Nangoye & 2 Others v Midi (Civil Application 460 of 2023) [2024] UGCA 143 (10 June 2024)

#### THE REPUBLIC OF UGANDA

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

#### CIVIL APPLICATION NO. 460 OF 2023

#### ARISING FROM CIVIL APPEAL NO. 265 OF 2023

[Arising from H. C. C. S No.172 OF 2014]

#### 1. NANGOYE JANE

#### 2. MMEMERE GERALD

#### 3. NANSUBUGA IMELIDA

(Administrators of the estate of

the late Lwandasa Kaloli) **:::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

MIDI FIRIDA WAMPA :::::::::::::::::::::::::::::::::::

#### **BEFORE: HON JUSTICE OSCAR KIHIKA, JA**

*(Sitting as a single Justice)*

#### **RULING OF COURT**

This application was brought under Rules $2(2)$ , $6(2)(b)$ , $43(1)$ and 44(1) of the Judicature (Court of Appeal Rules) Directions SI 13-10 and Section 33 of the Judicature Act seeking for orders that;

1. Execution of the Judgement and Decree in HCCS No. Civil Suit No. 172 of 2014 be stayed pending the hearing and final determination of the Civil Appeal No. 265 of 2023 in the Court of Appeal.

- 2. The status quo of the suit land be maintained as it is till the appeal is heard and determined. - 3. Costs of tle application abide the outcome of the appeal.

The application is supported by the a-ffidavit of NANSUBUGA IMELDA sworn on the 27rh of July 2023. The grounds upon which this application is premised are laid out in the Notice of Motion and the affidavit in support and are briefly that;

- 1. The Respondents sued the Applicants in the High Court vide HCCS No. 172 of 2Ol4 for a declaration that the land comprised in Kyadondo Block 265 Plot 1799 at Bunamwaya does not form part of the estate of the late Lwandasa Kaloli and that the Respondent is the benehcial owner of the suit land. - 2. Court delivered its judgment on 31"t August 2022 and decreed the suit land to the Respondent as the benefrcial owner of the suit land directing the Applicants to deliver the Title together with the necessary documents to the Registrar of the Court to enable the transfer of the land within two weeks of delivery of the Judgment. - 3. The Applicants were dissatished with the decision of the trial court and filed an appeal in this court vide Civil Appeal No. 265 of 2023 and the same is pending before this court. - 4. The Applicants frled an application for stay of execution in the High Court vide Miscellaneous Application No. 892 of 2023 and the same was dismissed on grounds that there was no threat of execution.

- 5. The Respondent has since applied to court seeking execution of the decree and has demolished some of the structures on the suit property currently making fresh construction on the suit land. - 6. The Applicant's appeal has a likelihood of success. - 7. The Applicants will suffer irreparable damage once execution is allowed to proceed and the Applicants will lose their beneficial share of the suit property

The Respondents frled an affidavit in reply deponed by MIDI FIRIDA WAMPA sworrr on the 6tt of September 2023 opposing the application on the grounds that;

- 1. The Respondent was the successful party in H. C. C. S No. 172 of 2014 but the Applicants refused to comply with the court orders to deliver the duplicate certificate of title and signed transfer forms to court. - 2. The application for stay of execution was filed in November 2022 but abandoned in court and there is no threat of execution. - 3. There is no application for execution of the decree. - 4. The Respondent is the decree holder and will most likely be inconvenienced in case the execution of the decree is stayed. - 5. The appeal in this court is frivolous and vexatious with no likelihood of success.

### Representation

At the hearing of this application, Mr. Abbas Bukenya appeared for the Applicants, with the 1"t and 3'd Applicants in attendance, while Mr. Segamwenge Hudson appeared for the respondent.

### Consideration of the application

I have carefully considered the afhdavits and the submissions of both parties. I have also perused the authorities provided by counsel for which I am grateful.

The jurisdiction of this court to grant a stay of execution stems from Rule 6 (2) (bl of the Rules of this Court which provides that;

6. Suspension of sentence and stay of execution.

(2) fubject to subntle (1) of this rule, the instihttion of an appeal shall not operate to suspend ang sentence or to stag execution, but the court maa-

(a) ...

(b) in ang ciuil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stag of executiory an injunction, or a stay of proceedings on such terms as the court mag think just.

The Supreme Court in the application by Hon. Theodore Ssekikubo & Others vs. The Attorney General and Another, Constitutional Application No O6 of 2O13 clearly re-stated the principles as follows:

In order for the Court to grant an application for a stay of execution;

"(1) The appllcatlon must estdbltsh that hls appeal has a Itkelthood ojfsuccessl or a prlma focle case of hls rl.ght to oppeal

(2) It must also be establlshed that thc Appllcant ulll suffer lrreparable damage or that the appeol uttll be rendered nugatory lf a stag is not gronted.

(3) If 1 and 2 qboae has not been establlshed, Court must conslder uhere the balo,nce of conaenlence lles.

# (4) That thc Appltcant must olso establtsh that thc appllcatlon wos lnstlhtted utlthout delag.'

The issue for determination by the Court is whether the Applicants have adduced suff,rcient reasons to justify the grant of a stay of execution.

## L. Prlma focie case with likelihood of succesa

Regarding the issue of likelihood of success, the Applicants state in the aff,rdavit in support of the application deponed by Nansubuga Imelda paragraph 9, that the appeal has a likelihood of success and stated the issues for court to determine in the appeal. Paragraph 9 states as follows;

# n9. That our appeal ls not frlaolous and has a htgh llkellhood o.f success ln sofar as,

- o) The leanted Judge erred ln Laut and fact when she held that the undlstrlbuted portlon uthlchform.s part of the sult land utas equltablg dlstrlbuted to the respond.ent uthereas not hence reachlng d wrong declslon. - b) The leanted trtal &tdge erred ln lo,ut and fact uhen she held that the respondent's occupatlon of the srlt land utq.s unchallenged. bg the late Lwq.nd.osa Kaloll hence arrlulng at a urong declslon. - c) The Learned Judge erred ln laut and. fact when she held thqt the respond.ent ls the beneffclal owner of all the land comprlsed ln Kgadondo Block 265 Plot 7799 Lo.nd at Bunamutaga meosurlng one (7) acre lt belng her beneff.clal share from the estate of the late Noue Sseto,bba. - d) The learned trtal Judge erred ln law qnd fact uthen she held that the sult land hod been equltoblg dtstributed to the respondent contrary to the utlll of hence reachlng a urrong d.eclslon. - e) The leanred trlal Judge erred ln law uthen she relied on the Judgment tn Ctutl Sult .l\Io. 177 of 7999 uhereln thc facts at hqnd were neuer consldered. bg court and held that the sult land does not form part of the estate of the land Kaloll Lwandasa, therebg arrlulng at a urong declslon. - fi Tl@ learned trlal Judge erred ln law qnd foct when she falled to properlg eaaluate the ealdence on record as q whole therebg arrlvlng at a urong decislon and. occaslonlng a mlscarrl.age of Justlce."

From my perusal of the Applicant's grounds of appeal, I frnd that the Applicant has raised points of law and fact which ought to be argued on appeal. It was held in Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] e KLR that; "An arguable appeal is not one which must necessaily succeed, but one uhich ought to be argued fuUg before the court; one which is not fiuolous. " This authority is of high persuasive value and I agree with the holding therein.

I therefore find that the Applicants have established that they have a prima facie case on appeal.

## 2. Irreparable damage

The second consideration is whether the Applicants will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted.

The term "irreparable damage' is defined in Black's Law Dictionary, 96 Edition at page 447 to mean;

"Damages that cannot be easilg ascertained because there is no fixed peanniary standard measurement"

In my understanding, the Applicant has to show that the damage bound to be suffered is such that it cannot be undone or compensated for in damages. In Giella v. Cassman Brown & Co. [1973] E. A 358, it was held that by irreparable injury, it does not mean that there must not be physical possibility of repairing the injury, but it means that the injury or damage must be substantial

or a material one, that is; one that cannot be adequately atoned for in damages.

In the instant case, the Applicants stated in paragraphs 10 and 11 of the afhdavit in support of the application that they will suffer irreparable loss if execution ensures and lose their share in the estate of their late father, Kaloli Lwandasa. The property at stake forms part of the estate of the deceased Lwandasa and is being occupied by the Applicants together with the Respondent occupying part of the land. According to paragraph 16 of the Applicant's affidavit in support of the application, the Respondent occupies 4 out of the 8 houses on the suit land and the rest are occupied by the Applicants.

The Applicants argue that they might be completely evicted from the suit land and hence suffer irreparable damage. Further, that the Applicants are at a threat of being committed to civil prison for failure to hand the duplicate certihcate of title to the court registrar. The application for execution is attached to the affidavit in support of the application and marked annexure 'H', indicating execution by way of arrest and committal to civil prison.

I therefore find that the Applicant has satisfied this court that she will suffer irreparable damage if this application is not granted.

Having found as I have above, I find no reason to delve into the issue of balance of convenience for reasons that court should only consider the ba-lance of convenience where it is in doubt.

I therefore frnd that the Applicant has made out a case for issuance of an order of stay of execution and I hereby allow this application with the following orders;

- 1. An order for stay of execution of the Decree in HCCS No. Civil Suit No. 172 of 2Ol4 be stayed pending the hearing and final determination of the Civil Appeal No. 265 of 2023 in the Court of Appeal. - 2. The status quo of the suit land be maintained as it is till the appeal is heard and determined. - 3. Costs shall abide the outcome of the appeal.

I so order

Dated this rctr day of .. <sup>2024</sup> 1.vrrr\

v OSCAR KIHIKA JUSTICE OF