Mutabazi and Others v Horizon Coaches Ltd (MISC. APPL. NOS. 1293 AND 1653 OF 2000; MISC. APPL. NOS. 1293 AND 1653 OF 2000) [2001] UGHC 126 (2 February 2001)

I certify that this is a true copy of the original Registrar IN THE HIGH COURT OF UGANDA AT KAMPALA /1 Date:.. MISC. APPL. NOS. 1293 AND 1653 OF 2000 ARISING FROM C. S. NO. 1087 OF 1997

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FRANCIS MUTABAZI & OTHERS ....................................

**VERSIN**

HORIZON COACHES LTD ...................................

## BEFORE – THE HONOURABLE MR. JUSTICE MWANGUSYA

## RULING:

This is an application under Section 101 of the Civil Procedure Act and order 48 Rule 1 of the Civil Procedure Rules to stay of execution of a decree in High Court Civil Suit No. 1087 of 1997 pending the hearing and final disposal of an appeal filed in the court of Appeal of Uganda.

The grounds on which the application is based are:-

- That the applicant intends to appeal against the judgment dated 23<sup>rd</sup> June 2000. $(a)$ - That the intended appeal stands High chances of success. $(b)$ - That the applicant stands to suffer inconveniences and damage if execution is not $(c)$ stayed pending the hearing and final disposal of the intended appeal.

The application is supported by two affidavits of Geoffrey Nangumya, a corporation Secretary of the applicant. One affidavit is dated 15<sup>th</sup> September 2000 and there is an affidation incidend and the 31st January 2001. The respondent opposed the application and filed an affidavit dated the 15<sup>th</sup> November 2000.

At the hearing of this application Mr. Birungi informed court that counsel for the respondent was not opposed to the application but infact Mr. Omunyokol for the

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respondent did oppose the application and further submitted that if court was inclined to grant the application security for costs in form of cash or a bank draft should be deposited with the Registrar ofthis court.

Before <sup>I</sup> deal with the grounds of this application <sup>1</sup> will deal with the issue of prerequisite before execution can be stayed. The order provides as follows: security because according to order 39 Rule 3 of the Civil Procedure Rules it is a

"No order to stay of Execution shall be made under Sub-rule (1) or sub rule (2) unless the court in making it is satisfied.

- (a) that substantial loss may result to the party applying for stay of execution <sup>I</sup> O unless the order is made. - That the application has been made without unreasonable delay. (b) - (c) That security has been given by the applicant for due performance, of such a decree that may ultimately be binding upon him."

In my view it was incumbent on the applicant to provide security and state so in his application and affidavit in support of the application. It was not enough for Mr. Biruimi to inform Court that the applicant was willing to provide the security. Provision ofsecurity is a mandatory condition precedent before a stay for execution can be granted. It has not been satisfied in this case.

Another condition to be considered before a grant of stay of execution can be m:ide is \*bat th\*' rtoplR?nt will suffer substantial loss unless stay is granted. This %"C> of Geoffrey Nangumya in support of this application paragraph <sup>S</sup> states as follows: application does not show how the applicant will suffer substantial loss. In the affidavit

**I**

That the applicant stands to suffer great inconvenience and financial embarrassment if execution is levied before the appeal is heard and disposed of." <sup>I</sup> do not know what is meant by "great inconvenience and financial embarrassment" and no occasioned. effort was made by the applicant to show how substantial loss was going to be

the applicant to provide security as required by Order 39 Rule 3 <sup>I</sup> dismiss this application with costs to the respondent. In conclusion <sup>1</sup> find no merit in the application and sempUed- with the failure of

### MWANGUSYA

# JUDGE 2/2/2001

Order:

As <sup>1</sup> am currently on leave the Deputy Registrar, Civil is directed to <sup>K</sup> deliver this ruling.

## (SGD) MWANGUSYA

JUDGE

• 2/2/2001

5/2/2001

**I**

Plaintiff present