tt' February, 2022 and 3'd February, 2022 all from the Office of the Administrator General calling for a family meeting to necessitate the appointment of new administrators as well requiring the administrators to surrender all the land titles to the ofl-rce of the Administrator General. He added that the effect of the ensued execution process by counsel for the respondents is that the tenants occupying the rentals at Bulaga Kumwenda are hesitant to pay rent for the premises they occupy on grounds that the letters of administration were revoked and the estate stands without administrators. 10 15

Counsel further submitted that a serious threat of execution connotes a weighty moment to execute and this has been established by the Respondents' actions of moving the office of the Administrator General to appoint new administrators, surrender land titles and then writing to tenants of the estate of the iate Kisitu Ephraim that the applicants' letters of administration were revoked and the estate has no administrators. He added that the applicants averred under paragraph 1O of their aflidavit in support that their cases in the different Courts were about to be summarily dismissed since they were instituted by Administrators and currently stand without locus as administrators.

He further contended that there was eminent threat of execution against the applicants irrespective of the fact that even the substantive application filed

6lPage

5 in this Court has higher chances of success and this application will be rendered nugatory and since the respondents ensued the process of execution, the same has not been completed to date therefore the application filed in this Court has not been overtaken by events. He prayed that the application be granted.

## Respondents' submissions 10

Counsel submitted that an application for interim stay of execution arises from a substantive application but in the instant application, whereas the application and the supporting affidavit show that it originates from Civil Appeal; No.269 of 2022, it doesn't indicate the main application it emanates

from. 15

Counsel submitted that the ruling was given in favour of the respondents and they immediately extracted a Decree which stated among others that the letters of administration under Administration Cause No. HC-00- FD=AC=1782 -2017 granled to the applicants herein on 20ft March, 2Ol7 be revoked and therefore the applicants ceased to be the Administrators of the estate of the late Ephraim Kisitu Ssalongo on 4fr January, 2022. He added that the applicants hled Miscellaneous Application No.84 of 2022 in the High Court, Family Division seeking for stay of execution of the orders in Civil Suit No.149 of 2Ol9 but the same was dismissed for lack of merit since execution had already taken placc.

Counsel further contended that unlike most matters that require execution, the instant matter did not because the applicants ceased to be administrators of the estate of the late Ephraim Kisitu Ssalongo on 4ft January, 2022 and

7lPage

5 there is therefore nothing stay anymore because the estate does not have administrators. He added that even if the applicants were to argue that the instant application seeks to stay a fresh grant of the letters of administration, it would not apply because as shown in the annexture "B" attached the respondents' affidavit in reply, the respondents have already, with the knowledge of the applicants obtained a Certificate of No Objection from the Administrator General and therefore this application is overtaken by events. He relied on lllugume V Akankwasa (2OO8) IICB 760 where Court held that the application for stay had been made inordinately late. 10

Counsel submitted that the applicants did not show any irreparable loss or damage that they would suffer in the event that this application is not granted since they are no ionger Adminstrators of the Estate of the late Ssalongo Kisitu Ephraim. In counsel's view, the applicants will not suffer any injury but rather the estate and the respondents would suffer because of the applicants' mismanagement of the estate. He added that the balance of convenience tilts in favour ofthe Respondents and this is bccause the applicants are no longer the administrators of the estate of the late Ephraim Kisitu Ssalongo by virtue of the High Court ruling datcd 4th January, 2022. He prayed that the application be dismissed. 15 20

In rejoinder, counsel for the applicants submitted that the instant application is properly before this Court because Rule 42( 1) of the Rules of this Court requires applications of such a nature to first be made in the High Court. That the applicants {irst made an application for interim stay of execution in the 25

5 High Court vide Miscellaneous Application No.84 of 2022 and the sanne was dismissed hence this application.

Counsel further submitted that contrary to what the respondents averred, the applicants file d a substantive application referenced as Civil Application No.689 of 2022 via ECCMIS system on 19ft September, 2022. He added that

- execution in the instant application has not been completed since the letters of administration subject of the Certificate of No Objection by the respondents has not been granted by the High Court and some of the beneficiaries of the estate who were not engaged in thc appointment of thc administrators have since lodged a caveat on the said letters which might in counsel's view take a 10 - long period of time. Further that merely attaching property before sale does not make execution complete and so thc application is not overtaken by cvcnts 15

## Court's analysis

The jurisdiction of this Court to grant a stay of execution is sct out in Rules 2(21 and 6(2) (b) of the Judicature (Court of Appeal Rules) Directions which mandate the Court to grant a stay of execution. 20

lr Zubeda Mohamed & Sadnt Mohamed V Latla Kaka Wallla & Anor, Suprelnne Court Clutl Reference No. O7 of 2016, the Supremc Court statcd as follows;

"Considerations for the grant of on interim order of stag of exeantion or inteim injunction are uthether there is o substantiue application pending and uhether there is a seious threat of execution before heaing of the 25

substantiue application. Needless to saq, there must be a Notice of Appeal. See Huan Sung Industrles Ltd tts. TaJdln. Elzsslen and 2 others SCll4A .l\Io. 19 of 2OO8.

> In summary, there are three conditions that an applicant must satisfg to justtfg the grant of an inteim order:

- 1. A competent Notice of Appeal; - 2. A substantiue application; and - 3. A seious threat of exeantion."

The applicants did not mention anywhere in their pleadings whether they had filed a Notice of appeal however from the record, substantive application arises from Civil Appeal No.269 of 2022. The Court record further indicates that the applicant filed a substantive application referenced as Civil Application No.687 of 2022.

On whether there is a serious threat of execution, Counsel for the applicants submitted that a serious threat of execution connotes a weighty moment to execute and this has been established by the Respondents' actions of moving the office of the Administrator General to appoint new administrators, surrender land titles and then writing to tenants of the estate of the late Kisitu Ephraim that the applicants' letters of administration were revoked and the estate has no administrators.

In reply, counsel for the rcspondents submitted that Counsel further contended that unlike most matters that require execution, the instant matter did not because the applicants ceased to be administrators of the estate of the 25

5 late Ephraim Kisitu Ssalongo on 4e January, 2022 and there is therefore nothing stay anymore because the estate does not have administrators.

The High Court revoked the applicants' letters of administration for failure to fiie an inventory and upon revocation of the said letters of administration, the respondents applied for a certificate ofno objection marked as annexture uB"-

This meant that the status quo had already changed because the orders of the High Court had been implemented. This matter is therefore overtaken by events. 10

In the result, I decline to grant the interim order of stay of execution sought by the applicant.

The application is dismissed and costs shall abide the cause of the main application for stay of execution. 15

a )- Datcd at Kampala this ......day of ...2023.

Chcborion Barishaki

20 JUSTICE OF APPEAL