[2000] UGCA 33

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

#### HON. G. M. OKELLO, JA. CORAM: HON. J. P. BERKO, JA. HON. A. TWINOMUJUNI, JA.

### **CIVIL APPLICATION NO. 3 OF 2000**

### **BETWEEN**

# CITY COUNCIL OF KAMPALA::::::::::::::::::::::::::::::::::

### **AND**

### DONOZIO MUSISI SEKYAYA::::::::::::::::::::::::::::::::::

### **RULING OF THE COURT**

This is an application under rules $5(2)(b)$ and $42(1)$ of the Court of Appeal Rules, Directions 1996 (Legal Notice No. 11 of 1996) for stay of execution of the decree in High Court Civil Suit No. 60 of 1993 until the determination of the pending appeal. The applicant also seeks costs of the application

The applicant had lost a legal battle against the respondent in High Court on 24/4/99 in High Court Civil Suit No. 60 of 1993. In that suit the respondent had sued the applicant for special and general damages for wrongful demolition of the premises in which the respondent was carrying on business, wrongful detention of the respondent's properties and unlawful arrest and detention of the respondent.

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The trial .judge au'arded to the respondent Shs 1.257.000 for special damages. Shs 4.000.000/: lor general damages rvith interest on the decretal allrount and costs of the suit.

Dissatisfled rvith that decision and orders of the court, the applicanr lodged notice of appeal on 3()i.li 1999 h prornptlv applied to High Court under Miscellaneous Application No 1042 of 1999 for stav of execution of the decree until the disposal of the intended appeal. The Court dismissed that application on lll2199 Hence thrs application which the applicant filed on 21212000

The erounds on u'hich the applrcation is based are -

I

- ( l) that the applicant has Ereat chances of success rn its intended appeal. - (2) that the applicant is likeh' to suffer irreparable loss and loss of public funds rf the stav is not granted.

The application is supported bv two affidavits of J. S. B Karugonlo, the Crl' ad'ocate one affida'it is dated 28/l/2000 and the other is dated 251512000 The respondent opposed the application and has filed an affidavit in repll dated 2415/2000

Al lhe hearing. the argumenl centered onlt, on the ground that the applicant \*ill suffer rrreparable loss and loss of public funds if stav rvas not granted. Mr. Senrpa, learned counsel for the applicant, argued that the respondent is a person \*ithout means and that if the applicant were to par off 1he decretal arnounl. tlre rcspondent rrould not be able to relund

that money and therefore the applicant would suffer irreparable loss. He cited Development Ltd. and others Vs Uganda Polybags Ltd, Civil **application** No. 88 of 1999 where this court, in allowing application for stay, observed that "We think that the applicants who are two of the best known banks in this country can not fail to pay the respondents taxed costs if they lose the reference." According to counsel the ability of the party to pay the amount is a relevant consideration in application of the type.

Mr. Matovu, learned counsel for the respondent, submitted that the applicant did not show that it will suffer irreparable loss if stay was not granted. In his view, the respondent has means to refund the decretal amount if he lost the appeal.

Rule 5 $(2)$ (b) of the Rules of this court empowers this court to order a stay where a notice of appeal has been lodged in accordance with rule 75 of the Rules of this court. The instant application complied with this requirement. In *Lawrence Musiitwa Kyazze Vs Eunice Busingye, Civil* **Application No. 18 of 1990**, the Supreme Court set out matters to be considered to grant a stay. One of the conditions is that the applicant will suffer substantial loss unless stay is granted. In the instant case, the appellant relied on "irreparable" loss. In our understanding, that word means loss that cannot be adequately atoned for by payment of money.

The subject matter here is a judgment for a sum of money which can be satisfied by payment of money. Even the amount of the judgment debt cannot be said to be so substantial that its payment could cripple the applicant. On the other hand if the respondent is denied the benefit of the judgment debt, he will suffer as on the applicant's own showing, he is a man of very humble means.

We find no merit in the application. In the result, we dismiss it with costs in favour of the respondent.

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Dated at Kampala this 4 day of October, 2000.

ulluco. G. M. OKELLO

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## **JUSTICE OF APPEAL**

J. P. BERKO, **JUSTICE OF APPEAL**

A TWINOWUJUNI, JUSTICE OF APPEAL