Nakitto Eva Kasule v Painento Semalulu (Miscellaneous Application 381 of 2024) [2025] UGHC 362 (2 May 2025)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT LUWERO**

# **MISCELLANEOUS APPLICATION NO.0381 OF 2024**

# **ARISING OUT OF CIVIL APPEAL NO. 04 OF 2008**

**NAKITTO EVA KASULE :::::::::::::::::::::::::::::::::::::::::: APPLICANT**

### **(Through her lawful attorney Sendyona Mukasa Edward)**

### **VERSUS**

## **PAINENTO SEMALULU::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **RULING**

### **Background**

This Application is brought under Section 98 of the Civil Procedure Act, Section 38(3) of the Judicature Act, Order 22 rules 23 and 89 and Order 55 rules (1) and (3) of the Civil Procedure Rules, seeking orders that this court issues a stay of execution of the orders passed in Civil Appeal No. 04 of 2008 until the hearing and final determination of the Appeal lodged in the Court of Appeal by the Applicant and costs for the Application

The Respondent opposed this Application through an Affidavit in Reply that was deponed by Painento Semalulu and prayed that this Application be dismissed with costs to the Respondent.

In the determination of this suit, the court shall adopt and be guided by the issues raised by the parties;

- 1. Whether there are sufficient grounds for a stay of execution of orders passed in the High Court Civil Appeal No. 04 of 2008. - 2. What remedies are available to the parties?

## **Representation**

The Applicant was represented by her lawful attorney Sendyona Mukasa Edward while the Respondent was represented by Vivian Nakubulwa.

## **Determination of the Application**

# **Issue 1: Whether there are sufficient grounds for a stay of execution of the orders passed in the High Court Civil Appeal No. 04 of 2008.**

Page **1** of **4**

The Applicant's lawful Attorney submitted that the Applicant has filed an Appeal at the Court of Appeal of Uganda vide Civil Appeal No. C. A 0097 of 2024 which has a high likelihood of success. He also submitted that there is a serious threat of execution against the Applicant who was served with a notice of eviction. Finally, he submitted that if this Application is not granted, substantial loss will result because the suit land is where the Applicant has a permanent house and derives sustenance and that it is where the Applicant's ancestral burial grounds are located.

In reply, counsel for the Respondent submitted that there is no valid pending appeal before the Court of Appeal from which this Application is arising reason being that the judgement in HC Civil Appeal No. 004 of 2008 was delivered on the 27th day of April 2017 yet the Applicant only lodged a Notice of Appeal on 31st October 2024 which is more than seven years since the Judgement was passed. She further submitted that the Applicant did not take any steps to pursue the alleged appeal and as such this court should be pleased to dismiss the Application with costs to the Respondent.

### **Determination.**

I have taken into consideration the submissions of both parties to this suit The jurisdiction of this Court to grant a stay of execution is set out in **rule 6 (2) (b) of the Judicature (Court of Appeal) Directions** which states;

*"Subject to subrule (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." (*Emphasis is mine.)

Pursuant to the above rule, the jurisdiction of this Court to stay execution is invoked where the Applicant has filed a notice of appeal in accordance with rule 76 of the Judicature (Court of Appeal) Directions. Where a Notice of Appeal has not been lodged in accordance with rule 76 of these rules, then the jurisdiction of this court to grant a stay of execution is curtailed. Rule 76 (1) & (2) of these rules states that every person who wishes to appeal to the Court of Appeal shall file a written Notice of Appeal to the Registrar within fourteen days from the date of the decision. The said rule states as follows;

*"76. Notice of appeal in civil appeals*

Page **2** of **4**

*(1) Any person who desires to appeal to the court shall give notice in writing, which shall be lodged in duplicate with the registrar of the High Court.*

*(2) Every notice under subrule (1) of this rule shall, subject to rules 83 and 95 of these Rules, be lodged within fourteen days after the date of the decision against which it is desired to appeal." (*Emphasis is mine)

In the case of **Yoramu Kasinde and Another V Kihonde Samuel and Another Court of Appeal Civil Appeal Civil Application No. 259 2018**, Justice Madrama held;

"*Rule 76 (2) provides that every notice provided for under sub rule 1 shall be lodged within 14 days after the date of the decision against which it is desired to appeal. In considering the issue as to whether a notice of appeal has been lodged in accordance with rule 76, it is also necessary to preliminarily consider whether the notice of appeal was lodged within the 14 days after the date of the decision against which it is desired to appeal.*

*…*

*There is no application for extension of time in this application. Secondly, it is conceded that the applicant's notice of appeal is defective having been served out of time in the main application. That means that there is no competent notice of appeal or appeal pending before the court…"*

## See also *Kabagambe and 2 others Vs Kekikugwa Ntungwa Miscellaneous Application No. 110 of 2020.*

I have noted that the Applicants filed two notices of Appeal at two different intervals. The first Notice of Appeal was filed on the 5 th day of May 2019 as is evidenced in *Annexture B* to the Affidavit in Rejoinder. The second Notice of Appeal was lodged in this court on the 12th day of November 2024. It should be noted that both these notices of Appeal were not filed in accordance with the provisions of rule 76 (2) of the Judicature (Court of Appeal) Directions since they were filed after the 14 days prescribed by the law. The decision in High Court Civil Appeal No. 04 of 2008 was delivered on the 27th day of April 2017 as evidenced in *Annexture B* of the Affidavit in Reply. It is at this point that the 14 days within which to file the notice of Appeal started running. This means that the intending Appellant who is the Applicant in this Application had to have filed her Notice of Appeal by the 28th day of April 2017. Therefore, the first Notice of Appeal which was filed on the 5th day of May 2019 was filed over two years out of time while the second Notice of Appeal which was filed on the 12th


day of November 2024 was filed over seven years out of time. This therefore means that none of these Notices of Appeal conforms to the law set out above.

I am alive to submissions by Applicant's lawful Attorney that the failure to file the first notice of appeal, memorandum of appeal and other documents was a mistake of counsel that should not be visited on the Applicant. For all intents and purposes, this could be a very good and valid reason if proven by the Applicant that can move this court to extend the time within which to file the Notice of Appeal. However, this Court has not received any Application to extend time within which to file the Notice of Appeal. In the circumstances, the Applicant's lawful Attorney is advancing a seemingly possible argument without audience and on the wrong forum. For the above reasons, I will not entertain this argument advanced the Applicant's lawful Attorney.

Therefore, I am constrained to determine this Application on its merits because this court does not have the jurisdiction to grant the orders sought therein since there was no notice of Appeal lodged to this court in accordance with the provisions of rule 76 (2) of the Judicature (Court of Appeal) Directions.

#### **Issue 2: What remedies are available to the parties?**

From the foregoing, this Application is hereby dismissed with costs to the Respondent.

I so order.

**………………………………………………………………….**

#### **FARIDAH SHAMILAH BUKIRWA NTAMBI**

**AG. JUDGE**

**Delivered on ECCMIS on 2nd May 2025.**