Tekereza & 2 Others v Kyaligonza & 2 Others (Civil Application 1114 of 2023) [2024] UGCA 153 (27 June 2024)

# THE REPUBLIC OF UGANDA

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

### CIVIL APPLICATION NO. LLL4 OF 20.23

(Aising from Masindi HCMA No. 24 of 2023 and Court of Appeal Ciuil Appeal No. 195 of2023)

#### . TEKEREZA HELLEN BARYAYANGA 1

- . BETTY RWAKAIJA 2 - . BIKURU ROBERT (Admlnlstrators of the Late Btrtg enda KalJa BenJamln) 3 ::::::::: APPLICANTS

#### \rERSUS

- 1. KYALIGONZA SYLVIA - 2. BABYESIZA CONELIOUS - 3. KYALIMPA GODFREY (Admlntstrators of the lote T'lbemanga Johnson) :::: : : : :::::::::: : :: RESPONDENTS

# BEFORE: HON. JUSTICE OSCAR JOHN KIHII(A, JA

(Sitting as a single Judge)

#### RULING OF COURT

The Applicant hled this application by Notice of Motion under Rules 2(2), 6(21 (bl, 42 and a3( <sup>1</sup>) and aa ( I ) of the Judicature Court of Appeal

- 25 Rules seeking for orders that; - 1. That the Order of Stay of Execution of the Ruling and Orders in Miscellaneous Application No. O24 of 2023 delivered by His Lordship Hon. Justice Isa Serunkuma, Resident Judge of the

High Court of Uganda, at Masindi on 13th day of October 2O23, be granted pending the hearing of the appeal.

2. Costs of this civil application be granted to the applicants

### Background

- 5 The Appticants were the plaintiffs in High Court Civil Suit No. 015 of 2019 which was instituted against the Respondents and the High Court delivered judgment in favor of the Applicants. The Respondents filed an appeal against the judgment and decree of the High Court and frled an application for stay of execution in the High Court at Masindi heard by Justice Isa Serunkuma. The application for stay - was granted with certain orders varying the status quo of the suit property. The Respondents then filed an application for contempt of court and the Judge gave a ruling with orders contrary to the judgment from which the application arose. The Applicants appealed 10 - against that order to this court and a-lso filed this application for stay of execution. 15

The Applicants filed an a-fhdavit in support of the application deponed by TEKEREZA HELLEN BARYAYANGA sworn on the 23'd of October 2023 and the grounds upon which the application is premised are stated therein. Briefly, the grounds are;

- 1. The l",Applicant was the 1st plaintiff in Civil Suit No. 015 of 2019 brought against the Respondents as defendants and the sarne was decided in the Applicant's favor. - 2. Tlrre Respondents filed an appeal in this court vide Civil Appeal No. 195 of 2023 pending before this court.

- 3. An application was hled vide Misc. Application No. O24 of 2023 for stay of execution before another Judge and the orders made therein altered the hndings of court in Civil Suit No. 15 of 20 19. - 4. On 18th October 2023, the Deputy Registrar of the High Court at Masindi signed a warrant of arrest against the Applicant in execution of the said orders in Misc. Application No. 024 of 2023. - 5. The Applicants are the legal owners of the suit property and are in physical possession of the land but the orders of Justice Isa Serunkuuma in the application for stay of execution dispossessed the Applicants of the land. - 6. The Applicants hled a Notice of Appeal in this court and a letter requesting for proceedings. - 7. The Applicant's appeal has a likelihood of success considering that the ruling in Misc. Application No. O24 of 2023 altered the orders of court in Civil Suit No. 015 of 2Ol9 in which the Applicants were the successful party. - 8. The Applicants will suffer irreparable loss as they are being threatened by execution with warrants of arrest of the Applicants.

The Respondents frled an affidavit in reply deponed by KYALIGONZA SYLVIA sworn on the 20ti' November 2023 opposing the application on the grounds that;

- 1. The Applicants defied the orders of the lower court in HCMA No. - 166 of 2022 and were held in contempt in HCMA No. 24 of 2023.

- 2. T}re Applicants filed HCMA No. 60 of 2023 for leave to appeal, HCMA No. 60 of 2023 for stay of execution and an interim application for stay of execution and the sarne are pending hearing. - 3. The Applicants now hled this application in this court and the same is frivolous, vexatious and untenable in law. - 4. The Applicants defied the orders of the High Court and the High Court found them in contempt of court and directed them to vacate the land immediately. - 5. The High Court did not overturn the decision of the HIIGH Court in HCCS No. 14 of 2013 but ordered a stay of execution of the orders therein. 10 - 6. The Applicants do not merit the order of stay of execution and justice requires that they serve the prison sentence of the High Court.

## Representation

At the hearing of this application, Mr. Martin Asingwire appeared for the Applicants, while Mr. Simon Kasangaki appeared for the respondent. Both parties filed written submissions which were adopted as their legal arguments with leave of court.

# Consideration of the application

I have carefully considered the a-ffidavits, the submissions of both parties and the authorities provided by both counsel for which I am grateful.

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

6. Suspenslon of sentence and stag of execrtlon.

(2) SubJectto subnrle (1) of thts tttle, the lnstlhttlon of an appeal shall not operate to suspend ang sentence or to stag executlon, but the court mag-

(a)...

(b) tn qng cirtll proceedlngs, uhere o notlce of appeal hos been todged ln accordance ulth rule 76 of these Rules, ord.er a stag

oJ execrtlon, an lnJunctlon, or a stag of proceedlngs on such tertns as the cout't mag thtnkJust. 10

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;

"(7) The appllcatlon must estobltsh that hls appeal has <sup>a</sup> Itkelthood of success; or a prlma facle cose of hts rtght to appeal

(2) It must also be establlshed that the Appllcant wlll suffer lrreparoble damage or tho;t the appeal wtll be rendered nugatory tf o stag is not granted. 20

(3) If 7 and 2 abotre ho,s not been establlshed, Court must conslder ultere the balonce of conaenlence lles.

# (4) That thc Appltcant must also establtsh that the appllcatlon utc,s lnstltttted ulthout delog.'

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

The salient background facts upon which the application is premised are checkered involving many applications and orders made by the High Court before different Judges. I deem it useful to point out most of them as deduced from the affidavits from and against the applications to facilitate the hnal decision in this matter.

The Applicants were the plaintiffs in High Court Civil Suit No. 015 of 2019 which was instituted against the Respondents and the High

- Court before Justice Jesse Byaruhanga, delivered judgment in favor of the Applicants. The judgment is attached to the Applicant's affidavit in support and marked arrnexure J'. The learned trial Judge found for the Applicants and declared that the land comprised in Block 1O Plot 32 Bujenje forms part of the estate of the late Birigenda 15 - Kaija Benjamin for which the Applicants are administrators. The trial Judge also granted a permanent injunction against the Respondents, an order of cancellation of the Respondents title and an eviction order and the decision was delivered on 2'd November 2022. 20

The Respondents filed an application for stay of execution of the High Court orders vide Misc. Application No. 166 of 2022 and a conditional order was granted on 14th March 2023, three months a-fter the decision of the trial Judge. The trial Judge granted the order on condition that the Respondents deposit 25o/o of the decreta-l sum which was UGX 420,000,000/=. Despite the fact that the order staying execution was granted on 14th March 2023, there is no evidence from the Respondents affidavit indicating at what point the said condition was met.

The Respondents Iiled an application for contempt of court and the same was granted on 13th October 2023 ordering that the Applicants be arrested and the Applicants vacate all parts of the suit land previously owned by the Respondents at the time of determination of the application for stay of execution, which was 14th March 2023. Tt:e Applicants filed an appeal in this court against the said order and a-lso filed two applications in the High Court. One for stay pf execution and another for leave to appeal and both were still pending at the High Court at the time this application was heard. A warrant of arrest was issued against the Applicants and they filed this application for stay of execution now before me. 10 15 20

The Respondents argued that the Applicants filed a similar application in the High Court for stay of execution vide Misc. Apptication No. 62 of 2023 and the same is still pending hearing and as such, this application is an abuse of court process. The Applicants argued in this respect that they filed an application for stay of

Page 7 of L4 execution in the High Court in accordance with the decision of Lawrence Musiitwa Kyazze Vs Eunice Busingye S. C. C. A No. 18 of **1990.** However, to date, the said application has not been fixed for hearing.

This court has previously held in the case of **P. K Sengendo Vs** $\mathsf{S}$ Busulwa & Male Abdul [2014] 1 HCB 107 as follows;

"An application for stay of execution pending appeal to this court must first be filed in the High Court. It is only when the High Court refuses to grant the stay or where it doubts its jurisdiction or where the disposal of such an application in the High Court would entitle substantial delay that an application would be brought first in this court."

From the above excerpt, it is clear that where there is substantial delay in hearing and/or disposing such an application, the applicant 15 may file the application to this court. I reiterate that this court and the High Court have concurrent jurisdiction in hearing such an application for stay of execution. See Civil Application No. 341 of 2013 Kyambogo University vs. Prof. Isaiah Omolo Ndiege

The Applicants' application for stay of execution was filed in the High 20 Court on 20<sup>th</sup> October 2023 and to date has not been fixed for hearing. As such, I find that the Applicants' instant application is rightly before this court.

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## 1. Prima facie case

5 Regarding the issue of likelihood of success, the Applicants state in the a-ffidavit in support of the application deponed by Tekereza Hellen Bar5rayanga paragraph 9, that the appeal has a likelihood of success and stated that the orders granted by the Judge in Miscellaneous Application No. OO24 of 2023 were an alteration of the findings of the trial Judge in H. C. C. S No. 15 of 2019. From my perusal of the evidence on record, it appears to me that the Applicants, who were the successful party in Civil Suit No. 15 of 2019 had proceeded with partial execution before the stay was granted at the High Court. A conditional order of stay of execution was granted on 14th Match 2023 and the Judge stated that the order would suffice on condition that the Applicants deposit 25o/o of the decretal sum of UGX 420,000,000/=. This order was given 5 months after the decision of the tria-l Judge had been made granting the Applicants vacant possession of the suit land. 10 15

The issue of whether execution had proceeded at the time the order for stay of execution took effect is one for determination in the Applicant's appeal pending before this court. This is what will determine whether the Applicants were rightly held to be in contempt of court in Misc. Application No. 24 of 2023. In addition, the order granted by the trial Judge in Misc. Application No. 24 of 2023 ordered the Respondents (Applicants in the instant application) to vacate all parts of the suit land initially belonging to the Applicants (now Respondents) at the time of determining M. A No. 167 of 2022. 20 25

The Applicants' argue that this order altered the orders of the tria-l Court in Civil Suit No. 015 of 2019, which determined the ownership of the suit land. On their part, the Respondents state in paragraph 9 of the affrdavit in reply that the order in Misc. Application No. 24 of 2023 did not alter the orders of court in H. C. C. S No. O15 of 2019. This question is one that ought to be placed before this court on appeal for determination.

The decision in Stanley Kang'ethe KinyanJui v Tony Ketter & 5 Others [2013] e KLR guided that; "An arguable appeal is not one which must necessailg succeed, but one which ought to be argued fully before the court; one which is not friuolous. " This authority is of high persuasive value and I agree with the holding therein. I therefore find that the Applicants have raised arguable points of law and fact which ought to be argued on appeal. 10

## 2. Irreparable damage 15

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

To prove this element, the Applicants have to show that the damage bound to be suffered is such that it cannot be undone or compensated for in damages. In Giella v. Casgman 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 20

Page 10 of 14

or a materia-l one, that is; one that cannot be adequately atoned for in damages.

In the instant case, the 3.d Applicant stated in paragraphs 8 to 12 of the affidavit in rejoinder that they will suffer irreparable damage since the Respondents have applied for renewal of the warrants of arrest earlier issued by the Registrar High Court, Masindi. He stated that he had earlier been arrested by the court bailiff at the court premises and taken to Wandegeya police station and will suffer irreparable damage if the orders of court in Miscellaneous Application No. 24 of 2023 are effected before determination of the Applicants' appeal qgainst the said orders. The Applicants also contend that they will suffer irreparable damage if they are evicted from the 22 acres that they occupied at the time the decision in Miscellaneous Application No. 24 of 2023 was determined.

I therefore find that the Applicants have satisfied this court that they will suffer irreparable damage if this application is not granted. 15

## 3. Balance of Convenience

The concept of balance of convenience was expounded in Jayndrakumar Devechand Devani Vs. Haridas Vallabhdas Bhadresa & Anor, Civil Appeal No. 21 of L97L where the Court of East Africa observed inter alia that: 20

cWlere ang doubt exlsts as to the plolntlffs tlght, or lf his t'lght ls not dlsputed, but lts ttlolotlon ls denled, thc Court, ln

detennlnlng uthether an lnterlocutory lnJunctlon should be granted., takes lnto conslderatlon the bo,lo'nce of corutenlence to the partles and the nature of the tnJury whtch the defendant, on the one hand, utould suffer tf the tnJunctlon was grdnted and he should ultlmatelg turn out to be rlght, and that whtch thc plalnttff on tle other hand, mlght sustcln tf the tnJunctlon utas refused and he should ulttmatelg dtnt out to be rtght. The burden of proof that the lnconuenlence whlch the platnttff wlll suffer bg the refusal oJ the lnJunctlon ls greater than that uthlch the defendant wlll suffer, tf tt ts granted, lles on thc ptotnttff."

Balance of convenience lies more on the one who will suffer more if the respondent is not restrained in the activities complained of in the suit. Therefore, in arriving at the proper decision whether the ba-lance of convenience favors the applicant or not, court must weigh the loss or risk at exposure for the applicant in the event the order is denied and the damage which could be suffered if it is not gra-nted. In my view, court should equally examine the prejudice and the injury both parties are likeiy to suffer if the stay is granted or denied.

In this case the Applicants have stated in their a-ffidavits that the Respondents have already obtained wa-rrants of arrest against them and that there is a pending application before the Registrar High Court Masindi for renewal of the warrant of arrest that recently expired. 20

The Applicants thus prayed that the stay of execution be granted until the determination of the appeal pending before this court. It is my considered view that the ba-lance of convenience favors the Applicants who have a threat of arrest and detention to civil prison

5 and eviction from the suit land if this application is not granted. Considering the checkered history of this application and the fact that the status quo on the suit land has had a back and forth, I deem it necessary to make an order preserving the status quo as at the time of hearing Miscellaneous Application No. O24 of 2023.

- I therefore find that the Applicants have made out a case for issuance of an order of stay of execution and I hereby allow this application with the following orders; 10 - 1. The Order of Stay of Execution of the Ruling and Orders in Miscellaneous Application No. O24 of 2023 delivered by His Lordship Hon. Justice Isa Serunkuma, Resident Judge of the High Court of Uganda, at Masindi on 13th day of October 2023 is hereby stayed pending the hearing of the appeal. - 2. Status quo be maintained as at the time of ruling in Miscellaneous Application No. 24 of 2023. - 3. Costs shall abide the outcome of the appeal. 20

I so order

th Juline 2024 Dated this .......

$\mathsf{S}$ . . . . . . . . . . . **OSCAR JOHN KIHIKA** JUSTICE OF APPEAL

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