Roko Construction Limited v Pramukh Steel Limited (Civil Application No. 275 of 2025) [2025] UGCA 224 (17 July 2025)

Full Case Text

#### THE REPUBLIC OF UGANDA

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

#### CIVIL APPLICATION NO.0275 OF 2025

#### ARISING FROM COA-00-CV-CA-1123-2024

### ARISING FROM COMMERCIAL COURT CIVIL SUIT NO.990 OF 2020

ROKO CONSTRUCTION LIMITED:::::::::::::::::::::::::::::::::::: $10$

#### **VERSUS**

PRAMUKH STEEL LIMITED::::::::::::::::::::::::::::::::::::

#### BEFORE: HON. JUSTICE MUSA SSEKAANA, JA

*(Sitting as a Single Justice)*

#### **RULING**

This application was brought by way of Notice Motion under rules 2(2), 6(2)(b),42(2), 44(1), 53 of the Judicature (Court of Appeal Rules) Directions S. I 13-10, Section 33 and 38 of the Judicature Act, Cap 16 seeking the following Orders that;

- 1. The Honourable Court grants stay of execution of the orders arising from 20 judgment in CS No. 990 OF 2020 pending the hearing and determination of appeal filed in this court. - **2.** Costs be provided for by the Respondent. - The grounds in support of the application are briefly set out in the Notice of Motion 25 and the affidavit in support sworn by MARK KOEHLER, briefly stating that; - 1. The respondent filed the HCCS No. 990 OF 2020 for recovery of USD.399, 156.050, plus interest & costs. - 2. The same suit was determined on a point of law wherein by the ruling dated 30 the 3rd day of October, 2024, Hon. Lady Justice Cornelia Kakooza Sabiiti

$\mathsf{S}$

ordered that the Applicant pays USD. 399,156.050, plus interest at 10% & costs.

3. Being aggrieved by the said decision, the applicant lodged Notice of Appeal & letter requesting for certified record of proceedings & consequently filed COA-00-CV-CA- 1,L23-2024 in the Court of Appeal pending the record of proceedings.

4. The respondent filed for execution vide EMA NO.0017 of 2025 for attachment and sale of movable & immovable property of the applicant which is pending hearing in the High Court.

5. The applicant applied for stay of execution in the High court vide MA NO.74 of 2024 but it was dismissed with costs and the respondent has resorted for execution since the said execution was pending the determination of MA No.74 of 2024.

6. The appeal has high chances of success and the applicant shall suffer irreparable damage if the execution is not stayed.

25 7. That if the order for stay of execution is not granted, the appeal shall be rendered nugatory.

> 8. lt is just, equitable and the interests of substantive and natural justice that the a pplication be granted.

9. By the time the application was filed, the execution was at the stage of Notice to show cause why execution should not issue.

L0. However, to my utter shock on the 17th day of June, 2025,1 got to learn that the respondent had through its bailiffs advertised in the Daily Monitor, the applicant's property under warrant of attachment and sale.

11. Therefore, the said property is in eminent danger of being disposed of as the respondent is attempting to take possession and the buyers have started lingering around, thus need to the order of stay of execution.

- 5 The respondent on the other hand filed an affidavit in reply to the application briefly stating; - 1. THAT the instant application is based on frivolous and vexatious grounds and brought in bad faith and is an abuse of Court process. - 2. THAT the applicant has always frustrated the progress of Civil Suit No. 990 of 2O2O by refusing to comply with the directions of the court regarding the filing of trial bundle, joint scheduling memorandum and other trial documents. 10 - 3. THAT during the scheduling and commencement of hearing, it became apparent that the applicant did not contest receiving goods from the respondent but simply required a reconciliation of how much was outstanding. 15 - 20 4. THAT the court directed that the parties meet and reconcile the amount due to the respondent and in case they fail, the court appoints an auditor to reconcile the accounts. Whereas the applicant asked for the respondent to provide them with a copy of their local purchase orders, which were availed it refused to pay the sums due or to conduct a joint reconciliation. - 25 - 5. THAT during the trial of Civil Suit No. 990 of 2020, the Ccurt directed that the reconciliation of the accounts is conducted by an auditor duly appointed by the High Court Registrar. - 6. THAT despite being aware of the appointment, the applicant refused to pay the auditors fees prompting the respondent to apply to court for an order that it pays the auditor's costs to enable the process get concluded. 30 - 7. THAT whereas the applicant was directed by the court to refund the fees paid by the respondent to the auditor, it has to date neglected and/or refused to do so. - 8. THAT the applicant is playing stalling tactics like it did during the trial of civil suit No. 990 of 202O, where it deliberately failed to comply with directives of court and kept frustrating all attempts by the Court to hear the case.

- 5 9. THAT the intended appeal has no likelihood of success owing to the fact that it is based on frivolous and vexatious grounds and the same is intended to delay the whole execution process. - 10. THAT the applicant's grounds of appeal do not disclose any triable issues on appea I as follows; - a. Whereas the applicant claims that the auditor was appointed by the Respondent, the same was appointed by court. - b. The applicant does not dispute receiving the goods or amount due but only disputes procedures of the court. - c. The respondent instituted a suit against the applicant for the recovery of USD 399,156.050 (United States Dollars Three Hundred Ninety-Nine Thousand One Hundred Fifty-Six and Fifty Cents) which issue was ably dealt with by the trialjudge of the High Court. - 11. THAT the respondent denies the assertion that the applicant will suffer irreparable damage if this application is not granted. The applicant has not provided to this court sufficient evidence to demonstrate that the alleged loss is incapable of being quantified or compensated by way of damages. 20 - L2. THAT the applicant was granted a fair hearing during the trial of civil suit No. 99O of 2020, which was heard to its logical conclusion and therefore the applicant will not suffer irreparable damage. 25 - 13. THAT the applicant has not challenged the existence or validity of the decretal sum awarded by the trial Court. lnstead, the intended appeal purely raises issues of alleged procedural irregularities which, even if upheld, would not negate the applicant's liability to the respondent for the admitted supply of goods. 30 - 14. THAT during the correspondence exchanged on 11th June 2025, the applicant expressly acknowledged the outstanding decretal sum and proposed a payment plan, which further confirms that the appeal is not based on contesting the debt itself but merely on delaying tactics to frustrate execution. 35

15. THAT it is now settled law that a stay of execution cannot be granted merely to delay satisfaction of a lawfuljudgment especially where the applicant has not offered security for due performance and where the decree arises from a matter that has been heard and determined to finality. 5

## Representation

At the hearing, the opplicant wos represented by Counsel Nelson Ainebyono while Counsel Henry Nyegenyo represented the respondent. 10

# Both parties filed written submissions

The applicant's Counsel submitted that according to rule 6(2)(b) of the Judicature (Court of Appeal Rules) Directions Sl 13- 10, Subject to sub-rule (1), the institution

of an appeal sha ll not operate to suspend any sentence or stay of execution but the court may in any civil proceedings where a notice of appeal has been lodged in accordance with rule 76 of the Rules of this court order a stay of execution on such terms as the court may th ink fit. 15

# That according to the case of GASHUMBA MANIRAGUHA VERSUS SAM NKUDIYE SUPREME COURT CIVIL APPLICATION NO.24 of 2015 ot poge 8;

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

- a. The opplicotion must estoblish thot his oppeal hos a likelihood of success; or oprimo facie cose of his right to oppeol - b. lt must olso be estoblished thot the applicant will suffer irreparable domage or thot the oppeal will be rendered nugotory if o stay is not gronted. - c. lf 1 and 2 obove hos not been estoblished, Court must consider where the bolonce of convenience lies. - d. That the opplicant must olso estoblish thot the applicotion wos instituted without delay." - The applicant's counsel stated that in determining the existence of a prima facie case, it is not necessary to pre-empt considerations of matters for the full bench in determining the appeal. See Attorney Generol v Eddie Kwizera, Supreme Court Constitutionol Applicotion No.7 ol 2020 ot poge 22. 30

That the focus of court at this stage is the existence of an arguable appeal.

5 Counsel averred that in demonstrating existence of a prima facie case, it is important and sufficient for the applicant to point out the questions for determination or attach a draft memorandum of appeal. See Legol Broins Trust (LBT) V AG COACA No.56 ol 2023 dt page I

That the applicant has lodged the notice of appeal and letter requesting for 10 certified record of proceedings in both the High Court and Court of Appeal vide Court ofAppealCivil Appeal No.1123 of2024.

These are issues that are serious in nature that need proper determination of court of appeal and once the Applicant is given a chance to take part in hearing of the suit on merit, the appeal has likelihood of success.

Counsel for the applicant stated that according to the case of RO/733 Moj. Gen. Jomes Kazini v Attorney Generol Constitutional Applicotion No. 4 ol 2009; Kavuma, S (J. A) held that court has to issue an lnterim order to preserve the status quo where there are threats to violation of rights

Likewise according to the case of ALI MUWANGA KIBIRIGE V YAKO BANK UGANDA LIMITED & ANOR, CACA NO.750 OF 2024 at pdge 7, court stoted thus; 20

"ln my understanding, the Applicant has to show thot the damage bound to be suffered is such thot it connot be undone or compensoted for in damoges. ln Giella V Cassman Brown & Co EA 358, it was held thot by irreporoble injury, it does not meon that there must not be physicol possibility of repairing the injury, but it meons thot the injury or domoge must be substantial or moterial one that is; one thot connot be odequotely atoned for in domages". Also TROPICAL COMMODIIIES SUPPLIES LTD V INTERNATIONAL CREDIT BANK (IN LIQUIDATION) EA 331

That the High Court in the case of CHINA HENAN INTERNATIONAL COOPERATION GROUP CO. LTD V JUSTUS KYABAHWA, HCMA NO.875 OF 2022 at pdge 77, and court provided a persuasive caution about execution against project funds/ execution that might affect government contracts as causing irreparable harm. 30

Counsel for the applicant argued that in the instant application, the respondent has applied for attachment of movable & immovable assets of the applicant and does not specify which assets and therefore, the applicant believes, assets like machinery, monies for execution of government contracts & offices that are the main tools of trade, shall be attached and sold, without first giving it a fair hearing

5 which shall collapse its business in affecting its running contracts which among are those involving the government like the current one of Nationa I Pla nning Authority.

What is clear and undisputed, is that, if any immovable property belonging to the applicant like its offices is attached and sold, the damage would be irreversible since it would end its operations.

The applicant's counsel highlighted that in the instant case, if the applicant's immovable & movable property is sold in execution and the applicant turns out successful, the inconvenience would be unbearable to get retrieve from the third parties while since the respondent is interested in money, it would be easier to trace the assets of the applicant including cash and thus would not be inconvenienced in case it is successful in the appeal. 10 15

From the foregoing, the applicant has discharged the tests for the grant of stay of execution. Therefore, he prayed that this honourable court answers the above issue in the affirmative & grants the stay of execution pending hearing and determination of the appeal before court of appeal and the costs be awarded to the applicant.

ln response, the respondent's counsel referred to the case ol Porambot Breweries Ugonda Limited (ln receivership) v Standard Chartered Bonk Ugonda Limited & Another, UGCA362 Court of Appeal defined abuse of court process as; The term abuse of court process involves the use of process for an improper purpose or purpose for which the process was not established. A malicious abuse of legal process occurs when the party employs it for some unlawful object, not the

purpose which it is intended by the law to effect, in other words, a perversion of it.

Counsel for the respondent stated that throughout the conduct of the Suit, the applicant adopted a style of defiance and delay. Whereas the respondent complied with all orders to prepare the suit for hearing, the applicant kept giving flimsy reasons until the High Court ran out of patience prompting a warning. 30

The respondent's counsel noted that when the High Court ordered reconciliation inter-parties, the applicant frustrated the entire exercise for over two years. When the court appointed an auditor, the applicant refused to send through its ledgers and reconciliation documents until final stages. The applicant also refused to pay the court appointed auditor's fees prompting an order by this court that the respondent should pay and be reimbursed by the applicant. To date the applicant

5 has never reimbursed the respondent. Such has been the character ofthe applicant in the High Court.

That the applicant was prompted to file Misc. Application no.074 of 2025, for stay of execution (in the High Court) upon being served with a notice to show cause why execution should not issue. Upon the dismissal of its application for failure to fulfill the conditions that warrant the grant of an order for stay of execution, it filed this application.

From the reading of the application before this honorable Court and the draft ground in the applicant's affidavit in support of the application, the applicant neither disputes that the decretal sum is due nor does it dispute having taken steel p roducts from the respondent.

Counsel for the respondent argued that the applicant instead in his proposed grounds faults the judge for relying on a report from an auditor who in his view was appointed by the respondent. The above grounds are not only annoying and are wanting in bonafides. The applicant's advocate was in Court when the learned Judge decreed that in case the reconciliation failed; it should be conducted by an auditor appointed by the Court. Learned counsel for the applicant was indeed

- served with a copy of the letter appointing the auditor as well as the notification which are clearly on the record of the High Court. None of them states that the auditor was appointed by the respondent. - The respondent's counsel submitted that the conduct of the applicant throughout the trial of Civil Suit No. 990 of 2O2O and up to date is one of abuse of process of court. The applicant does not deny being indebted to the respondent or challenge the figure in the decretal sum but only wishes to stick to claw that the auditor was appointed by the respondent whereas not. 25 - Counsel for the respondent stated that according to Rule 6(2) of the Judicature (Court of Appeal) Rules, the institution of an appeal shall not operate to suspend any sentence or stay of execution. (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 fit. 30 35 - The respondent's counsel cited the Court of Appealin Kyomhogo University v Prof. lsoiah Omolo Ndiege, C. A Misc. Civil Application No. 347 ol 2073 noted that; the

5 law recognizes that not all orders or decrees appealed from have to be stayed pending appeal. lt also recognizes a fact that an appeal may be determined without the court having to grant a stay of execution. However, court may stay execution where the circumstances of the case justify such a stay. lt is incumbent upon the applicant in every application of stay of execution to satisfy court that grounds exist for grant of a stay of execution. The assumption that once a party has filed an 10

appeal a stay of execution must follow as a matter of course has no legal basis.

Counsel for the respondent submitted that the Supreme Court also clearly stated another ground to be considered for the consideration on whether to grant an order for stay of execution, which is; 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. See Lowrence Musiitwo Kyazze v Eunice Busingye, S. C Civil Application No. 78 ol 7990 15

That the Notice of appeal was served out of time and thus not valid to be relied upon in determining the ground that there is a substantive notice of appeal filed.

Counsel for the respondent contended that Rule 78(1) of the Judicature (Court of Appeal) Rules provides that an intended appellant shall, before or within seven (7) days after lodging a notice of appeal, serve copies of it on all persons directly affected by the appeal. The applicant in this instant matter filed their Notice of Appeal on the L5th dayofOctober,2024 and served the same on the respondent on the 6th day of January,2025, which was received in protest as it was served three (3) months beyond the mandatory statutory seven (7) days. 20 25

He invited this Honorable Court to a finding that there is no substantial notice of appeal, it was served contrary to Rule 78(1) and we pray that this Honorable Court be pleased to strike out the Notice of Appeal as the applicant omitted the essential

step of serving the respondent according to Ru le 78(1). We pray the same be struck out according to Rule 82 of the Judicature (Court of Appeal) Rules. See Mutegeki v Tibokunirwa & Another, UGCA776, Eruket v Okonye & Another, UGCA44, 30

The respondent's counsel submitted that an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from nor should execution of a decree be stayed by reason only of an appeal having been preferred from the decree. See Rule 6 (2) of the ludicature (Court of Appeal Rules) Directions.

el 5 That a prima facie case in the context of the exercise of discretion of any power to grant an interlocutory injunction leads to confusion as to the object of this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious. ln other words, that there is a serious question to be tried. See Olum Tremors, Olum Thomos & Bogonza Alex v Akongo Morotino & Oroch Som, UGCA 38 which cited Kiyimbo Koggwo v Haji Kotende Nasser, [1985] HCB 43.

Counsel stated that in the proposed grounds ofappeal, the applicant does notfault the learned judge for finding that the amount is due or even that goods of value in the decretal sum but only wishes to stick to claw that the auditor was appointed by the respondent whereas not. The applicant is merely clutching on a straw, by halfheartedly claiming that the judge erred in relying on a report of an auditor

appointed by the respondent and yet it knows that the auditor was appointed by the Court. 15

More so, the applicant in a letter dated 11th June, 2025, addressed to the respondent, it proposes a payment plan of the outstanding sum to the respondent. Therefore, this letter is an admission and confirmation by the applicant that it indeed obtained steel products from the applicant and it acknowledges outstanding sum, which is the decretalsum. 20

That the gist ofthe applicant's intended appeal according to the draft grounds of appeal in the affidavit in support of the application is that the trialjudge relied on the audit report while making her decision. However, it goes without saying that the Court directed the parties to have their accounts ready and have them reconciled by the court appointed auditor which was done despite the applicant's conduct of trying to frustrate the process. lt should be noted that the audit report settled the major issue of the applicant's indebtedness to the respondent and hence the ruling. 25 30

Counsel for the respondent noted that it goes without saying that the applicant's conduct during the trial of Civil Suit No. 990 of 2020, was unbecoming of a company of its stature since it was trying to frustrate the entire audit process by refusing to pay the court appointed auditor, refusing to file court documents in time, refusing to participate in the inter-party reconciliation. Consequently, this prompted the respondent to apply to court to allow it pay the auditor, M/s Patan Associates the sum of USD. 2,000 and then the applicant would refund the respondent's monies.

5 Therefore, the applicant's previous conduct makes its intended appeal frivolous and vexatious and a waste of the Court's time

He submitted that the applicant has not demonstrated any irreparable damage it will suffer in case the application before court is not granted.

Counsel for the respondent noted that the onus of demonstrating that irreparable damage shall be suffered if the stay of execution order is not granted lies fairly and squa rely on the applicant. 10

The respondent counsel cited the case of Kisuule Vs Greenlond Bank (in liquidotion), S. C. M. A No.7 ol 2070, the Supreme Court declined to order stay of execution on the ground that the Applicant merely regurgitated the provisions of the law that he will suffer substantial loss without clearly demonstrating the loss to be suffered.

That the applicant has not led any evidence of books or otherwise to indicate the loss they are to suffer.

More so, if there is any one to suffer loss, it is the respondent who supplied the applicant with quantities of steel products years ago for which the applicant has to date refused and/or neglected to pay for. The applicant took benefit of the respondent's goods and wishes to use and hoodwink the court into obtaining stay of execution as an avenue to continue evading its obligation to pay for the goods. 20

From the above thesis, it is clear that the applicant goes ahead to utilize the products while the respondent is kept out of its monies, this clearly shows that the respondent is the only one that is already suffering substantial loss. 25

That the court has to balance the interest of the applicant and that of the respondent who is seeking to enjoy the fruits of his or her judgement. ln this case what the respondent intends to execute is a monetary decree.

- Counsel for the respondent submitted that if what is sought to be executed is payment of a sum of money, generally courts will deny stay. Reason being that money can always be retu rned. But where the subject matter was property capable of permanent alienation and therefore capable of causing the appeal preferred to be nugatory, for example, transfer, the court will exercise its discretion in favor of 30 - the Applicant, so as to give benefit to the appeal to be attended to on its merits. 35

11 I

## 5 See P. K Sengendo v Busulwo Lawrence & Another, CACA20712074, Commissioner Customs Ugonda Revenue Authority v Koyumba, [2014] UGCA129.

He argued that in this instant case, it is a money decree and the applicant has not demonstrated that the respondent is impecunious and that in the event that the appeal succeeds, the respondent will not be able to refund the monies. Therefore, the satisfaction of a money decree does not constitute irreparable damage.

That the applicant's deponent in his affidavit in support of the application does not establish factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essentia I of the a pplicant as the successful party in the appeal. He only states that it will suffer irreparable damage.

- The respondent's counsel submitted that the intended execution is for a money decree and the satisfaction of a money decree does not ordinarily pose the danger of rendering an appeal nugatory. As a general rule on the ground for stay of execution, it is for the applicant to show that once the decretal is disposed instant case, the applicant has not demonstrated that in the event the appeal succeeds, 15 - the Respondent will not refund the sums paid to it. See Commissioner Customs Ugonda Revenue Authority v Kayumba, UGCA729. 20

Furthermore, the applicant in its letter to the respondent it acknowledges its indebtedness to the applicant and that is the reason as to why it proposes a payment pla n.

- The applicant further contends that the government's revenue will be tampered with since government is a shareholder, however, the applicant has not taken into account that its actions have negatively affected the business of the respondent and yet the respondent has to pay tax to the government that it claims it wants to shield. This is only an act of blowing hot and cold on the applicant's end which is a disadvantage to the respondent's business. 25 30 - The respondent submitted that the balance of convenience lies in favor of the respondent which has a judgement in its favor and it is already suffering the consequences of the applicant's actions.

He stated that the Supreme Court in the case of Lawrence Musiitwo v Busingye (supra) while laying down the conditions for the grant of an order of stay of 35

L2 I

5 execution, provided security for the due performance of the decree as one of the grou nd s.

That the applicant has not undertaken to furnish such security, yet the court has a duty in exercise its discretion to grant stay of execution of a money decree, to balance the equities between the parties and ensure that no undue hardship is caused to a decree holder due to stay of execution of such decree. For that reason,

the applicant has failed to prove this requirement too. 10

The respondent's counsel submitted that Rule 6(2) of the Judicature (Court of Appeal) Rules does not make stay of execution mandatory due to the institution of an appeal. The Applicant having failed to meet the conditions that warrant the

grant of an order for stay of execution, we pray that this Honorable Court be pleased to dismiss this application with costs. 15

## Consideration of Court / Analysis

The power of this Court to grant a stay of execution is set in

Rule 5(2) (b) of the Rules of this Court which provides that:

"2. Subject to sub-rule (L), the institution of on oppeol shall not operote to suspend ony sentence or stoy execution but the Court may.

b) in ony civil proceedings, where o notice of oppeol hos been lodged following rule 76 of these Rules, order a stoy of execution ......on such terms os the court may think just",

The general principle is that where an unsuccessful party is exercising their unrestricted right to appeal, it is the discretion of the Court to make such order for staying of proceedings in the judgement appealed from as well prevent the appeal from being rendered nugatory (See Swanya Ltd v Daima Bank Ltd Nairobi Court of

Appeol Civil Applicotion No. a5 of 2001). 30

The conditions under which an application for stay of execution can succeed which were well expounded in the case of Lowrence Musiitwa Kyazze Vs Eunice Busingye (supreme Court Civil Applicotion No. 78 of 19901 but more pronounced in the Supreme Court case of Hon Theodore Ssekikubo and Ors vs The Attorney General to include;

I. Thot the applicont must show thot he lodged a notice of appeal.

- 5 2. That substontiol loss moy result to the applicont unless the stoy of execution is gronted. - 3. That the opplication hos been made without unreosonoble deloy. - 4. That the applicont hos given security for due performonce of the decree or order os may ultimotely be binding upon him. - This court in Kyombogo University Prof. lsaioh Omolo Ndiege (Supro) expanded the list to include: 10 - L. Thot the Applicont has lodged a notice of oppeal in occordonce with Rule 76 of the Rules of this Court. - 2. Thot a substontive application for stoy of execution hos been filed in this court and is pending heoring. - 3. That the said substantive application and the appeol are not frivolous ond they have a likelihood of success. - 4. Thot there is a serious and imminent threot of execution of the decree or order and thot if the opplication is not gronted the moin applicotion ond the oppeol will be rendered nugotory. - 5. Thot the opplication was mode without unreosonoble deloy - 6. Theopplicontispreporedtogrontsecurityfordueperformonceofthedecree. - 7. That refusal to grant the stoy would inflict greater hardship thon it would ovoid. - ln this case an applicant seeking a stay of execution must meet the conditions as set in the above provision of the law. 25

ln the instant case, the respondent asserts that the applicant's intended appeal lacks a likelihood of success and is based on frivolous and vexatious grounds, serving primarily to delay the execution process.

The applicant's claim of errors by the trial judge primarily concern procedural irregularities, which even if proven, do not negate the applicant's fundamental liability for the goods supplied. 30

Critically, the applicant does not dispute receiving the goods or the outstanding amount due as determined by the trialjudge. The respondent initiated the suit for the recovery of USD 399,156.050, which the trialjudge upheld.

5 The applicant's letter dated 11th I June/2025, acknowledged the outstanding decretal sum and proposed a payment plan, which further confirms their indebtedness and undermines the assertion of a meritorious appeal.

The respondent's affidavit highlights that the audit report, which the trial judge relied upon, showed an outstanding amount and that the applicant's conduct during the trial, including attempts to frustrate the reconciliation process, was deliberate. The applicant failed to comply with court directives regarding accounting and payment of auditor fees. There is no rational basis to conclude that the appeal, which does not dispute the core indebtedness, has a likelihood of su ccess. 10

lrreparable damage is defined to mean damage that cannot be easily ascertained because there is no fixed pecuniary meosurement [See Black's Low Dictionory, gth Edition.l 15

The applicant's claims that the sale of its movable and immovable property like (machinery, monies for execution of government contracts & offices that are the main tools of trade) would lead to irreparable damage, as these are essential tools of trade and their disposal would collapse its business and affect current contracts.

However, the decree in question is for a money sum of USD 399,156.050 plus interest at 10% and costs. lt is well established that execution of a money decree does not ordinarily cause irreparable damage, as money can be refunded if the appeal succeeds. This perspective is rooted in the idea that the successful litigant should not be deprived of the fruits of litigation while an appeal is pending. This inherent right of the decree holder to enjoy the fruits of litigation was affirmed by the Supreme Court in Stanbic Bonk Ugondo Limited v Abatyo Agencies Limited (Supreme Court Civil Appeal No. 3 ol 2012)where it held that once a judgement is

given, the successful party is entitled to enjoy the fruits of the judgement. 30

The applicant has failed to provide sufficient evidence to demonstrate that the alleged loss is incapable of being quantified or compensated by way of damages. The onus to prove irreparable damage lies squarely with the applicant. The applicant has not provided books or any evidence to indicate a substantial loss.

5 The respondent correctly contends that the applicant has not demonstrated that it will suffer irreparable damage, and the court's previous ruling in Civil Suit No.990 of 2O2O reached a logical conclusion.

The balance of convenience heavily favors the respondent. The respondent has been kept out of its money for a significant period due to the applicant's failure to

pay for goods received. 10

Granting a stay would perpetuate the respondent's financial detriment and delay the satisfaction of a lawful judgment, especially when the applicant has not provided security for the due performance of the decree.

The respondent's submissions clearly demonstrate that this application is an abuse of the court process. The Court notes multiple instances of applicant's noncompliance during the trial of Civil Suit No. 990 ol 2020, including refusing to provide documents for reconciliation, declining to participate in inter-party reconciliation, and failing to pay auditor fees despite court directives. 15

Furthermore, the applicant's previous application for a stay of execution (Misc. Application no. 074 of 2025) was dismissed by the High Court. This current application appears to be another attempt to delay execution. 20

Most critically, the Notice of Appeal itself was lodged out of time on 1"5th /October/ 2024, received by the respondent on 6th /January /2025, which is three months beyond the statutory seven days period required by Rule 78(1) of the Judicature

(Court of Appeal) Rules. This questions the validity of the appeal, and therefore, the entire application for a stay of execution founded upon it lacks a valid basis. 25

The applicant has not undertaken to furnish any security for the due performance of the decree, nor has it expressed willingness to deposit such security (see Horuna Sentongo v I & M Bonk Ltd Civil Applicotion No 173 of 2023, [2023] UGCA 753 (19

May 2023). One of the requirements for grant of stay of execution is the need to deposit security for due performance. (See, Lowrence Musiitwo Kyazze v Eunice Busingye (Supro)) 30

This is a significant factor in cases involving money decrees, as it ensures that the decree holder is not unduly prejudiced by a stay of execution. An order of stay of execution may be oppressive to the respondent who is kept out use of its cash and

may have serious consequences to the respondent as a successful litigant in need $\mathsf{S}$ of this cash.

The applicant's appeal will not be rendered nugatory since this is a monetary decree which can be recovered upon determination of the appeal in its favour. It is not normal in monetary decrees for the appeal to be rendered nugatory, if payment

is made. The applicant has not given this court sufficient materials to enable it to 10 exercise its discretion in granting the order of stay.

The applicant does not contend that the respondent would not be able to refund the decretal sum upon the determination of the appeal in its favour. If the applicant does not depose that the respondent financial standing is so poor that if the

applicant were to succeed in the intended appeal, it would be rendered nugatory, 15 stay ought not to be granted even if the intended appeal is arguable. See The Official Receiver v Mugo Mukunya and Another Nairobi Civil Application No. 2001

The applicant has intimated in its missive to the respondent dated 11th June 2025 that they intend to continue business with the applicant and are only demanding or requesting for a payment plan. This is a good gesture from the applicant but it 20 should not be used to defer the execution process which is already in motion.

The particular circumstances in this case do not warrant an exercise of discretion to grant a stay of execution. The applicant should pay the decretal sum in order to avert the execution process otherwise the court would be causing extreme

hardship of reversing an execution or attachment which has already been done 25 with attendant expenses.

For all the foregoing reasons, the application fails and is hereby dismissed.

Costs shall be in the cause.

I so order

DATED at Kampala this.... $\cancel{1.7}$ ......day of ................................... 30 .......................................

dans.m

.......................................

MUSA SSEKAANA JUSTICE OF APPEAL