Nyakabwa and Another v Kalimbi and 2 Others (Miscellaneous Application 26 of 2024) [2024] UGHC 1038 (17 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **MISC. APPLICATION NO. 26 OF 2024 (ARISING FROM CIVIL MISC. APPLICATION NO. 0025 OF 2023) (ARISING FROM CIVIL SUIT NO. 0014 OF 2016)**

# 6 **1. DANIEL NYAKABWA**

### **2. DAMALIE KAIRUMBA :::::::::::::::::::::::::::::: APPLICANTS**

**(Suing as Administrators of the Estate of the late Kasa Kairumba**

9 **& for beneficiaries of the will of late Joseph Kairumba Rusongoza)**

#### **VERSUS**

**1. KENNETH KALIMBI**

# 12 **2. ROBINA BWITA**

# **3. COMMISSIONER FOR LAND REGISTRATION ::: RESPONDENTS BEFORE: HON. JUSTICE VINCENT WAGONA**

15 **RULING**

# **Introduction:**

The application was brought under section 98 of the Civil Procedure Act, section 33

- 18 of the Judicature Act and Order 43 rule 4 of the Civil Procedure Rules seeking: - *(a)A stay of execution of the judgment and orders of this court in Civil Suit No. 0014 of 2016 be granted.* - 21 *(b)That the costs of taking out the application be provided for.* **Gronds of the Application:**

The grounds of the application are particularized in the affidavit of Damalie Kairumba, the 1st 24 applicant stating that:


- (1)The judgment in Civil Suit No. 0014 of 2016 was delivered in favour of the respondents, court having dismissed the same with costs. - (2)They were not aware of the judgment date and only heard from the 2nd 3 respondent who claimed that he had won the case and placed the suit land on market for sale. - 6 (3)Being dissatisfied with the decision, they intend to appeal to the Court of Appeal and have since through their lawyers filed a notice of appeal and a letter asking for a typed record of proceedings. - 9 (4)The appeal has high likelihood of success yet there are imminent threats of execution of the unjust orders in Civil Suit No. 0014 of 2016. - (5)If this application is not granted, the applicant shall suffer irreparable injuries - 12 which shall render the appeal nugatory.

# **Reply of the Respondents:**

The application was opposed by the 1st and 2nd Respondents who jointly averred as 15 follows:

- (1)Civil Suit No. 0014 of 2016 was dismissed with costs to respondents. - (2)The respondents have not made any effort to execute the orders of court since - 18 there is pending application for execution as such the application for stay was premature. - (3)The applicants do not own the land and there is no loss they shall suffer if the - 21 application is denied. - (4)It is fair and just that the application is dismissed with costs.

# **Representation and hearing:**

24 *Mr. Ewalu Ronald* appeared for the applicants while *Mr. Wahinda Enock* appeared for the 1st and 2nd Respondents. Both counsel addressed me on the competence of the application by way of written submission.


#### **Issues:**

3 **(1)Whether the application meets the test for grant a stay of execution. (2)What remedies are available in the circumstances?**

# **Consideration:**

6 Order 43 Rule 4 (1), (2) and (3) of the CPR states as follows:

#### **Stay by High Court.**

- *(1)An appeal to the High Court shall not operate as a stay of proceedings under* 9 *a decree or order appealed from except so far as the High Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the High Court may for sufficient cause* 12 *order stay of execution of the decree.* - *(2)Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing from the decree, the* - 15 *court which passed the decree may on sufficient cause being shown order the execution to be stayed.* - *(3)No order for stay of execution shall be made under sub rule (1) or (2) of this* 18 *rule unless the court making it is satisfied—* - *(a) that substantial loss may result to the party applying for stay of execution unless the order is made;* - 21 *(b)that the application has been made without unreasonable delay; and* - *(c) that security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him or her.*


In **Lawrence Musiitwa Kyazze -Vs - Eunice Busingye, SC. Civil Application No. 18 of 1990***,* it was stated that *"Parties asking for a stay"* should satisfy the 3 following:

> *"(1) That substantial loss may result to the applicant unless the order is made. (2) That the application has been made without unreasonable delay.*

6 *(3) That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him."*

- 9 In **Dr. Ahmed Muhammed Kisule v Greenland Bank (in Liquidation), Supreme Court Civil Application No. 7 of 2010***,* it was stated that there must be proof of lodgment of an appeal in the appellate court. In the case of the Supreme Court, the - 12 applicant should have lodged a notice of appeal in the Court of Appeal.

# In **Kyambogo University Vs. Prof. Isiah Omolo Ndiege, C. A. C. A No. 341 of 2013**

- 15 Justice Kakuru, JCA observed that in an application for stay the applicant must prove in addition to other grounds; *(a) That there is a serious and imminent threat of execution of the decree or order and (b) That refusal to grant the stay would inflict* - 18 *greater hardship than it would avoid.*

Learned counsel for the respondent contended that current application has no merit

- 21 since it seeks to stay execution which has not been commenced. He cited the case of *Isingoma Edward v Registered Trustees of Church of Uganda & Anor, HCMA No. 23 of 2023 & Alupal Kakas Wilfred v Aisu Popuras, HCMA No. 52 of 2022* - 24 where court noted that an application which seeks to stay execution which is none existent constitute an abuse of Court process. He thus asked court to strike out the application with costs. There was no counter argument from counsel for the - 27 applicants on this issue.


In this case, the applicants filed Misc. Application No. 025 of 2024 for leave to appeal against the decision of this court in Civil Suit No. 0014 of 2016 which was 3 allowed. This was an expression of intention to appeal which is sufficient for purposes of stay. Secondly, it was not disputed by the learned counsel for the Respondent that the application was filed without inordinate delay.

The contestation by the Respondent is that there is no process of execution which was commenced by the applicants which they applicant seeks to stay. This would 9 mean that there is no loss the applicant shall suffer or prejudice if the application is denied since there is no execution in the first place.

12 The distinguishing feature in *Isingoma Edward v Registered Trustees of Church of Uganda & Anor, HCMA No. 23 of 2023 & Alupal Kakas Wilfred v Aisu Popuras, HCMA No. 52 of 2022,* cited for the respondents, is that there, no bills of costs had 15 been taxed and as such there was no sign of imminent execution. In the present case, the respondent filed a bill of costs under Taxation Application No. 001 of 2024. The bill was taxed by the Deputy Registrar and allowed at shs 17,620,000/= per the certificate of taxation dated 4 18 th April 2024. These steps clearly are a process of imminent execution (See: *Daniel Nyakabwa&Anor v Kenneth Kalimbi Kairumba & 2 others, HCMA NO. 0027 OF 2024*). Therefore, I disagree with the submissions 21 by Mr. Wahinda that execution has not commenced. The respondents in my

evaluation commenced execution by filing the bill and having it taxed. This poses a threat of execution against the applicants. Further, in the event a stay is not granted, 24 the respondents shall continue with the execution process they have started.

On security for costs, it is intended to operate as a shield against the filing of 27 frivolous and vexatious appeals which may never succeed yet have an effect in


escalating trial cost (See: **Shem Mpanga Mukasa & Anor Vs. Kizza Clessy Barya, Misc. Application No. 479 of 2021**), while guarding against frustrating a party's 3 right to prosecute his or her appeal. The requirement to deposit security for cost should not be used as a punishment to the applicant or used as a mechanism to frustrate his appeal (**See: The New Vision Publishing Corporation & 2 others Vs.** 6 **Peter Kaggwa, HCMA 127 of 2006).**

In the present suit, learned counsel for the Respondent prayed for a sum of shs 9 30,000,000 to be deposited as security for costs. Learned counsel for the applicants did not make a response on this issue. I have examined the facts of this case and the propriety of the intended appeal. The case was dismissed on a point of law the same 12 having been filed in a representative capacity without securing a representative order. The applicants in this case did not plead that if security for costs is ordered, they would be unable to pay, having the potential effect of frustrating the appeal. I 15 find it deserving that the applicants pay security for costs. Therefore, this application succeeds with the following orders:

**1. An order of stay of execution of the decree and orders in Civil Suit No.** 18 **0014 of 2016 is granted to remain in force till the final determination of the intended appeal in the Court of Appeal.**

**2. The above order is pegged on the condition that the applicants shall** 21 **deposit 50% of the taxed costs as security for costs within 30 days from the date of delivery of this ruling.**

**3. In the event the sum in (2) above is not paid within the time frame** 24 **provided, this application shall stand dismissed with costs to the respondents and execution shall proceed.**


**4. The costs of taking out this application shall abide the outcome of the intended appeal in the event the applicants comply with the order in (2)** 3 **above.**

**It is so ordered.**


6 Vincent Wagona

**High Court Judge FORTPORTAL**

9 **DATE: 17/10/2024**