Nyakabwa and Another v Kalimbi Kairumba and 2 Others (HCT-01-CV-MA 27 of 2024) [2024] UGHC 745 (3 May 2024)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

## 3 **HCT – 01 – CV – MA -0027 OF 2024**

### **(ARISING FROM MISC. APPLICATION NO. 26 OF 2024)**

### **(ORIGINATING FROM CIVIL SUIT NO. 0014 OF 2016)**

#### 6 **1. DANIEL NYAKABWA**

**2. DAMALIE KAIRUMBA ======================= APPLICANTS**

**(Admin of the Estate of the late Christopher Kasa Kairumba**

9 **and for the beneficiaries of the late Joseph Kairumba Rusongoza)**

### **VERSUS**

- **1. KENNETH KALIMBI KAIRUMBA** - 12 **2. ROBINA BWITA** - **3. COMMISSIONER LAND REGISTRATION ===== RESPONDENTS**

### **BEFORE: HON. JUSTICE VINCENT WAGONA**

# 15 **RULING**

The application brought this application under section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and order 52 rule 1, 2 and 3 of the Civil Procedure 18 Rules for:

- **1. An interim order of stay of Execution of the Judgment and orders in Civil Suit No. 14 of 2014** - 21 **2. Costs of taking out the application be provided for.**


The application is supported by the affidavit of Damalie Kairumba, the 1st applicant who deposed as follows:

- 3 1. That they filed Civil Suit No. 14 of 2016 seeking to recover 30 acres of land comprised in Block 7, Plot 69, Land at Bumungu among other prayers. That judgment was delivered in the above case in favour of the Respondents. - 6 2. That judgment in the above case was delivered in their absence. That whenever, they would follow up on the same, they were be told that the same was not ready. That they came to learn of the judgment when the 2nd 9 Respondent claimed he won the case and put the land on the market for sale. - 3. That being aggrieved with the said decision, they intend to appeal to the Court of Appeal and they lodged a notice of appeal and a letter requesting for a typed 12 record of proceedings which documents were duly served upon the Respondents. - 4. That they lodged an application for leave to appeal out of time and one for 15 stay of execution which are still pending determination by Court. That there is serious and imminent threat of execution of the orders in Civil Suit No. 00014 of 2016 which is unjust to them - 18 5. That they shall suffer great prejudice since their application for leave and stay shall be rendered nugatory if the sale is allowed to take place. That it is just, fair and equitable that the application is granted since it was brought without 21 inordinate delay.

The application opposed by the affidavits in reply of Mr. Kenneth Kalimba Kairumba and Robina Bwita, the 1st and 2nd Respondents who averred as follows:


- 1. That whereas the suit by the applicants was dismissed with costs, no effort has been made to commence execution and there is no pending execution to stay. - 3 2. That the application is premature before court and an abuse of court process since no effort has been made to execute the orders of court in Civil Suit No. 0014 of 2016. - 6 3. That there is no pending appeal since the judgment was delivered on 30/11/2023 and the notice of appeal was filed on 8/2/2024 and that the applicants shall not suffer any prejudice since the land in issue is lawfully owned by the 2nd 9 Respondent.

In rejoinder, it was stated by Damalie Kairumba that:

- 1. That the Respondents are looking for market to dispose of the land which shall 12 be at their detriment thus the application should be allowed to preserve the suit land. - 2. That the Respondents filed their bill which was taxed and its awaiting 15 execution. That they filed a notice of appeal, a letter requesting for the record of proceedings and filed an application to have the same validated. - 3. That they were not aware that the judgment was delivered and the land in issue 18 belongs to the estate of the late Joseph Kairumba Rusongoza and thus the Respondents are not the lawful owners of the suit land. That the application ought to be allowed to protect the status quo.

#### 21 **Representation and Hearing:**

M/s Geoffrey Nangumya & Co. Advocates represented applicants while M/s Ahabwe James & Co. Advocates represented the 1st and 2nd Respondents. Both 24 counsel addressed me by way of written submissions which I have duly considered.


#### **Issues:**

- **1. Whether this is a proper case for grant of an interim stay of execution.** - 3 **2. What remedies are available to the parties?**

#### **Consideration:**

I have taken into account the submissions of both parties and their pleadings. An 6 interim order of stay is a temporary legal relief issued by court to preserve the prevailing status quo pending the determination of the main application for stay. It is intended to offer temporary protection or avert an imminent threat to property or 9 the subject in dispute pending the investigation of the merits of the substantive application.

The guiding principles in consideration of an application for stay were laid down 12 firmly in the Supreme Court case of *Zubeda Mohamed &Anor vs. Laila Wallia&Anor, Civil Reference No.07 of 2016* where it was held:

"*The principles followed by our courts were clearly stated in the celebrated* 15 *case of Hwang Sung Industries Limited v Tajdin Hussein & Others, SC Civil Application No. 19of 2008 where Okello JSC, as he then was said:*

"*For an application for an interim stay, it suffices to show that a* 18 *substantive application is pending and that there is a serious threat of execution before the hearing of the substantive application. It is not necessary to pre-empt consideration of matters necessary in deciding* 21 *whether or not to grant the substantive application for stay."*


Further, in *Hon. Theodore Ssekikuubo and others v The Attorney General and others, SC Constitutional Application No. 04 of 2014* court observed thus**:**

3 "*Rule 2(2) of the Judicature Supreme Court Rules gives this Court very wide discretion to make such orders as may be necessary to achieve the ends of justice. One of the ends of justice is to preserve* 6 *the right of appeal. In the cases of Yakobo Senkungu and others vsCerencioMukasa, SC Civil Application No. 5 of 2013 and Guliano Gargiovs Calaudio Casadio, this Court stated that 'the granting of* 9 *interim orders is meant to help parties to preserve the status quo and then have the main issues between the parties determined by the full court as per the Rules"*

12 In *Patrick KaumbaWiltshire v Ismail Dabule [2018] UGSC 29 (27 March 2018),* the supreme court further guided that; *"Considerations for the grant of an interim order of stay of execution or interim injunction are whether there is a substantive*

15 *application pending and whether there is a serious threat of execution before hearing of the substantive application. Needless to say, there must be a Notice of Appeal. See Hwang Sung Industries Ltd vs. Tajdin Hussein and 2 Others (SCCA* 18 *NO. 19 of 2008*

*In summary, there are three conditions that an applicant must satisfy to justify the grant of an interim order:*

21 *A Competent Notice of Appeal;*

*A substantive application; and*

*A serious threat of execution."*


**5 |** P a g e

I am bound by the above principles in consideration of the application before me.

# *(a)A competent Notice of Appeal:*

- 3 It was submitted by learned counsel for the applicants that the applicant filed a notice of appeal to the Court of appeal and an application to validate the same. That both the application and the appeal has high likelihood of success. In response, learned - counsel for the 1st and 2nd 6 Respondents argued that the application was premature since no effort has been made to execute the decree of court in Civil Suit No. 14 of 2016. - It is evident from the record that the applicants lodged a notice of appeal on 8th 9 February 2024 where they indicated their intention to appeal against the orders of this Court in Civil Suit No. 14 of 2016. They also filed Misc. Application No. 25 of - 12 2024 for leave to appeal out of time or validation of the notice of appeal filed. Misc. Application No. 25 of 2024 is still pending hearing and determination.

Therefore whereas the notice of appeal was filed out of time, there is a pending 15 application for leave to appeal out of time or validation of the Notice of Appeal filed by the applicants. Prima-facie there is an expression of intention to appeal since I cannot delve into the merits of the application for leave in the current application. It 18 is therefore my finding that this requirement is satisfied.

# *(b)A substantive application:*

The applicant filed Misc. Application No. 27 of 26 of 2024 for stay of execution of 21 the decree of court in Civil Suit No. 14 of 2016 which is also pending etermination by this Court. This is not disputed by the Respondents. Therefore this requirement has also been met.


#### (c) *A serious threat of execution:*

It was deponed by the applicants that after judgment was delivered, the applicants 3 have put the land on market for sale; that this poses an imminent threat of execution of the unjust orders in Civil Suit No. 14 of 2016. The 1st Respondent indicated that the suit land is for the 2 nd Respondent and he has never put it on market for sale. The 2 nd 6 Respondent also denied putting the land on market for sale or making any attempt to execute the orders in Civil Suit No. 14 of 2016. The Applicants in rejoinder insisted that the land was put on sale. Further that a bill of costs was taxed and it is pending being executed by the 1st and 2nd 9 Respondents thus posing a threat which is imminent.

To begin with, the phrase *'imminent threat'* signifies that the threat is visible, 12 immediate and about to take place. The threat should be a visible one and not a speculative one or fanciful one. The applicant must therefore lead evidence to demonstrate that the threat is about to take place and in the event an interim stay or 15 injunction is not granted, the same is likely to take place at the detriment of the party applying.

In this case the applicant's main reason for seeking the order in issue is that the 1st and 2nd 18 Respondents have put the land on sale which causes an imminent threat of execution. The applicant did not attach or furnish any evidence about their allegations that the 1st and 2nd Respondents desired to sale the land in dispute. No

- 21 evidence was placed on record either inform of an affidavit by those who intended to buy the land in issue or who inspected the same. The applicants also alluded to a taxed bill in the affidavit in rejoinder as one of the reasons for seeking the order in - 24 issue. This in my view come as an afterthought since it was not pleaded in the


affidavit in support of the application. Be that as it may, the mere fact that a bill was taxed does not pose an imminent threat of execution especially where the decree 3 holder has not made an application to execute the same.

I am alive to the fact that filing a bill and having the same taxed is a step towards execution. However, it does not in itself pose an imminent threat of execution 6 warranting grant of an interim order of stay. I am thus not convinced on the basis of the evidence placed before me by the applicants that there is an imminent threat of execution warranting an interim order of stay of execution. This application 9 therefore fails and it is dismissed with costs in the cause.

I so order.

12 Vincent Wagona

# **High Court Judge / Fortportal**

**DATE: 03/05/2024**