Mushana v Mutazindwa & 3 Others (Miscellaneous Application 2422 of 2024) [2025] UGHCLD 6 (13 January 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO.2422 OF 2024** *(Arising from Civil Suit No. 078 of 2019)* **MUSHANA JULIUS ::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

**1. DEO MUTAZINDWA 2. SITUMA WOTSUNA PAUL 3. RUTH MUTAZINDWA 4. WOTSUNA AGNES ::::::::::::::::::::::::::::::::::: RESPONDENTS**

## **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

### *Introduction:*

- 1. This was an application by Chamber Summons brought under Section 98 of the Civil Procedure Act, Order 22 rules 23 and rule 89 of the Civil Procedure Rules (CPR) for orders that: - i) Stay of execution of the judgement and orders delivered on the 31st day of May 2024 vide Civil Suit No. 0078 of 2019 by Hon. Lady Justice Naluzze Aisha Batala pending the hearing and determination of the applicant's appeal.

ii) Costs of the application be provided for.

#### *Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by the applicant which briefly states as follows; - i) THAT, the Respondents filed Civil Suit No. 0078 of 2019 against me and judgement was entered by Hon. Lady Justice Naluzze Aisha Batala on the 31st day of May 2024 ordering that I vacate the suit Property within 3 months, issued a permanent injunction, payment of 40 million as damages at an interest rent of l0% per annum and costs. - ii) THAT, I am dissatisfied with the judgment of the High Court thus, filed a Notice of Appeal in this Court together with a letter requesting for a full record of the Court proceedings to enable me file my Appeal to the Court of Appeal. - iii) THAT, my Appeal has a likelihood of Success since the Respondents did not have a right to file for trespass against me as a lawful Kibanja holder on the suit property on acquiring legal interest in the suit land.

- iv) THAT, the Respondents are in the process of executing the decree and have filed a Bill of costs which is pending taxation which threat if not stayed shall result in the Applicant unjustly losing his equitable interests in the suit land. - v) THAT, I am suffering irreparable loss and damage due to the permanent injunction issued against me coupled with the eminent threat of eviction from my property housing rentals fully occupied by tenants, gravely affecting my business unless this Honorable Court stays the order of execution granted pending the hearing and determination of my Appeal before the Court of Appeal. - vi) THAT, the balance of convenience lies in my favor since the Court issued an eviction order without considering the nature of business operated on the suit property for which, once evicted, I shall lose business, undergo unnecessary suits from the tenants over an interest that I lawfully acquired from the previous Kibanja holder which fact I believe the Court failed to appreciate and is a ground of appeal to the Court Appeal.

#### *Respondent's evidence;*

- 3. The application is responded to by an affidavit in reply deponed by the 2nd respondent which briefly states as follows; - i) That this Honorable court on the 31st day of May, 2024 made a declaration that the respondent is a trespasser on our land comprised in Kyadondo Block 213 Plot 28 land at Bukoto and was ordered to vacate the suit property and give vacant possession within 3 months from the date of judgment. - ii) That the applicant in defiance of this Honorable Courts Orders has failed and refused neglected to vacate the premises within the 3 months and have continued his activities on the land unabated contrary to the Orders of a Permanent Injunction restraining him from further acts of trespass. - iii) That I have perused the notice of appeal and the letter requesting for proceedings, the said notice was filed on the 21st day of August 2024.

iv) That the letter requesting for proceedings dated 6th of June 2024 was neither copied to my lawyers nor served upon them.

#### *Representation;*

4. The applicant was represented by Counsel Kakande Edward of M/S Aogon & Co. Advocates whereas the respondents were represented by Counsel Nuwagaba Gilbert of KGN Advocates. Only the applicant filed written submissions which I have considered in the determination of this application.

#### *Issues for determination.*

- **i) Whether the application merits the grant of an order for stay of execution pending the determination of the appeal?** - **ii) What remedies are available to the parties?**

#### *Resolution and determination of the issues;*

5. An application for stay of execution pending an appeal is designed to preserve the subject matter in dispute so that the right of the appellant who is exercising his or her undoubted rights of appeal

are safeguarded and the appeal if successful is not rendered nugatory.

- 6. The fact that there is no specific provision regarding stay of execution of a decree from the high court where the appeal lies to the court of appeal, this is an area where court exercises its inherent powers as stipulated under Section 98 of the Civil Procedure Act Cap 282*. (See; Singh vs Runda Coffee Estates Limited (1966) EA).* - 7. The conditions for court to consider in an application for stay of execution pending an appeal to the court of appeal were pronounced in the celebrated supreme court decision of *Lawrence Musitwa Kyazze vs Eunice Busingye* **S. C. C. A** *No.18 of 1990* and have been re-echoed in *Theodre Sekikubo and Others Vs The Attorney G***eneral** *and others Constitutional Application No.03 of 2014* and these include; - *i) The applicant must show that he lodged a notice of appeal.*

- *ii) That there is a serious and imminent threat of execution of the decree and if not stayed the said appeal will be rendered nugatory.* - *iii)Substantial loss may result to the applicant unless the application for stay is granted.* - *iv) That the application has been made without unreasonable delay.* - *v) That the applicant has given security for the due performance of the decree or order as may ultimately be binding upon them.* - 8. This honorable court will now proceed to qualify the above conditions in the instant case as follows; - *i) The applicant must show that he lodged a notice of appeal* - 9. It is the evidence of the applicant under annexure B where he attached a notice of appeal vide Civil Appeal No. 053 of 2024 arising from Civil Suit No.0078 of 2019. I therefore find that there exists a notice of appeal. # *ii) That there is a serious and imminent threat of execution of the decree and if not stayed the said appeal will be rendered nugatory*

- 10. The applicant under paragraphs 5,6 and 7 of the affidavit in support and in the submissions state that a decree was extracted and the respondents have started executing the decree by filing a bill of costs which is pending taxation vide EMA 003 of 2024. - 11. This is a fact that the respondents did not dispute to. I find that this condition is met by the applicant.

# *iii) Substantial loss my result to the applicant unless the application for stay is granted.*

12. The phrase substantial loss has been interpreted by courts of law drawing reference to the *Tropical Commodities Supplies Limited & 2 others vs International Credit Bank Limited (in liquidation) (2004)EA* where Justice Ogoola as he then was held that "*the phrase substantial loss doesn't represent any particular amount or size, it cannot be qualified by any particular mathematical formula"*. It refers to any loss great or small of a real worth or value as distinguished from the loss that is merely nominal.

- 13. In the instant application, counsel for the applicant submits that the applicant has tenants and businesses ongoing on the suit land and the orders issued in the decree are to the effect that the applicant grants vacant possession of the land to the respondents. - 14. If the orders of court in the said decree are not stayed, the applicant is to lose his interest in the suit property something which will render the appeal nugatory. - 15. The applicant bases his claim of substantial loss on the intended eviction of the applicant's tenants and businesses from the suit land through enforcing of the decree. This means that if this application is not granted, indeed substantial loss is to happen to the applicant who is in possession of the suit land rendering his appeal nugatory. therefore, I find this condition met by the applicant.

# *iv) That the application has been made without unreasonable delay*

16. Counsel for the applicant submits that the instant application was filed on the 18th day of September 2024, decree in the main suit was extracted on the 8th of July 2024 and the notice of appeal


was filed on the 21st of August 2024. It appears that the application was filed after 2 months from the date of the decree.

- 17. Counsel for the applicant relies on the decision in **Gashumba Maniraghuha vs Sam Nkudiye SCCA No. 24 of 2015** where the judgement was delivered on the 21st of February 2014, decree extracted on 23rd April 2014 and application for stay of execution filed on the 19th August 2014 and court proceeded to entertain the stay of execution application despite being filed over 5 months from the date of judgment. - 18. All these steps taken by the applicant to appeal and contest the execution of the decree testify to the speed that he has brought this application. Since the respondents did not adduce any evidence contrary to the same, I'm satisfied that the application for stay of execution was lodged without unreasonable delay. - *V) That the applicant has given security for the due performance of the decree or order as may ultimately be binding upon them* - 19. Security should be given for due performance of the decree however each case should be looked at according to its own merits, the requirement for payment of security for due performance of the

decree is to ensure that the losing party does not intentionally delay execution while hiding under unnecessary applications.

20. This honorable court will rely on the decision of *John Baptista Kawanga vs Namyalo Kevina & Anor MA No. 12 of 2017* where it was held that the decision as to order for payment of security for the due performance of the decree must be made in consonance with the probability of success.

- 21. As to whether the applicant's appeal holds likelihood of success; *Gapco Uganda limited vs Kaweesa & Anor (MA No.259 of 2013) UGHCLD 47* defined likely hood of success of a case to be one that, *"the court is satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried"* - 22. In the instant case, the applicant under paragraph 11 states that he is willing to pay security for due performance of the decree and it's a general principle that a successful party is entitled to the fruits of his or her judgement or of any decision of court giving him success at any stage. - 23. The nature of this case is one where I find it necessary for the payment of security for due performance of the decree.

- 24. Therefore, this court hereby grants an order of stay of execution based on the principle that it is the paramount duty of court to which an application for stay of execution is made to ensure that the appeal is not rendered nugatory, the instant application succeeds with the following orders; - i) The stay of execution order granted by this court shall only suffice on a condition that the applicant deposits a sum of Ughs 15,000,000 (fifteen million shillings only) on the account of the Registrar High court as security for due performance of the decree with in a period of 30 days from the date of this ruling. - ii) Failure to comply with the said condition, the respondents are at liberty to proceed with the execution process so as to retrieve the fruits of their judgement. - iii) No order as to costs.

#### **I SO ORDER.**

#### **NALUZZE AISHA BATALA**

### **Ag. JUDGE.**

**13th – 01- 2025**

### *Delivered electronically via ECCMIS on the 13th day of January*

*2025.*