[2025] UGCA 205

| 5 | THE REPUI<br>BLIC OF UGANDA | |----|------------------------------------------------------------------| | | IN THE COURT OF APF<br>)EAL OF UGANDA AT KAMPALA | | | CIVtL APPLICATION NO: 585 OF 2024 | | | (ctvtL APPLtcA'<br>llON NO: 259 OF 20231 | | | (ARTSTNG FROM MTSC. I<br>TPPLICATION NO: 285 OF 2021) | | l0 | (ARIStNG FROM COMMERC<br>IAL COURT MISC. CAUSE NO.44 OF<br>2O2Ol | | | ENT BANK: :: :: : ::APPL!CANT<br>CENTENARY RURAL DEVELOP | | | ERSUS | | | DORCAS NAN, ERO (Executrix<br>of Odongpiou | | | ls Stanislau Emmanuel)<br>:::::::::RESPONDENT |

## BEFORE: HON. USTICE MUS SSEKAANA A (Sitting as a Single ustice)

## RULING

- ²⁰ This application was brought by ay of Notice of Motion under Rules 2 (2), 6(2) (b) of the Court of Appeal ^R les, Section 12 of the Judicature Act, cap 16 and Section 98 of the CPA Ca 282 seeking the following orders; - 1. An order doth issue to sta execution in Misc. Cause No.44 of 2020 and Misc. Application No. 85 of 2021 pending the determination of ²⁵ the substantive Civil Applica ion No: 259 of 2024.

- 2. That the costs of this application abide the result of the appeal.

This application is supportecl by pn affidavit in support deposed by RUTH BIRUNGI -Senior legal officer-litlgation of the respondent, stating;

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- ⁵ 1. That Misc. Cause No.44 of sought consequential orders t which was erroneously registe 2020 Odongpiou Stanislaus Emmanuel c cancel the Bank's (Appellant) mortgage red on Kyadondo Block 184 Plot 43. - l0 2. That the Bank opposed the application on grounds inter alia that there had been no suit for recovery and that the matter required an ordinary suit. - 3. That in a ruling dated 26th Fcbruary 2021, the court allowed Misc. cause No.44 of 2O2O and awarded Odongpiou general damages of U9.shs.140,00,000/:. - 4. That the bank filed Misc. Application No.285 of 2O2L seeking review and setting aside of the findings and orders that the bank lodged ^a mortgage on Kyadondo Block 184 plot 43, and review and setting aside l0 of the award of general dama es and costs - 5. That the bank produced nc evidence that its mortgage deed was actually lodged on Busiro Block 184 plot 43 but the Land Office erroneously registered it on yadondo Block 184 plot 43 belonging to ²⁵ Odongpiou Stansislau Emman el. - 6. That in a ruling dated 26tr' Al)rt 2022, the court held that the bank did not take the necessary steps to obtain the mortgage deed and also failed to exercise due dilige ce when new matter or evidence was lo discovered. <^

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- 7. That the trial court awarded ^a excessive sum of U9.shs.140,000,000/= for a mistake by the Land making. Office and which was not of the bank's - l0 - 8. That the grievances raise serious questions of law and fact which merit adjudication by this Honorabl court. - l-s 9. That the dismissal 2022. bank filed a notice of its application f r of appeal and appealed against the review under Civil Appeal No.357 of - l0 10. The bank applied for stay Commercial Court and both Court. of execution and leave to appeal in the applications were dismissed by the High - 11. The bank has applied to Application No.259 of 2023 in this court for leave to appeal vide Civil order to validate the appeal. - 25 12. The Respondent's bill of U9.shs.18,220,000/: ancl a v issued for the bank's two vehir costs has been taxed and allowed at [arrant of attachment and sale has been cles and one vehicle has been attached.

30 13. That the decretal sum is Ug likely to distribute it to the impossible to recover if the a( .shs.158,220,000/= and the respondent is beneficiaries of the estate and it will be peal succeeds 9.''

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- ^l 14. The respondent has no means to refund the damages the event the appeal succeeds and the attachment of vehicles has caused substantidl inconvenience to the bank. and costs in the bank's - 15. That the applicant has file a substantive application for leave to t0 appeal and stay of execution which is yet to be fixed and heard by this court. d

The respondent on the othcr application stating; and filed an affidavit in reply to the

- ruling in the said mattcr w Application No.285 of 202I Cause No.44 of 2020 and with costs for want of merit 1. That Misc. Cause No.44 of 2020 was heard and determined on its merits and the applicant participated in the proceedings. That the ps delivered and the applicant filed Misc. for review of the decision of court in Misc. he application was heard and dismissed l5 - l0 - 2. That the appellant filed a notice of appeal on 27th lOl/2O22, at High Court Commercial Division without first obtaining leave to appeal from either High Court or Court of appeal. - 25 3. That the applicant also f ilcd a Memorandum of appeal in the court of appeal vide Civil Appeal No.357 of 2022 without first seeking leave to appeal and the applicant h{s erroneously filed Application No.259 of 2023 to validate the app{al and this was done without justified reason or suff icient catrsc 9.4n

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- ⁱ 4. That the land compriscrl in Kyadondo Block 184 Plot 43 at Nsasa Wakiso district has always been registered in the names of the late Odongpio Stanislaus Emma uel and the deceased at the time of his death had possession of e said title as well as custody of the Certificate of title for the sai land. - l0

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5. That the deceased durinq his life time never applied and or obtained a loan from the Responclent of U9.shs.10,000,000/= from the applicant and nor was hc ever its customer, borrower or surety and yet the applicant erroncously registered a mortgage on the said certif icate of title withot rt ^j stifiable reasons. That the applicant has not adduced any evidcrrr.e to prove that the said registration was done by the land officc orro eously.

- 6. That the said mortqaql has frustrated the respondent's effort as executrix to distributc tlrc cstate property in order to complete the subdivisions that had bccn commenced by the late Odongipou Stanislaus Emmanucl ;rrtd there are no new facts that were produced by thc allplic;trrt o warrant an application for review and application for leavc [o ;rp1r al. l0 - l5 - 7. That the applicant's allr'rlc@ appcal and Misc. application 1371 of 2022, were all frivolous ,rntl an abuse of court process because the appellant lodged thc s.ricl mortgage in 2007 and has up to date refused to vacate thc sarno despite formal complaints to do so. {,a

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- s 8. That there is no r:virlen c that the same mortgage was ever registered on land cornpris cl in Busiro Block 184 Plot 43 at Kaba bi as the applicant wants to rnake this court believe. - 9. That the applicant has not showed that the respondent will not be able to pay back the morey awarded in general damages and costs if the appeal succeeds, the applicant's submissions are simply speculative. - 10. That the application has been overtaken by events because one of the motor vehiclcs has already been impounded and advertised for sale

## Representation

At the hearing, the applicant was represented by Counsel Nelson Nerima 20 and Counsel Ronald Mugisa rcpre ented the respondent

## Both parties filed written submissions

Counsel for the applicanl. sLrbnritt;d that the application should be granted because the applicant has pnrvtlrl all thc requirements necessary for the grant of the said applicittiorr.

25 That the applicant filccl ;r rroticc of appcal on 27th April 2022 and the same is on court record ancl thc ;rppli appeal vide civil applic.rtion no:2 ant has applied to this court for leave to ⁹of 2023. Sr d

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s That the decretal sum is 158,220,000/= and a warrant of attachment has been issued for the bank's velricles and one vehicle has been seized.

The original judgement crcclitor rlied and the executor will distribute the decretal money arnong thc bc cficiaries of the estate and it will be impossible to get b.tck iI thc app I succccds.

I0 Counsel for the applicant subm tted that the application was instituted without delay.

The High court was rlclivcred application for leavc to appeal 16th June 2023. its ruling on 26th April 2022 and the an d stay was dismissed by High Court on

l5 The applicant promptly ;tpplicd for leavc to appeal and stay of execution on the 3'd of )uly 2023 viclc Civil App lication No.259 of 2023.

The appeal has a hiqh likelihood necessary steps anrl ;trlrlttr rtci nor, the applicant applietl for lt:itvc to 20 2023 vide Civil Applrcation No.259 of succcss because the applicant took the v cvidcncc which was unchallenged. That appeal and stay of execution on 3'd.,;uly I of 2023.

That the trial court ;tv;,rtriecl an exccssive sum of 140,000,000/= for ^a mistake by the larrcl otfrcc whfch was excessive. That the trial court wrongly applied a hirlh standard fLr review.

The said grievancos rlrr,t'scrior-r! qucstions of law and fact which merit 2s adjudication on appr',r1.

)ccausc there is no competent notice of Counsel for the respondent application should lrc tiisnrissccl n the other hand submitted that this

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7 | P a g ,' appeal and as such, this applicati n cannot be sustained and as such, there is no need to delvc into tht: rest of the grounds. ^t t

That the applicant in this application filecl a notice of appeal on 2710412022 way before he was rlr;rntcrl lcavc to appeal. The application for leave to appeal in the High Corrrt was rlifmissed. That even the Memorandum of l0 appeal was filed bcforc seckinq ldave to appeal.

Counsel for the rcsporrrlcnt ftrr lrcr strbmitted that the appeal has no serious grounds of ;rp1tc;rl ancl as sur.h, this application should not be granted. That thc applicatiLrn do not clisclose a prima facie case because of the following reason\;

- 1. The land compriscd in Kyad ndo Block 184 Plot 43 at Nsasa has at all l5 material time lrcorr ri,qisterbcl in the names of the late ODONGIPOU Stanislaus Emrrr,rnrrll. lle had physical possession of the said land and custody of lhc Ccrtificate of Title. That he had even commenced sub division proccss rrntil he was sabotaged by the applicant's action. - 20 - 2. That the dece;rsr:rl h;rs nevdr borrowed any money from the applicant bank and was rrr.ilher their ustomcr nor surety and yet the applicant registered a mortqaqc on h land. - 25 - 3. That the applir ,rrrt lr,rs not aclducccl any evidence to prove that the mortgage was crr onlously cgistered on the land by the lands office.

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- ln reioinder, counsol lor thQ applicant submitted that under Rule ⁷⁶ (4) of the Court ol' A1rpr,,rl Rulfs, whcn an appeal lies only with leave or ona certificate tlr;r[ ;r point of law of general public importance is involved, it shall not hc rrcces ary to obtain leave or a certificate before lodging the noticc of aplrr:;rl. - l0 That it was thercf()ri: l,rr,vful for thc applicant to file a notice of appeal before obtaining k'lrvc.

That regarding likr,irlr;rr,,iof succcss, counsel for the appellant submitted that there is no n,ri ii tri r jglvs into the rnerits of the appeal. lt suffices to show that the appcrl ir rrot fri law and fact. [olous and it raises arguable questions of

That security for f i lorrl ;rncc is not a mandatory requirement in the Court appeal. {rrtjr,i l.l rulc 4(3) of the Civil Procedure rules cited by the respondent ot '.' ,'pr ls to;11)l)eals to the High Court. rlrrc

## Consideratiorr , an yJ!s.

l0 The jurisdiction of tlris (-,rtrrt td grant a stay of execution is set out in Rule 6(2) (b) of thc Itulcs of t(is Court which provides that:

"2. Subject to suh rLtlo to suspend any s('rrl('n( (l), the institution of an appeal shall not operate ' or stdy oxecution hut the Court may:

b) in any civil proccr:dirrrrs, whcrc a notice of appeal has been lodged l5 following rule 76 ,,i llr, ,r, RulCs, ordcr a stay of execution\*... on such terms as thc CottrI ir, '. rink j rst

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this rule gives tl u., ( ,r i, thc rliscretion, in civil proceedings, where ^a notice of appeal lr,rs lr<:r'n lotlgcrl following rule 76 of the Rules of this Court, to order a ''l;rv o[ exe that it thinks fit. ution in appropriate cases and on terms

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The discretionary i)()'. 1(ri rrrust lrc excrcised judiciously and exercised in ^away that does r,,i irTC"r:nt a party frorn pursuing its appeal so that the same is not ren,li:r e tl irLrgat court's decision. ry shor-rlrl the appeal overturn the trial

ln Theodore S:., l:i'.t,,o & Otlrers v The Attorney General and Others, Constitr rrr,ii , ,plicaf iun No,6 of 2013, the Supreme Court laid down the principl,,s 1r, r ,irle tilr,Court in granting a stay of execution.

It held that;

- a) The applic;rnt nru,,L estlblish that his appeal has a likelihood of success; or ,r 1rr irr,r lacic r.rsc of his right to appeal - b) lt must alsr, lrl c:.lirblisllt:rl that hc will suffer irreparable damage or that thc , 1r1li',rr 'vill bJ r,,nclcrr,cl nugatory if an order for stay is not grantc(l - c) Court must ror:'irl r'whd,rc lhe balance of convenience lies. - d) The court I r,stabl slr thall the application was instituted without del,r'1. - 2-5 The major purpr, ril llrr) g[? the status quo ;r the full bench. It.tvo lltr: I o[ st;r'., of execution is to help preserve mr.rits of the case to be handled by S:r-'

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This Court has the task of establishing whether the Applicant has made $\mathsf{S}$ **out the conditions for the grant of stay of execution.**

I have considered the submissions of both counsel for the Applicant and the Respondent.

The applicant filed a notice of appeal in the High Court on the $27^{th}$ day of April 2022 and has applied to this Honorable court for leave to appeal vide Civil Application No.259 of 2023. The submission from counsel for the respondent that it was illegal for the applicant to file a notice of appeal before obtaining leave to appeal cannot stand because, under **Rule 76 (4)** of the Court of Appeal Rules, when an appeal lies only with leave or on a certificate that a point of law of general public importance is involved, it shall not be necessary to obtain leave or certificate before **lodging the notice of appeal.**

It was therefore proper for the applicant to file a notice of appeal before obtaining leave to appeal. The filing of a notice of appeal is a prerequisite in an application for stay of execution in the court of appeal. See Vishram Ravji Halai v Thornton & Turpin Nairobi Civil Application No. 15 of 1990 [1990] KLR 365

The applicant is also required to prove that the pending appeal has a high likelihood of success. For this ground to succeed, the applicant **must show** that the appeal is not frivolous and that it raises arguable questions of law. It is not necessary to delive into the merits of the appeal as counsel for the respondent has exhaustively done. It suffices

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$15$

$20$

$10$

$\mathbf{r}=\frac{\mathbf{r}}{2} - \mathbf{r}$

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to show simply that the appeal raises genuine triable issues that merit $\mathsf{S}$ **adjudication** by the court.

The applicant has demonstrated that it took all the necessary steps and exercised due diligence and adduced new evidence which was **unchallenged**. The applicant further alleges that the trial court awarded an excessive sum of Uq.shs. $140,000,000/$ to the respondent for a mistake that was solely made by the Lands Office. These are indeed arguable questions fact and the applicant succeeds on this ground.

**Regarding** the issue of irreparable damage, the respondent has already **commenced** the execution process and indeed one of the applicant's operational vehicles has already been impounded and advertised for sale. The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are **safequarded** and the appeal if successful, is not rendered nugatory. **See**

**Consolidated** Marine v Nampijja and Another Nairobi Civil 20 Application No. 93 of 1989(COA); Nsabimana v Jokana and Another CA Civil Application No. 222 of 2023

The respondent has not rebutted the applicant's averments on **irreparable** loss if execution proceeds. In fact, it is not in dispute that the original respondent is dedeased and the current one is simply an administrator of his estate whose sole duty is to distribute the estate to the named beneficiaries. If that is done, recovering the monies already

$\leq m$

$25$

$\mathbf{r} = \mathbf{R} \times \mathbf{R}$

$10$

$15$

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distributed to different beneficiaries will be hard in case the appeal $\mathsf{S}$ **succeeds** and the beneficiaries may not be able to refund.

The balance of convenience also lies in favor of the applicant because if the appeal succeeds, the applicant may not be able to recover the **decretal** sum and yet if the appeal fails, the respondent can easily recover the amount. It should be noted that one of the applicant's **vehicles** has already been impounded and advertised for sale and this **greatly inconveniences** the applicant's operation.

The respondent further argued that the applicant be ordered to deposit **security** for costs of the substantial amounts synonymous to the subject matter in dispute to safeguard the respondent's right to recover the $15$ **general** damages and costs. The practice of **imposing** security for due performance of the decree in some cases is only a rule of practice based on case law. See Joel Kato and Margaret Kato v Nuulu Nalwoga SC Civil Application No. 04 of 2012 UGSC 15 [2013]

There is no requirement for furnishing security in the court of appeal. $20$ The court can order for a stay of execution even without an order for the applicant to pay security for due performance of the decree and a stay of execution involves an exercise of judicial discretion which is unfettered. Each case should be decided on its facts depending on what is just in the particular circumstances. The applicant is a financial $25$ institution which has not had any issues of liquidity in its operations and it is not likely to fail to pay the decretal sum and taxed costs in case the **respondent** succeeds. $\leq m$

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$10$

$\frac{1}{\sqrt{2}} \propto \frac{1}{\sqrt{2}} \propto \frac{1}{\sqrt{2}}$

The court finds that the applicant has proved all the grounds needed for $\mathsf{S}$ **the grant of the current application.**

This court therefore issues an order for stay of execution in Miscellaneous Cause No.44 of 2020 and Miscellaneous Application No.285 of 2021 pending the final determination of Civil Application No:259 of 2024. The applicant's motor vehicle which has been attached and advertised for sale is also hereby released.

**Costs shall be in the cause.**

I so order $aaug-m$ $\ldots$ **MUSA SSEKAANA JUSTICE OF APPEAL**

Delivered in 12th June 2025


$15$

$10$