Muyunga & Another v Namubiru & Another (Civil Application 668 of 2024) [2025] UGCA 43 (13 February 2025)

Full Case Text

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

### crvrL APPLTCATToN NO.658 0F 2024

### l0 (ARTSTNG OUT OF CIUL APPEAL NO.0974 OF 20241

# 1. DAVID MUYUNGA 2. MUYUNGA JOHN KALUMBA

APPLICANTS

### l5 VERSUS

# NAM UBIRU ROSETTE TERUSONYIWA (ADMINITRATR|X OF THE ESTATE OF THE LATE FESTO BUGIMBI KULAZIKULABE) 20 (DEFENDING THROUGH HER LAWFUL ATTORNEY SSERUFUSA EDWARD MULEMA)

RESPONDENT

## Before Hon. Justice Moses Kazibwe Kawumi JA. (Sitting as a single Judge)

### RULING

This Application was brought under Rules 2 (2), 6 (2) (b), 43 and 44(1) of the Judicature (Court of Appeal Rules) Directions S.l. 13-10 seeking for ;-

a) A stay of execution restraining the Respondent, her agents and assignees from enforcing the Ruling and orders of the High Court (Family Division) in Miscellaneous Application No. 752 of 2024 until the determination of Civil Appea! No. 0974 of 2024 pending in this Court.

b) The costs of this Application be provided for

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### 5 Background

The Applicants are the Administrators of the estate of late Nekemiya Bugimbi while the Respondent is the Administratrix of the estate of late Festo Bugimbi . The Respondent and her siblings are beneficiaries r0 of 28 acres of land in the estate of Nekemiya Bugimbi forming part of Block 4 Plot L of land at Buvu Ssesse islands. ln a bid to realize their

- inheritance, the Respondent lodged Civi! Suit No.275 of 2022 against the Applicants and others in the Family Division of the High Court. - rs A consent settlement was entered on zg'h August 2023 with the Applicants undertaking to process and hand over the Land title and transfer documents to the Respondent within six (6) months from 28th July 2022. The Applicants did not meet their part of the bargain prompting the Respondent to file Miscellaneous Application No.752 of - 20 2024 for contempt of court against the Applicants.

On 23'd October 2024, the court ruled in favour of the Respondent committing the Applicants to civil Prison for six(6) months upon which they filed Civil Appeal No.0974 of 2024 in this court and further filed 2s the present application.

The grounds of the Application are that the appeal raises serious questions of law and has high chances of success. lt is also contended that the Applicants will suffer irreparable damage if execution ensues 30 and the appeal will be rendered nugatory. The Applicants claim that there is an imminent threat of their arrest since the Ruling was delivered by the High Court.

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s ln justification of the failure to abide by the dictates of the Consent settlement, the Applicants contend that the Respondent lodged a caveat on the land comprised in Block 4 Plot L before the expiry of the six months' period within which they had to surrender the title and transfer forms to her and they were thus barred from completing the lo transaction in her favour.

The Applicants further fault the tria! Judge for not considering their submissions in the Ruling she delivered on23rd October 2024 and thus challenge the decision that they were in contempt yet it was the ls Respondent who acted in contempt of court by lodging the caveat on the land she was supposed to benefit from.

The Respondent's Appointed Attorney, Sserufusa Edward Mulema filed an incoherent and rambling Affidavit in Reply the gist of which 20 appears to be a denial of the averments made by the Applicants. ln compliance with Article 126(2Xb) of the Constitution, I maintained it on the court record. The decision was also based on the fact Counsel for the Applicants filed a Re-joinder to it reiterating the contents of the one in support of the Application.

### Representation.

Mr. Andrew Wabwezi appeared for the Applicants and the Respondent's Attorney was in court. The submissions filed by the parties were adopted by court as their final arguments for the 30 determination of the Application.

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# s Submissions.

Counsel for the Applicant re-stated the conditions that must be in place for the court to grant an order for stay of execution as laid out in various authorities by both the Court of Appeal and the Supreme Court. lt was his submission that the Applicants had met all the l0 conditions and urged the court to grant the application pending the determination of the appeal.

The Respondent urged the court to dismiss the application arguing that it lacked merit since they had taken advantage of the Consent 15 Settlement to have the suit against them withdrawn subsequent to which they sold off some Iand to Muslim Charity Foundation without the consent ofthe Respondent.

The Respondent's Attorney further submitted that the Applicants also 20 rebuffed a proposal to abide by the Consent Settlement terms in a mediation encounter before the Resident District Commissioner at Kasangati. The court was urged to dismiss the Application with costs.

### Consideration of Court

I have considered the application, the affidavit in support, in reply and in rejoinder as well as the submissions on record and the authorities cited by the parties.

The mandate of this court to order for stay of execution of decrees is 30 derived from Rule 5 (2) (b) of the Judicature (Court of Appeal Rules) Directions. Sl 13-10. The Rule provides that;-

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5 "Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may---

> (b) in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just."

ln Theodore Ssekikubo & 3 Others V The Attorney General & 4 others. [2013] UGSC 21 the Supreme Court re-stated the principles to ls consider before granting an order of stay of execution pending appeal. The principles are :-

- i) !t must be established that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. - 20

- ii) The application must establish that the appeal has a likelihood of succ€sS; or a prima facie case of his right to appea!. - iii)lf (i) and (ii) above have not been established, the court must consider where the balance of convenience lies. - iv)That the applicant must establish that the application was instituted without delay. - 30 I will be guided by the above principles to determine whether the Applicant has met the conditions necessary for the grant of the sought relief.

- s The Applicants fited the instant Application on L4th November 2024 following the Ruling of the trial court delivered on 23'd October 2024 and the dismissal of their applications for an interim relief in the High Court. !t is without doubt that they instituted the application without delay. - l0 The Applicants are required to show that the Appea! pending before the court has any likelihood of success if the court is to grant the application for the sought relief. A Memorandum of Appeal with five (5) grounds was lodged by the Applicants. The grounds of appeal are;- - 1. The Learned Judge erred in Law and fact in holding that the Appellants had the ability to comply with the Consent Judgment after the caveat had been instituted by the Respondent. - 2. The Learned Judge erred in law and fact in assuming that by the Appellants commencing with the sub -division of the Moslem Charity Foundation they would not process and hand over residual Land title at SSese Buvu on Block 4 Plot 1 measuring 28 acres to the Respondent and others. - 25 3. The Learned Judge erred in law and fact in holding that the Appellants were in contempt of court. - 4. The Learned Judge erred in law and fact in holding that it was necessary and reasonable for the Respondent to institute a caveat on the subject land barely one month after the Consent Judgment. - 5. The learned Judge erred in law and fact when she made her decision solely based on written submissions of the

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# 5 Respondent in exclusion of written submissions of the Appellants.

I am mindfu! of the mandate of this court being to make a determination as to whether the appeal is frivolous or vexatious but not to delve into its ful! merits, which is the preserve of the full bench lo of the court.

ln order for the Applicants to succeed on this ground, they must place before Court material that goes beyond a mere statement that the appeal has a likelihood of success as held in Osman Kassim Ramathan V Century Bottling Company Limited, SC Civi! Application No.34 ot rs 2019.

The gist of the appeal as derived from the Memorandum is that the trial Judge erred in ruling that the Applicants had the competence to execute the Consent settlement despite the caveat lodged by the Respondent.

20 A determination of whether the appeal is arguable and has a likelihood of success calls for an appreciation of the sequence of the events following the endorsement of the Consent Judgment. The Consent Judgment was executed on 2g'h August 2023 and the Applicants had six months within which to hand over the title and 2s transfer forms to the Respondent the latest date being 2nd March 2024.

The Respondent lodged the impugned caveat on 26th Septemb er 2023 but vacated it on LOth June 2}24.lf the court was to assume that the Applicants had the will to meet their part of the bargain in the Consent 30 Settlement, they would have completed the mutation process and

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s handed over the residue title with transfer forms to the Respondent by L0th Decembe r 2024.

The Applicants had by the time the High Court issued the impugned Ruling on 23'd October 2024 not shown any steps towards handing over the title and transfer forms to the Respondent. Even at the time r0 of filing the instant application on L4th November 2024 and the subsequent hearing on 25th January 2025, the Appticants had not handed over the documents to the Respondent.

On account of the Applicants conduct per se as demonstrated from the sequence of events following the execution of the Consent 15 Settlement, the appea! has no likelihood of success. lt was merely filed for purposes of this application which would only succeed if there was proof that the certificate of title and the transfer forms were ready for delivery to the Respondent.

The claim to the possible suffering of irreparable injury/damage would 20 not also hold. ln a successful application for contempt of court, the contemnor who fails to purge himself/herself of the accusation naturally expects to either be committed to civil prison or be condemned to a penalty which are the natural consequences of the contempt proceedings.

- 2s The Applicants knew of the lawfully existing Consent Settlement, had the ability to comply with it at least from the time the Respondent vacated the caveat, but failed to comply with it. On endorsement by the Registrar, the Consent Settlement became an order of the court. Granting the sought stay of execution and on such a frivolous appeal 30 would only amount to facilitating further abuse of the Order by the - High Court.

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ln conclusion, the Applicants failed to prove that they filed an Appeal with a likelihood of success and further failed to prove that they will suffer irreparable injury once arrested for the contempt of the Consent Settlement voluntarily entered into with the Respondent. I do l0 not find it necessary to canvass the principle on the balance of convenrence

! make the following orders.

L. The application is devoid of merit and is hereby dismissed.

15 2. The Applicants shall pay the costs of the application to the Respondent.

Dated and delivered at Kampala this " l4'. V "f "' 2025

Moses Kazibwe Kawumi Justice of Appeal

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