Mbusa Okoth v Bafiriwala (Miscellaneous Application 1025 of 2022) [2023] UGHCFD 14 (8 May 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **FAMILY DIVISION**

**MISCELLANEOUS APPLICATION NO. 1025 OF 2022**

## (ARISING FROM CIVIL APPEAL NO. 013 OF 2021)

(Arising from Divorce Cause No. 17 of 2017)

MARGARET MBUSA OKOTH...................................

## **VERSUS**

ELISHA BAFIRAWALA..................................

## BEFORE: HON LADY JUSTICE JEANNE RWAKAKOOKO

## **RULING**

## Introduction

This application was brought by way of Notice of Motion under section 98 of the Civil Procedure Act, Order 22 rules 23 & 26 and Order 52 rules 1,2 & 3 of the Civil Procedure Rules as amended for orders that;

- 1. That the execution of the decree and/or orders arising from the judgment and decree issued against the Applicant in Civil Appeal No. 13 of 2021 and Divorce Cause No. 17 of 2017, be stayed and/or set aside to facilitate the Applicant pursue the appeal thereof. - 2. That costs of this application be provided for.

The application was supported by the affidavit of Margaret Mbusa Okoth, the Applicant herein.

#### Background

The Applicant was the Respondent in Divorce Cause No. 17 of 2017 that was filed in the chief magistrates' court in which the petitioner who is the present Respondent sought for a decree for dissolution of marriage, an order for maintenance of the children, an order for custody of the issues of the marriage, equal distribution of the property as set out in the petition and costs.

Divorce Cause 17 of 2017 was decided in the absence of the present Applicant, a decree nisi was granted and subsequently made absolute on 19th June

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2019. An order for joint custody and maintenance of the children to both parties and an order for distribution of the properties was also made.

The Applicant appealed the decision to the High court in Civil Appeal No. 13 of 2021 which was dismissed in a decision by Hon. Lady Justice Alice Komuhangi delivered on 15<sup>th</sup> September 2022.

The Applicant has lodged an appeal against the decision in civil appeal no. 13 of 2021 claiming that the Respondent has started alienating some of the properties and that the appeal has a high chance of success.

#### Representation

At the hearing, the Applicant was represented by Ndegwe Micheal Emmanuel and the Applicant was present. The Respondent and his legal counsel were not present. Court gave directions as to filing and service of submissions which were duly complied with by both parties.

#### Issue for determination

Whether there are sufficient grounds to grant stay of execution of the decree and orders vide Civil Appeal No. 13 of 2021 and Divorce Cause No. 17 of 2017.

#### Resolution

Order 22 Rule 23 (1) of the Civil Procedure Rules (as amended) provides that the court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of the decree for a reasonable time to enable the judgment debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution of the decree, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued by the appellate court or if application for execution has been made to it

**Order 43 Rules 4(3)** provides "No order for stay of execution shall be made under sub rule 1 or 2 unless the court is satisfied-

- a) that substantial loss may result to the party applying for stay of execution unless the order is made - b) that the application has been made without an unreasonable delay - c) that security has been given by the Applicant for the due performance of the decree or order as may ultimately be binding upon him or her.

Kisakye JSC in the case of Themi Sebalu V Peter Sematimba & 2 Ors Civil Application 15/2014 stated, "This Court has on several occasions pronounced itself on the factors that it takes into account in deciding whether or not to grant an order for stay of execution under Rule $6(2)$ (b) of the Judicature (Supreme Court) Rules. See for example Akankwasa Damian v. Uganda, Supreme Court Const. Appl. Nos. 7 and 9 of 2011 and Muhammed Kisuule v. Greenland Bank (In Liquidation, Supreme Court Civil Application No. 07 of 2010, among others.

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These factors include proof that the Applicant has lodged a Notice of Appeal; that the Applicant's intended appeal has a high likelihood of success; and that *the Applicant will suffer irreparable damage or that the appeal will be rendered* nugatory if a stay of execution is not granted. Where the above factors are not sufficient for the Court to dispose of the application, the Court will also consider where the balance of convenience lies."

Both counsel for the Applicant and the Respondent relied on the case of Lawrence Musiitwa Kyazze V Eunice Businge Civil Application No. 18 of 1990 and the case of Hon. Theodorre Ssekikubo & AG & Ors Constitutional **Application No. 3 of 2014** for the requirements for a stay of execution to be granted are; the Applicant must show that he lodged a notice of appeal, that substantial loss may result to the Applicant unless the stay is granted, that the application has been made without unreasonable delay and that the Applicant has given security for the due performance of the decree as may ultimately be binding upon him. I agree with the position set out in the above authorities and those are the principles I will rely on in determining this application hereunder.

The Applicant duly attached the notice of appeal as annexure 'C' lodged on the 30<sup>th</sup> September 2022. Annexure 'D' is the request for the certified record of proceedings received in this Honorable court on the 20<sup>th</sup> September 2022.

The present application was filed on 28<sup>th</sup> October 2022 about 32 days after the judgment in Civil Appeal No. 13 of 2021 was delivered on 15<sup>th</sup> September 2022. This court therefore finds that there was no delay in filing of this application.

The Applicant averred in her affidavit in support that the Respondent has already started alienating some of the properties to her disadvantage and that of their children. In reply, the Respondent contended that the Applicant is already in possession of one of the suit property comprised in Kyaddondo Block 120 Plot 1569 in Namwezi and the same is being wasted by the Applicant and the structures thereon are in a dilapidated situation. The Respondent attached pictures as annexure 'D' as the state of the above named property. The Respondent further contended that the execution of the orders in Civil Appeal No. 13 of 2021 will not occasion any substantial loss to the Applicant but implementation of the same will enable the Respondent to continue looking after the affairs of the children.

In light of **section 101 of the Evidence Act**, the Applicant has not shown any cogent evidence to show that she will incur substantial loss if this application is not granted. In fact, there is no evidence that the Respondent has started alienating the properties as alleged by the Applicant.

The Applicant averred in paragraph 7 of her affidavit that there was high chance of success of the intended appeal and that the Applicant should be given a chance pursue the same. The Respondent contended that the intended appeal had no likelihood of success as it was based on frivolous grounds and that the Applicant had not the sufficient cause to be granted an order for stay of execution. Counsel for the Respondent cited the case of Osman Kassim V Century Bottling Company Ltd Civil Appeal No. 34 of 2019, where it was

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held that the Applicant had not attached a draft memorandum of appeal to indicate the proposed grounds of appeal and thus the important questions were *not mentioned in the affidavit in support and the court was unable to establish* the likelihood of success in the absence of evidence.

In the case of Gashumba V Nkudiye Civil Application No. 24 of 205 it was stated, "In our view, even though this Court is not at this stage deciding the appeal, it must be satisfied that the appeal raises issues which merit consideration by Court." The Applicant did not attach a draft memorandum of appeal in the present application. Without going into the merits of the intended appeal, there is no way that this court would determine if the Applicant's intended appeal raised issues which merit the consideration of the court of the appeal. In the premise, this ground fails.

As to security of costs envisioned under order 43 rule 4(3) c) (supra), the Applicant has not furnished the same to this court nor has she alluded to the same in her affidavit in support.

Counsel for the Respondent relied on the **Lawrence Musiitwa case(supra)** for the position that security for due performance has been interpreted to mean the entire decretal sum and it is intended to protect the judgment creditor in the event that the appeal is unsuccessful. I wholly agree with counsel in that regard. In the premise, the Applicant has fallen short of the requirements for stay of execution as provided in **order 43 rule 4(3) (supra)** and in the *Lawrence Musiitwa case(supra)*.

Conclusion and orders

In my view, the Applicant has failed to show that there are sufficient grounds for the grant of stay of execution and I accordingly dismiss this application.

In these premises, the application fails and I hereby order as follows;

- 1. This application is hereby dismissed. - 2. Each party is hereby ordered to bear their own costs.

It is so ordered.

Jeanne Rwakakooko **JUDGE** 26/04/2023

Ruling delivered on this day of MAY . 2023