Tibamwenda and 2 Others v Kachurokabo (Miscellaneous Application 41 of 2024) [2024] UGHC 1036 (30 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **MISC. APPLICATION NO. 041 OF 2024 (ARISING FROM CIVIL APPEAL NO. 14 OF 2024) (ORIGINATING FROM LAND CIVIL SUIT NO. 026 OF 2017)** 6 **1. WILSON TIBAMWENDA 2. GWAMBA KASAIJA MOSES 3. MPWERWA WILLIAM ::::::::::::::::::::::::::::::::::::: APPLICANTS** 9 **VERSUS KACHUROKABO ZACHARIAH ::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA** 12 **RULING**

## **Introduction:**

- 15 This motion was commenced under section 98 of the Civil Procedure Act, sections 14, 33, 34, 38 and 39 of the Judicature Act and Order 22 rule 23 of the Civil Procedure Rules for Orders that: - 18 1. The execution of the decree in Civil Suit No. 026 of 2017 is stayed pending the determination of Civil Appeal No. 14 of 2024. - 2. That the costs of taking out the motion be provided for.

### 21 **Grounds of the Application:**

The application was supported by the affidavit of Mr. Gwamba Kasaija Moses, the 2 nd 24 applicant who deposed as follows:


- 1. The 2nd applicant on 8 th May 2024 received a decree in Civil Suit No. 26 of 2017 granting vacant possession of his land to the respondent and he was 3 informed by the Court Bailiff to vacate the said land with immediate effect. - 2. The 2nd applicant later instructed his lawyers, M/s Kisembo D. B & Co. Advocates to peruse the record and later filed an appeal and a letter seeking a 6 typed record of proceedings. Upon perusal of the file by the lawyer, it was discovered that the appeal has high chances of success since there are agreements where he acquired the suit land from the vendors who were still 9 alive. - 3. The respondent had since cordoned off a big portion of the land and has cut down his fence and the cocoa he had on the suit land. - 12 4. It is fair and just that the decree is set side and the resultant execution and to have the status quo maintained so that the appeal is heard on merits. - 5. The application was brought without inordinate delays and he is willing to 15 furnish security for due performance of the decree as may be determined appropriate in the circumstances. He will suffer irreparable damage in the event he was evicted from his land and his cocoa plantation destroyed or sold 18 to other people and it is just to grant the application.

#### **Reply of the Respondent:**

- 21 The application was opposed by Kachurokabo Zachariah, the respondent whose averments are as summarized herein: - 1. Judgment was delivered in the presence of the applicants on 28/2/2024 as such - 24 the decree did not come and surprise to Mr. Kasaija. Although the applicant


filed a notice of appeal and a letter asking for a typed record of proceedings, the respondent was never served with the same.

- 3 2. The respondent did not enter the land high handedly but was authorized to do so by the RDC, L. C.3 and LC.1 Chairpersons in a meeting attended by the applicants and he only occupied land decreed to him. - 6 3. The respondent is the one in possession of the suit land as such execution in that regard was complete and he has no intentions of disposing of the suit land and thus the applicant shall not suffer any prejudice. - 9 4. The execution by the respondent to recover his costs is ongoing and he had engaged an advocate to file a bill of costs. - 5. The security for due performance cannot be Ugx 40,000/= for which the 2nd 12 applicant allegedly bought the land but rather, it should be in respect of the respondent's untaxed bill of shs 14,450,000/=. - 6. The respondent was served with the Notice of Appeal and memorandum of 15 appeal as annexures to the motion and the said appeal has no chances of success. There are no pending patent points of law to be determined by the appellate court the same having been handled by the trial Magistrate and 18 execution had commenced where he was in possession and following up on his bill of costs. - 7. A stay of execution would cause the respondent more suffering as he will not 21 be able to access his costs and it is fair and just that the application is denied.

#### **Legal Representation and Hearing:**

*Mr. Kisembo David* appeared for the applicants while *Mr. Robert Luleti* 24 appeared for the respondent. Both counsel filed written submissions which have been considered.


**Issues:**

- 3 **1. Whether the applicants have demonstrated sufficient cause to warrant grant of an order of stay of execution of the decree in civil suit no. 026 of 2017.** - 6 **2. What remedies are available to the parties?**

#### **Consideration of Court:**

- 9 Stay of execution is a discretionary remedy which is granted as a temporary protection to a party who is appealing from being frustrated from prosecuting his or her appeal as a result of the frantic execution proceedings commenced by the - 12 successful party. The import of a stay of execution was explained by *Manyindo DCJ (as he then was) in Lawrence Musiitwa Kyazze Vs. Eunice Busingye, SCCA No. 18 of 1990 relying on the case of Erin Properties Ltd Vs. Cheshire County* - 15 *Council, (1974) 2 ALLER 448* thus; "…*where a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal if successful is not rendered nugatory"* - 18

In addition to the above, *Eva Luswata J (as she then was) in Walusimbi Mustafa vs. Musenze Lukia, Misc. Application No. 232 of 2018* added that that where a party 21 is exercising his or her unrestricted right of appeal, court bears the duty to make such orders to stay proceedings in the judgment appealed from to prevent the appeal from being rendered nugatory. Therefore, a stay plays the same role as a temporary 24 injunction that is to maintain the prevailing status quo at the time the decision appealed against was made till the determination of the appeal in the appellate courts. Being a discretionary remedy, a party who seeks a stay of execution must prove the


grounds under Order 43 Rule 4 (3) of the Civil Procedure Rules which have been expanded overtime by the superior courts. It is not a remedy that a party is entitled

- 3 to but one which is granted in exceptional circumstances upon the applicant leading evidence to warrant grant of the same. - 6 Order 43 Rule 4 (3) of the CPR which governs stay of execution provides that: *No order for stay of execution shall be made under sub-rule (1) or (2) of this rule unless the court making it is satisfied—* - 9 *(a) that substantial loss may result to the party applying for stay of execution unless the order is made;* - *(b) that the application has been made without unreasonable delay; and* - 12 *(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.* - 15 In Lawrence *Musiitwa Kyazze Vs Eunice Busingye, Civil Application No. 18 of 1990,* the Supreme Court observed that: "Parties asking for a stay" should satisfy the following: - 18 - *(1) That substantial loss may result to the applicant unless the order is made. (2) That the application has been made without unreasonable delay.* - 21 *(3) That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.*

24 The supreme court further observed in *Dr. Ahmed Muhammed Kisule Vs. Greenland Bank (in Liquidation), Supreme Court Civil Application No. 7 of 2010,* that there must be proof of lodgment of an appeal in the appellate court. In case of 27 the Supreme Court, the applicant should have lodged a notice of appeal in the Court


of Appeal. *In Kyambogo University Vs. Prof. Isiah OmoloNdiege, C. A. C. A No. 341 of 2013* Justice Kakuru observed that in application for stay the applicant must

- 3 prove the following grounds; *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 greater hardship than it would avoid.* - 6

The grounds for stay of execution were outlined in the case of *Hon. Theodore Ssekikubo & Others Vs. The Attorney General and Another, Constitutional* 9 *Application No.06 of 2013* as follows:

*"In order for the court to grant an application for stay of execution;*

*i) The applicant must establish that his appeal has a likelihood of success;* 12 *or a prima-facie case of his right to appeal;*

> *ii) It must also be established that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted;*

15 *iii) If 1 and 2 above has not been established, Court must consider where the balance of convenience lies"*

*iv) that the applicant must also establish that the application was instituted* 18 *without delay.*

#### **(a)Proof of Lodgment of an Appeal.**

Learned counsel for the applicants filed a notice of appeal on 11th March 2024 a copy of which is on record. They further filed a memorandum of appeal on 5 21 th May 2024. They also by letter requested for a typed record of proceedings copies of which were attached to the motion as annexure 'A', 'B', 'C' and 'D'. The above is sufficient

24 proof of lodgment of an appeal against the decision of the trial Court. I thus find


that the applicants proved that they lodged an appeal against the decision of the trial Court.

### 3 **(b)The appeal has a likelihood of success; or a prima-facie case of his right to appeal.**

Mr. Luleti for the Respondent countered the argument by learned counsel for the 6 applicant and contended that the appeal lodged has no chance of success. He cited the decision of *Formular Feed Ltd & 3 others v KCB Bank, HCMA No. 1647 of 2022* where court emphasized that the applicant must satisfy court that the intended 9 appeal must be realistic with high chances of success. That the appeal must be arguable and that the grounds of appeal framed for determination by the appellate court should be within the confines of the law and supported with good faith 12 arguments. Counsel submitted that the grounds of appeal formulated by the applicant offend Order 18 rule 2 of the Civil Procedure Rules. That Order 18 emphasizes that the grounds of appeal must be concise and precise without any argument and 15 shouldn't be narrative. He contended that the grounds of appeal formulated by the applicants to wit;

*" 1. That the learned trial Magistrate erred in law and fact when he failed* 18 *to properly evaluate the evidence on record thereby arriving at a wrong decision that the plaintiff is the rightful owner of the suit land*

*2. The learned trial Magistrate Grade One erred in law and fact when he ordered that the sale of the suit portion by either the 1st* 21 *defendant or the late Sungule was improper"*

24 That the above grounds of appeal do not meet the test under the rules and the guidance in *Sietco v Noble Builders (U) Ltd SCCA No. 31 of 1994* where court

 guided that the grounds of appeal should challenge the ration decidendi and must specify the points which were wrongly decided. He thus argued that the pending

- 3 appeal is incompetent and ought to be struck out as well as the current application for stay. - 6 This court is not at this stage deciding the appeal, but must only be satisfied that the appeal raises issues which merit consideration by the appellate court. The applicant seeks to challenge the decision of the trial court on the ground that the trial magistrate - 9 failed to properly evaluate the evidence on record thereby arriving at a wrong decision that the plaintiff is the rightful owner of the suit land; and when he ordered that the sale of the suit portion by the 1st defendant was improper. These are issues - 12 that affect ownership of the suit land which was a central issue in the trial and thus merit consideration by the appellate court. I therefore find that the intended appeal has a likelihood of success or establishes a prima-facie case of the applicant's right 15 to appeal.

#### **(c) That there is a serious threat of execution of the decree or order.**

Mr. Kisembo contended that there is serious threat of execution since the respondent 18 forcefully entered into possession of the suit land and there is a big threat of him destroying the developments of the 2nd applicant on the suit land to wit; cocoa. He also indicated that there is looming fear of the suit land being disposed of before the 21 conclusion of the pending appeal and thus the need to stay execution.

Mr. Luleti in response submitted that the stay is overtaken by events since the 24 respondent took possession of the suit land and if a status quo is to be maintained, the respondent shall remain in possession of the suit land. That the Respondent


merely filed a bill of costs which has not been taxed as such there is no threat of execution.

In the present application, the trial Magistrate decreed to the respondent only the land which was said to have graves of the plaintiff. The respondent however stated

- 6 in his affidavit in reply that he was assisted by the RDC and the local leaders to take possession of the same. Orders of court should be executed through a court process. This intended to avoid execution beyond what is decreed by court or in a different - 9 manner other than that ordered by Court. The responded thus acted irregularly in this regard as his actions were not supported by the due process of court most probably aimed at causing the applicant to suffer irreparable damage and render any intended - 12 appeal nugatory. Notably, the applicant avers that the respondent has since cordoned off a big portion of the land and has cut down the applicant's fence and the cocoa that he had on the suit land. - 15

Further, the respondent filed a bill of costs and the same was fixed for hearing on 29th April 2024. It is trite law that filing a bill of costs is step towards execution and 18 thus possess a threat of execution. Further on the record of the lower court, there is a notice to show cause why a warrant of arrest in execution should not be issued against the applicants which was filed by the respondent's Advocates. I thus believe 21 the respondent has taken efforts to have the decree of court in Land Civil Suit No. 026 of 2017 executed. I am satisfied that the applicants have proved that there is an imminent threat of execution.

# 24 **(d)That substantial loss may result to the applicant unless the order of stay is made.**


Mr. Kisembo submitted that the 2 nd applicant has cocoa on the suit land which is at a risk of being sold or harvested by the respondent at the loss of the 2nd applicant. 3 Further, that the respondent had been in possession of the suit land since 2003 and thus there is risk of the land being sold by the respondent which shall be at the detriment of the 2nd applicant. He thus submitted that the applicant shall suffer 6 substantial loss if a stay is declined. In response Mr. Luleti submitted that the respondent stated in the affidavit in reply that he had no plans of disposing of the suit land since it contains family graves which had been obliterated by the applicants.

9 In any case, any threat posed on the suit land especially the graves, is posed by the 2 nd applicant; no loss shall be suffered by the 2nd applicant.

- 12 The term 'substantial loss' does not represent any particular size, amount, volume or mathematical figure but connotes any loss great or small of real worth or value as distinguished from a loss that is merely nominal. (See *Tropical Commodities* - 15 *Supplies Ltd & others v International Credit Bank Ltd (in Liquidation) [2004] 2 E. A 331*. Therefore, substantial loss extends beyond the monetary loss that a party may suffer to include to the loss that a party shall be subjected to if he is deprived of - 18 his property (See: *Formular Feeds Ltd & 3 others v KCB Bank Ltd, HCMA No. 1647 of 2022*) or the emotional attachment that a party has to the property in issue which he or she is to be deprived off in the event a stay is not granted.

In this case the 2nd applicant stated that he has developments on the land to wit; cocoa which he had been harvesting from the time he bought the suit land in 2003. The 24 applicant contends that there is risk of the said cocoa being sold by the respondent who had forcefully entered the suit land. The applicant further asserts that there is risk of his land being disposed of by the respondent before the appeal is determined.


The respondent in his affidavit in reply admitted that he entered the suit land and says he did so with the assistance of the orders of the Resident District Commissioner

and the local authorities. The respondent did not contest the fact that the 2 nd 3 applicant had cocoa on the suit land. The applicant only asserts that since he is already in possession, he should be left on the land since there is risk of destroying the graves on the suit land by the 2nd 6 applicant.

I find that the 2nd applicant has proved that he will suffer loss in the event a stay is 9 not granted specifically to the cocoa that he already had on the suit land which is at risk of being sold by the respondent who forcefully entered onto the suit land contrary to the processes of court.

#### 12 **(e) Refusal to grant would inflict greater hardship than it would avoid.**

I have considered the pleadings and the submissions of the both counsel. The 2nd applicant averred that he had cocoa on the suit land which is at risk of being sold or 15 destroyed by the respondent who entered the land forcefully. The applicant further avers that there is also risk of the suit land being sold by the respondent before the conclusion of the appeal. It is not denied by the respondent that the applicant has 18 cocoa on the suit land. Whereas the applicant states that there are graves on the suit land, if indeed they are there, they have survived throughout the trial in the lower court in a case filed in 2017 when the applicant was in possession, and could not be destroyed by the 2nd 21 applicant at this stage. Since the respondent forcefully entered the suit land without following the due process of court, allowing him to stay would cause greater hardship than it would avoid since his presence threatens the 2nd

24 applicant's developments on the land which may be destroyed or lost and the land


disposed of before the conclusion of the appeal. I therefore find that refusal to grant the order would cause more hardship than it would avoid.

### 3 **(f) The application was brought without inordinate delay.**

The judgment of this court was delivered on 28th February 2024 and the applicants lodged an appeal immediately. The Respondent filed a bill of costs on 15th April 2024 and the application for stay was filed on 28 6 th May 2024. I find that the application was brought without inordinate delay and thus this ground was proved by the applicants.

### 9 **(g)Deposit of security for due performance of the decree:**

The applicant indicated in the affidavit in support of the specifically under paragraph 13 that he is willing to deposit security for costs as court shall deem appropriate in 12 the circumstances. Mr, Luleti in response argued that the application was presented to frustrate execution of the decree of court especially as regards recovery of costs. That should court be pleased to order a stay, the applicants should be ordered to pay

- 15 a sum of shs 14,450,000/= being the amount in the bill of costs filed by the respondent. - 18 Order 43 rule 4 (3) (c) of the Civil Procedure rules makes it a requirement that a party who is desirous of securing a stay must be willing to deposit in court security for due performance of the decree. - 21

# In **Shem Mpanga Mukasa & Anor Vs. KizzaClessyBarya, Misc. Application No. 479 of 2021** the Hon. Lady Justice Nkonge Rugadya stated thus: "*The payment of*

24 *security for costs is intended to operate as a shield against the filing of frivolous and vexatious appeals which may never succeed yet have an effect in escalating trial*


*costs."* In **Misc. Application No. 105 of 2020, Kisaalu Joseph & 10 others Vs. Nakintu May & Anor,** the Hon. Lady Justice Victoria Nakintu Nkwanga Katamba

- 3 added thus: *"The condition requiring an applicant to deposit security for due performance is established under Order 43 Rule 4 (3) (c). Security for due performance has been interpreted to mean the entire decretal sum and itis intended* - 6 *to protect the judgment creditor in the event that the appeal is unsuccessful".* The Learned Judge further stated that: "*Courts though have been reluctant to order security for due performance of the decree. Rather Courts have* - 9 *been keen to order security for Costs (see Tropical Commodities Supplies Ltd and others v. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331and DFCU Bank Ltd v. Dr. Ann Persis Nakate Lussejere, C. A Civil Appeal No.29 of 2003),* - 12 *because the requirement and insistence on a practice that mandates security for the entire decretal amount is likely to stifle appeals."* - 15 Security for costs or due performance of the decree operates as an insurance cover that is meant to indemnify the judgment debtor in the event the appeal fails, without recourse to vigorous processes of recovering such costs. In **Amon Bazira Vs.** - 18 **Maurice Pater Kagimu, Land Division Misc. Application No. 1138 of 2016**, the Hon. Justice Henry I. Kawesa stated as follows: *"It has been trite that due performance of the decree can only be secured by the provision of security for costs.* - 21 *This position was not altered in anyway by the Supreme Court decision of Lawrence Musiitwa Kyazze versus Eunice Busingye SCA No.18/1990".* - In the present suit the 2nd 24 applicant is willing to deposit security for costs. I find that this is a proper case to order security for costs. I direct that the 2nd applicant deposits a sum of shs 2,000,000/= as security for costs. I decline to award the sum of


14,450,000/= as suggested by Mr. Luleti since the bill has not yet been taxed and the said sum is on a high end given the value of the subject matter involved. The said 3 sum shall be deposited in this court within three months from the date of this ruling.

In the result, this application is granted with the following orders:

- 6 **1. An order is hereby issued setting aside the illegal execution conducted by the Resident District Commissioner (RDC) and the local leadership from by which the Respondent was put into possession of the suit land.** - 9 **2. An order of stay of execution of the decree of Court in Land Civil Suit No. 026 of 2017 is hereby issued.** - **3. The stay of execution herein is granted on condition that the 2nd applicant** 12 **deposits in court security for costs of shs 2,000,000/= within three (3) months from the date of delivery of this ruling.** - **4. In the event that the security for costs as orders herein is not paid, the** 15 **order staying execution shall automatically lapse.** - **5. The costs of this application are granted to the applicants in the cause.**

**It is so ordered.**

Vincent Wagona

**High Court Judge**

21 **FORTPORTAL**

**DATE: 30/10/2024**


18