[2024] UGCA 335

### THE REPUBLIC OF UGANDA

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

CIVIL APPLICATION NO. 1096 OF 2023

(Arising from Civil Application No. 295 of 2O2L)

(Coram: Geoffrey Kiryabwire, JA sitting as a single Judge)


#### RULING

## A. lntroduction

- !. This Application was brought under section 11 of the Judicature Act, Rule 6(2l,(b) and 43 of the Judicature (Court of Appeal Rules) Directions S.l 13-10 (herein after referred to as the "Court of Appeal Rules") and Article 126(2Xa) and (b) of the Constitution. - 2. The Applicants seek an interim order of stay of execution in respect of the Decree in Civi! Suit No. 55 of 2018 pending the hearing and determination of the substantive application for stay of execution, Miscellaneous Application No. 295 of zOZt, that is pending before the Court. The Application is supported by an affidavit deponed by Mr. James Jjuuko James (herein after referred to as the "First Applicant') dated Llth Octobe r 2023. - 3. The background to this Application is the Judgment in Civil Suit No.55 of 2018 was on L5th December 2018 delivered in favour of the Respondents. The Applicants thereupon lodged Civi! Appeal No. 100 of 202L, in Court, as well as an application Miscellaneous Application No 31 of 2021. for stay of execution before the trial court. Following the dismissal of that application by the High Court, the Applicants filed Miscellaneous Application No. 295 of 2021 seeking the stay of execution of the decree in Civil Suit No. 55 of 2018 pending the determination of the Appeal. The Applicants also sought the preservation of the status quo of the land comprised in Kyadondo Block 85 Plot 1777. - 4. The Application is opposed by the Respondents who rely on an affidavit in reply to the effect deposed by Mr. Patrick Mukasa Lutakome ('the seventh Respondent').

2lPage

5. This Application is the subject of a rehearing and is determined solely on the basis of written submissions of both parties and authorities already on Court file. I have proceeded on that basis.

# B. Parties'Leg@

- 5. Counsel for the Applicants cited the principles governing stay of in Lawrence Musiitwa Kyazze V Eunice Busingye, Civi! Application No. 18 of 1990 (SC). The ingredients therein are the filing of a Notice of Appea!; demonstration that the applicant stands to suffer substantial loss, and that the application has been made without unreasonable delay. He also referred to the matter of made to Kyambogo University V Professor lsaiah Omolo Ndiege Civil Application No. 34 of 2013 which further included the ingredient of 'o serious or eminentthreat of execution of the decree or order and if the opplication is not granted the oppeal would be rendered nugotory.' - 7. Counsel for the Applicants argued that a Notice of Appeal was duly lodged in this matter and the Respondents' application for execution of the decree. Furthermore, a lega! Notice EMA No 22 of 2021, to Show Cause why execution should not be issued, had been filed and this amounted to sufficient proof of the existence of an imminent threat of execution. In addition to the above, the Respondents'had fenced off the disputed property in respect for which interim orders are sought. Counse! argued that there is a danger of the appea! filed in this Court being rendered nugatory if this Application is not granted. lt was further argued that the Respondents would not suffer any prejudice because they were not in possession of the

land. Finally, lt is argued that the Application was filed without undue delay, that is, LL days after the rendering of the lower court's decision.

- 8. Counsel for the Respondents'counse! submitted that only two ingredients were relevant in determing this application. First, the existence of ^a substantive application for stay of execution and, secondly, whether there is an imminent threat of execution. In this regard he referred Court to the decision in National Forestry Authority V the Omukama of Bunyoro Kitara & 2 Others, Civil Application No. 255 of 2019 (COA). - 9. Counsel for the Respondent argued that the substantive application for stay referred to in the present Application has never been served upon the Respondents. Furthermore, execution has already occurred and therefore this Court should not issue an interim order in vain. - 10. Counsel for the Respondents submitted that this Application was an afterthought intended to delay the payment of the costs due to the Respondents. Counsel also argued that contrary to the Applicants'assertions about the trial Court Decree, the reality was that the Decree in Civil Suit No. 55 of 2018 was extracted in 2020 and the Notice to Show Cause why execution should not ensue was issued in May 2021. This means that the current application was filed on 16th October 2023, more than 2years since the execution proceedings began. Counsel then submitted that the Applicants should deposit security for the due payment order of Ug shs. 10,595,000f =, failure of which the Application should be dismissed.

## C. Court's determination

- 8. This is an application for interim orders and therefore lam not at liberty to interrogate the merits of either the substantive application that is pending determination by the fully constituted court or the issues for determination in the Appeal which both parties have delved into. - 9. The grant of interim injunctive reliefs is a matter of judicial discretion and is governed by Rule 2(2) of the court of Appeal Rules. That procedural rule recognizes this court's inherent powerto'moke such orders as may be necessory

4!Page

for attaining the ends of justice or to prevent obuse of the process of ony court... and shall be exercised to prevent abuse of the process of ony court coused by delay.' ln Theodore Ssekikubo & 2 others v Attorney General & 4 others, Constitutional Application No. 04 of 20L4 it was held by the Supreme Court that the preservation of parties' right of appeal was to serve the ends of justice. ln that case, the court also held that interim orders in preserving the status quo is to a!low for the determination of the issues in contention between parties by the full court (See also Uganda Revenue Authority v Nsubuga Guster & Another, Miscellaneous Application No. 16 of 2018).

I

- 10. in addition, it is trite law that for an application for interim orders of stay of execution to succeed there must be substantive application for the same relief in respect of a pending Appea!, as well as imminent threat of execution of the lower court's orders before the determination of the substantive application. The existence of a Notice of Appealfiled in accordance with the applicable rules of procedure is mandatory (See Patrick Kaumba Wiltshire V lsmail Dabule, Civi! Application No. 3 of 2018 (SC) and Theodore Ssekikubo & 2 others v The Attorney General & 4 others supra) - 11,. The circumstances of the present Application are that there is duly lodged Notice of Appeal, as wellas a pending substantive application -Civil Application No. 295 of 2021. The question, however, is whether there remains a serious threat of execution. - 12. ln this Application, as afar as discernible from the material on record, the Applicants filed the substantive application in Octobe r 2021 and filed this Application about a year later in October 2023. ln the meantime, the Respondents filed EMA No. 22 of 2021., an application to show cause why execution should not ensue that was allowed in May 2022 when the Applicants failed to attend in court. The import of paragraphs 9, 11 and !2 of the affidavit in reply is that execution has since ensued. This averment in affidavit was not rebutted by the Applicants. - 13. I have also addressed myself to the case of Gladys Mukula V Rosemary Nabukenya (Administratrix of the Estate of the Late Maria Lwiza Nalongo 5lPage

Nanyonga), Miscellaneous Application No. 211 of 2020 where an interim injunction was issued solely to avert the possible transfer of the Suit property to third parties before the determination of the pending Appeal. Similarly, in Patrick Kaumba Wiltshire V Ismail Dabule (Supra), an interim order was held to be necessary to: -

'preserve the status quo until the substantive application for a temporary *injunction is heard and determined.'*

14. However, in this case the suit property has already been alienated therefore it would be moot to issue any interim orders that seek to preserve the Applicants' alleged interest in the land. The status quo has already changed and courts do not issue orders in vain.

#### D. **Conclusion and Final Orders**

- 15. In the result, for the foregoing reasons, I am unable to grant the prayers sought and would hereby dismiss this Application. - 16. Given that I found this application to be moot and the delay in determing this matter I order that each party shall bear its own costs

It is so Ordered

Dated and delivered this $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$

**Life**

**GEOFFREY KIRYABWIRE, JA**