[2025] UGCA 227

# THE REPUBLIC OF UGANDA

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

### **CIVIL APPLICATION NO. 0372 OF 2024**

(Arising from Civil Appeal No. 1528 of 2023)

(Arising from Miscellaneous Application No.0074 of 2024; No.1515 of 2023; EMA No. 24 of $2023)$

(Arising Makindye Divorce Cause No.02 of 2018)

**BETWEEN**

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ERICK KIGGUNDU..................................

**VERSUS**

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TEDDY KYEYUNE KADDU...................................

## **RULING OF CHRISTOPHER GASHIRABAKE, JA**

### (SINGLE JUSTICE)

#### **Introduction** 20

[1] This application was brought under Rules $2(2)$ and $6(2)(b)$ of the Judicature (Court of Appeal) Rules SI 13-10(hereafter reffered to as "Rules of this Court"), Civil Procedure Rules 43 r 4 (2), (3), (5) (formerly SI 71-1) (now SI 282) and section 98 of the Civil Procedure Act Cap 282), for Orders that;

a. An Order for Stay of Execution of the Orders in High Court EMA No. 24 of 2023 be issued pending the hearing and disposal of the Appeal vide CACA No. 1527 of 2023.

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| 5 | b. Costs oJ this Application be in lhe cause. | |----|-------------------------------------------------------------------------| | | [2] The application is premised on the grounds as follows: | | | l) T'hcrt the lpplicanl hasfled an appeal before this honouroble | | | Court vide CACA No. 1527 of023. | | | 2) 1'hat the Divorce Cause No. 02 of 2018 proceeded ex parte, | | 10 | was determined in favour of the Respondent and afibcted lhe | | | rights of the Applicant, who was not a parly to lhe suil. | | | 3) T.hat the Applicant filed HCMA No. 0542 of 2023, an | | | applicationJbr Review ond setting aside the default Judgment, | | | which was dismissed. | | 15 | 1) There is a serious lhreat ofexecution vide IIMA No. 21 of2023. | | | 5) The tlpplicant filed IICMA No. 0074 of2024, an application | | | .for Objector proceedings, which were dismissed. | | | 6) l'hat the Applicant is in possession and use of the suit land | | | comprised in which is lhe subjecl of execution vide llMA No. | | 20 | 24 of2023. | | | 7) I'hal it is in the interesl ofjustice thet the execution be stayed | | | pending the hearing ofthe main appeal vide CACA No. 1527 | | | oJ 2023. | | | [3] The applicant filed a supplementary affldavit stating that the | | 25 | respondent had advertised the suit land comprised in Kyadondo Block | | | 246 Plot 1635 land at Kyetabye for sale. He averred that if this | | | application is not granted, execution will happen, negating the pending | | | appeal and applications. | | | [4] The application was opposed by an affidavit swom by Ms. Teddy | | 30 | Kyeyune Kaddu on grounds that the Application was an abuse of Court | | | process, incompetent, and not tenable at law for being res judicata. Ms. | | | Teddy Kyeyune Kaddu averred that she would raise a preliminary point | | | |

of law to this effect.

⁵ [5]In rejoinder, the Applicant reiterated the averments in the affidavit in support of the motion and supplementary affidavit. He additionally averred that if the application is not granted, he will suffer irreparable damages that could not be compensated in damages. That the Divorce Cause No.02 of 2018 was delivered in total miscarriage ofjustice and CACA No. 1527 of 2023 seeks to cure. IIe averred that it is in the interest of justice that this application be allowed so that the main appeal is not rendered a nullity.

### Representation

[6] At the hearing of the application, Ms. Judith Tumusiime represented the Applicant. Mr. Blasto Byabakama represented the respondent. Neither party was present in Court. The parties filed written submissions.

# Submissions for the Anplicants

- [7] Counsel was alive to the law concerning the jurisdiction and discretion ofgrant ofstay ofexecution under rules 2(2) and 6(2) ofthe Rules of this Court. She also cited Section 33 of the Judicature Act and section 98 of the Civil Procedure Rules, regarding the inherent powers of this honourable court to make orders necessary for the ends ofjustice to be met. - [8] Counsel cited Hon Theodorc Ssckikubo and 4 Others vs. The Attorncy General and Another, Constitutional Application No. 06 of 2013, which states the principles of the grant of an application for stay of execution. - [9] Regarding the likelihood of success or a prima facie case, counsel submitted that there is a likelihood ofsuccess. Counsel argued that land

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- ⁵ ownership was determined in a divorce petition, yet the applicant who had an interest in the land was condemned unheard. It was further submitted that the applicant purchased the suit property from Johka Print Machinery Limited and was in possession of the same until he was evicted, and the land is about to be sold. - [10] On whether the applicant will suffer irreparable damages, counsel submitted that the applicant would suffer irreparable damage since he was a third party to the divorce proceedings that affected his property rights. That is, if this property is sold, the loss cannot be atoned in costs. - [1 1] Conceming whether the application was instituted without due delay, it was submitted that he was never aware of the eviction and demolition order. 'Ihe tenants were only shocked to see men with pangas, bailiffs, and the police men who came to evict them on the l6th day of August2024. FIe filed the application at the same time. It was submitted further that the application was not scheduled earlier because the proceedings ofthe Fligh Coun had not been filed. 15 20 - U2) On balance of convenience, counsel submitted that it was in favour of the applicant and that if the application is not granted, the appeal shall be rendered nugatory.

# Submissions for thc Rcsponde nt

- [3] Counsel for the Respondent raised some preliminary points of law on three grounds. - [4] Counsel argued that the applicant seeks to depart from their pleadings, which is contrary to the law. Counsel contended that during his submissions, counsel for the applicant included a third prayer that,

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"the sale ofthe suit land comprised in Kyadondo Block 246 Plot 1635 Land at Kyeitabye be stayed pending appeal. " Counsel argued that, according to Jani Properties Limited vs Dar-es-Salma City Council (1996) EA 281, each party was bound by their pleadings. Counsel stated that this was an abuse of the court process. Counsel prayed that this coufi reject it.

- [15] It was submitted that the applicant has no locus standi to apply for a stay of execution. Counsel cited Mozley & Whitley's Law Dictionary, 1lth Edition at page 16l, to the effect that the locus standi means a right ofappearance in a Court ofJustice. In other words, it is a right to be heard on merits. Counsel argued that this application emanates from a Divorce Cause where the applicant was not a party to the suit. Counsel submitted that in the Divorce cause, the court found that suit property comprised in Kyadondo Block246 Plot 1635 Land at Kyeitabye belonged to the respondent and her then husband, Mr. John Kaddu Bwabye and that the same constituted matrimonial property. Counsel further stated that the court found that the land had been fraudulently transferred to M/s JOI{KA Print Machinery Ltd and used the same as a device, sham, cloak, and mask to fraudulently defeat the interests of the respondent. Thus, the entry of M/S JOIIKA Print Machinery Ltd onto the Certificate of Title was cancelled because it had no interest and could not transfer the same to the applicant. Counsel argued that the applicant was not a proper party to the suit. - [16] Counsel also argued that the application was res judicata. Counsel argued that the applicant under paragraphs 4, 8 and 9 ofthe affidavit in support of the application, raised issues of purchase, ownership, fraud and cancellation ofentries on the certificate oftitle in

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⁵ respect of the suit land. Counsel further stated that these matters were subject to litigation before a competent Court as provided under section 7 of the Civil Procedure Act. These issues were addressed in Divorce Cause No. 02 of 2018, HCMA No. 143 of 2023, and IICMA Nos. 74 &75 of2024.

# Mcrits of the Applications

.lr7) Counsel cited Hon Theodore Ssekikubo & 4 Others vs AG(supra). Counsel submitted that the applicant claimed to have hled Civil Appeal No. 1527 of 2023, however the Notice of appeal and Memorandum of appeal were not served on the respondent contrary to Rule 78(1) of the Rules of this Cour1, which requires that the same be served on the opposite party within 7 days from the date of filing. Counsel cited David Etukct vs Okonye Mustafa & Anor, CACA No. 170 of 2009, where the application was dismissed for failure to take the relevant steps within the prescribed time.

[ 8] Counsel argued that the appeal was incompetent for failure to comply with Rule 105 (1) of the Rules of this Court.

[1 9] On irreparable damages, counsel argued that the applicant has not demonstrated that he would suffer irreparable damages. The court found that the property belonged to the respondent and her husband, Mr. John Kaddu Bwabye and that the same was matrimonial property. Counsel submitted that to the extent, the applicant has been severally found to lack locus to file any litigation in respect of the suit property, counsel prayed that this ground be answered in the negative, since the applicant has not pleaded nor proven that he will suffer irreparable damage.

5lPage - ⁵ [20] It was submitted that the balance of convenience is in favour of the respondent who is entitled to occupy the same as a spouse and by court order. That the respondent was a victim of fraud that was only reversed by the Court in Divorce Cause No. 02 of 2018 and Miscellaneous Application No. 86 of 2023 .

l2ll Counsel submitted that the execution is complete. That the applicant has no valid appeal before this court.

## Rejoinder

- l22l Counsel for the Applicant submitted that he has locus because he has an interest in the land and was condemned unheard, which constitutes a total miscarriage of justice. That the applicant was in possession of the suit land when the judgment was passed and he was evicted from the suit land. - 123) Regarding Res Judicata, counsel submitted that the Applicant has never filed any stay for execution before this court. IIe applied before the High Court vide HCMA No.74 and 75,2024, but they were all dismissed for lack of merit. Counsel argued that it is not true that the application is Res judicata. - [24] Conceming Notice of Appeal, counsel submitted that the Notice of Appeal was filed on the 13th day of October 2023, the Registrar of Court endorsed it on 23'd October 2023 and it was served to counsel for the Respondent on the 27th day of October 2023. He argued that the Notice of Appeal was filed and served on time. - [25] On whether the applicant will suffer irreparable injury, counsel acknowledges that the applicant will suffer irreparable damages if the application is not granted. He argued that the respondent had an order of attachment and sale of the suit land comprised in Kyadondo Block

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- ⁵ 246 Plot I 63 5 land at Kyeitabye to clear a debt of a bill of costs arising out of Divorce Cause No. 02 of 2018. The respondent will not suffer any loss if the order is granted. - 126) On balance of convenience, it should be tilted to the applicant because he has proved all the grounds for the grant ofstay ofexecution.

## Consideration of Court.

127) As rightly stated by both counsel for the Applicant and Respondent, the jurisdiction of this Court to grant a stay of execution is set out in Rule 6(2) (b) of the Rules of this Court, which provides that:

> "2. Subjecl to sub-rule (l), the inslitution of an appeal shall not operale to suspend any sentence or stcty execulion but lhe Court may:

> b) in any civil proceedings, where a notice ofoppeol has been lodged in accordance wilh rule 76 of these Rules, order a stay of execution.........on such terms as the Court may think just".

[28] This rule and rule 2 (2) give this Court the discretion, in civil proceedings, where a notice of appeal has been lodged following rule 76 of the Rules of this Court, to order a stay ofexecution in appropriate cases and on terms that it thinks fit. This discretionary power must be exercised judiciously in a way that does not prevent a party from pursuing its appeal so that the same is not rendered nugatory should the appeal overturn the trial court's decision.

- ⁵ 129) I have carefully considered the Notice of Motion, the affidavits, the annexures thereto, as well as the law and authorities relied upon. I have also considered the submissions of counsel. - [30] The respondent raised three preliminary objections on tlree fronts, namely, that the applicant added a third ground that was not in the Notice of Motion, the applicant does not have locus standi to bring the application and that the matter was res judicata. - [3 1] When I examined the applicant's submissions, counsel did not substantiate the alleged third ground; I believe it was abandoned, and as such, this court will not address it. Though I strongly agree with the submissions of counsel for the respondent that a party is bound by their pleadings and cannot raise new grounds later on in the submissions. - [32] Regarding whether the applicant has locus or not, Rule 6(2) provides that this court can grant an application for stay of execution to anyone who has filed an appeal according to Rule 76 of the Rules of this Court. 'lhe locus arises from Rule 6(2). According to Annexture "D', which is the Notice of appeal, the applicant has locus because he had filed an appeal. What the respondent tries to raise at this point are the merits of the appeal, which this court is not supposed to consider while granting this application.

[33] Turning to whether the matter is res judicata, it is not disputed that the applicant applied for a stay of execution in the High Court. The applicant first applied for a stay of execution in the High Court and it was denied. In Asante Aviation Limited and 3 others vs Stanbic Bank Uganda and another Court of Appeal, Civil Application No. 0286 of 2020, it was held that an application for stay of execution should first be instituted in the Fligh Court and in so far as relevant to this matter, only if the IJigh Court refuses to grant the stay of execution

[34) All the preliminary objections are therefore overruled.

# Merits of the appeal.

- [35] With regard to the first condition, the applicant did not attach ^a Memorandum of Appeal; I was able to access the Memorandum of Appeal on ECCMIS. The ground of appeal is that, "The learned Judge erred in law when she held that HCMA No. 541 of 2023 tuas res judicata and thus atived at a wrong decision. " I find that this condition has been met. - [36] On whether the applicant will suffer substantial loss, counsel for the applicant submitted that an Order was made vide HC EMA No. 24 of 2023 for attachment and sale of this suit land comprised in Kyadondo Block 246 Plot I 63 5 land at Kyeitabye to clear a debt of a bill ol costs arising out of Divorce Cause No. 02 of 2018. The respondent's counsel opposed the claim of substantial loss and stated that the decree was fully executed when the suit properly was registered in the names of the respondent and that ofher ex-husband, as tenants in common and there is nothing to stay. I find that the applicant has failed to fulfill this condition because since the suit property has already

⁵ been transferred to the names of the respondent then there is no loss to suffer since execution is already complete.

l37l Regarding balance of convenience, it is in favour of the respondent who has been registered on the suit property. The purpose of a grant of stay of execution, is to preserve the status quo but as it is, there is nothing to preserve. The title has already transferred in the names of the respondent. Granting this application will be instead altering the status quo.

[38] I find that this application has no merit. It is hereby dismissed.

### Decision

- (a) The application is dismissed. - (b)Costs will follow the cause. - I so order.

Itlf Dated, signed and delivered at Kampala this Day.].a/r1....of 2025


# C. GASHIITABAKE

# JUSTICE OF APPEAL

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