[2025] UGHC 129

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

**HCT-01-LD-MA NO. 0103 OF 2024**

**[ARISING OUT OF HCT-01-LD-CS-0022-2021]**

**KABUGA RANCHERS LIMITED ::::::::::::::::::::::::: APPLICANT**

**VERSUS**

1. **KAMWENGE DISTRICT LOCAL GOVERNMENT** 2. **KAMWENGE DISTRICT LAND BOARD :::::: RESPONDENTS**

**BEFORE: HON. JUSTICE VINCENT WAGONA RULING**

**Introduction:**

The Applicant filed this Application by Notice of Motion under Section 98of the Civil Procedure Act, Order 22 Rule 23, Order 43 Rule 4 (1) and Order 52 Rule 1 & 3 of the Civil Procedure Rules seeking an order to stay execution of the Judgment and decree of Court in Civil Suit No. 22 of 2001 pending the hearing and disposal of the Appeal and costs be provided for.

**Grounds of the Application**:

The motion is grounded in the Affidavit of **Kasoro Apollo**, the Applicant’s Chairperson, who deposed in brief as follows; -

1. The Applicant has appealed against the decision of the High Court to the Court of Appeal and has since filed Court of Appeal Civil Appeal No. 0652 of 2024. 2. The Respondents intend to execute the Decree/Orders of the Court in Civil Suit No. 22 of 2021 without following the due process. 3. The Applicant will suffer irreparable injury if execution of the Court decree/Orders is not stayed. 4. The Applicant’s meritorious Appeal will be rendered nugatory if execution of the Judgment and Orders/Decree in Civil Suit No. 22 o 2021 are not stayed. 5. The Applicant’s Appeal has a high likelihood of success. 6. The Application has been made without any unreasonable delay.

**Reply by the 1st Respondent**:

The 1st Respondent opposed the motion through the Affidavit in Reply of ***Mr. Turyaheebwa Hanny***, the 1st Respondent’s Chief Administrative Officer, in which it was averred, in brief as follows; -

1. The Respondents were the successfully parties in High Court Civil Suit No. 22 of 2021 wherein this Honorable Court decreed inter alai that the suit land comprised in Plots 11 and 12 Block 49 at Kabuga, Kahunge, Kamwenge District is public land lawfully held in trust by the 1st Respondent. 2. This Application is brought in bad faith, lacks merit and the Applicant’s Appeal has no chances of success but is a calculated technique merely intended to delay the Respondents from realizing the fruits of a successful litigation. 3. It is not true that the Applicant stands to be prejudiced by the boundary opening exercise because the Applicant is not in possession of the entire suit land; as they continue to forcefully trespass on this land by grazing cattle and constructing temporary shades. 4. The Application and the Affidavit in support do not disclose any good ground or sufficient cause why the order prayed for herein should be granted. 5. The Applicant does not have any permanent structures, residential homes or developments on the suit land that they stand to lose except makeshift live fences, cattle shades that they illegally placed on the land to graze their animals. 6. It is true that the 1st Respondent sought for legal guidance from the Solicitor General who advised them to proceed and conduct a boundary opening exercise of the suit land. 7. The 1st Respondent requested the District Police Commander, Kamwenge to provide them with security while the Respondent’s conduct the boundary opening exercise of the suit land. 8. The boundary opening exercise has not yet taken place as the same has been frustrated by members of the Applicant who continue to trespass on the suit land. 9. The Respondents have not started the process of executing the decree in Civil Suit No. 22 of 2021, as they have not taken out a notice of eviction which is a precondition to an application for execution of a decree in land matters and no warrant of eviction or warrant to give vacant possession have been issued by any Court in this matter against the Applicant.

**Reply by the 2nd Respondent**:

The 1st Respondent opposed the motion through the Affidavit in Reply of ***Mr. Kashaija John***, the 2nd Respondent’s Secretary. The contents of *Mr. Kashaija John’s* Affidavit in Reply are synonymous with those in *Mr. Turyaheebwa Hanny’s* Affidavit in Reply.

**Representation and Hearing**:

***Mr. Mujurizi Jamil David***, ***Mr. Tumwesigy Alfred*** and ***Mr. Joshua Arindwamuka*** appeared for the Applicant while ***Mr. Kawalya Ronald*** appeared for the Respondents. Both Counsel filed Written Submissions which have been considered.

**Issues**:

There are two issues are at the heart of this Application, to wit; -

1. **Whether the Applicant has demonstrated sufficient cause warranting grant of an order of stay of execution of the orders of this court in Civil Suit No. 22 of 2021.** 2. **What remedies are available to the parties in the circumstances?**

**CONSIDERATION OF THE APPLICATION:**

**Issue No. 1: Whether the Applicant has demonstrated sufficient cause warranting grant of an order of stay of execution of the orders of this court in Civil Suit No. 22 of 2021.**

In an application for stay of execution, the Applicant must prove the following grounds:

1. Proof of lodgment of an appeal 2. There is serious threat of execution of the decree appealed against. 3. Irreparable injury/Substantial loss my result to the applicant unless the order for stay is made. 4. Refusal to grant would inflict greater hardship than it would avoid. 5. Application was filed without unreasonable delay. 6. Deposit of security for due performance of the decree or costs.

(See: **MusiitwaKyazze vs. Eunice Busingye, Civil Application No. 18 of 1990, Dr. Ahmed MuhammedKisule Vs. Greenland Bank (in Liquidation), Supreme Court Civil Application No. 7 of 2010, and Kyambogo University vs. Prof. Isiah OmoloNdiege, C. A. C. A No. 341 of 2013**).

The grounds were outlined in the case of **Hon. Theodore Ssekikubo & Others vs. The Attorney General and Another, Constitutional 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; 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; (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 without delay.*

1. **Proof of Lodgment of an Appeal**.

The judgment in **Civil Suit No. 22 of 2021** was delivered on 8th May 2024 and on the same day, the Applicant lodged a Notice of Appeal together with a letter requesting for a typed record of proceedings. On 31st July 2024, by way of a Memorandum of Appeal which was contained in his record of Appeal, the Applicant filed Civil Appeal No. 652 of 2024 in the Court of Appeal.

In **Uganda v Ntambi Vincent, Criminal Application No. 08 of 2019**, the Supreme Court observed that a notice of appeal is the first step an intending appellant must in the process of appealing and under Rule 76(2) of the J**udicature (Court of Appeals) Rules**, the notice of appeal must be lodged within 14 days from the date the decision was made. And Rule 83 (1) of the J**udicature (Court of Appeals) Rules**, provides that; -

***“Institution of appeals***

*(1)Subject to rule 113 of these Rules, an appeal shall be instituted in the court by lodging in the registry, within sixty days after the date when the notice of appeal was lodged—*

*(a) a memorandum of appeal, in six copies, or as the registrar shall direct;*

*(b)the record of appeal, in six copies, or as the registrar shall direct;*

*(c)the prescribed fee; and(d)security for the costs of the appeal.”*

I am therefore satisfied that the Applicant lodged an Appeal in the Court of Appeal against the decision of this Court in Civil Suit No. 22 of 2021 since he has provided evidence of the Notice of Appeal and the Memorandum of Appeal.

1. **That there is a serious threat of execution of the decree or order**.

The Respondents were the successful parties in Civil Suit No. 22 of 2021 where the Court held that the suit land comprised in Plots 11 and 12 Block 49 at Kabuga, Kahunge, Kamwenge District is public land lawfully held in trust as such by the 1st Respondent and the Court also issued a permanent injunction restraining the Applicant from using the suit land without the Respondents’ consent. Pursuant to the judgment, the Respondents sought guidance from the Solicitor General in respect of the execution of the Judgment of this Court in Civil Suit No. 22 of 2021, and they were advised to proceed with the boundary opening exercise for which they sought security from the District Police Commander of Kamwenge District.

It is now settled that an order of stay of execution cannot be granted as a matter of course or based on mere speculation. The threat must be a direct peril, immediate and impending and not merely remote, uncertain, or contingent. An order of stay will issue only if there is actual or presently threatened execution. (See: **Junaco (T) Ltd & 2 others v DFCU Bank Ltd, HCMA No. 0027 of 2023 (Mubiru J) & Paul Barozi&Anor v Christopher Nicodemus Winyi, HCMA No. 027 of 2023**). Considering the significant effect of a stay of execution of a decree of court in terms of denying a successful party of the fruits of litigation, a stay is only granted where there is a serious threat of execution. There should be unequivocal evidence showing that specific verifiable steps have been taken by the respondent to convey the imminent reality of execution of the decree. Steps that demonstrate a serious expression of intent to execute include; extracting the decree, presenting and having a bill of costs taxed, applying for issuance of a warrant of execution and issuing a notice to show cause, why execution should not issue. **(See: Junaco (T) Ltd supra).**

I am alive to the position that a threat of execution exists where there is no legal bar against execution and where it is probable that the same will occur, usually by some act undertaken by the adverse party. (**See Formula Feeds Limited & Ors v KCB Bank HCMA 1647/2022).** I am further alive to the position that for a threat of execution to exist, execution proceedings need not have been formally commenced; what matters is the existence of a real and reasonably held fear of execution, arising out of circumstances demonstrating a real and reasonable threat of execution. (See **Beeline Travel Care Limited & Anor v Finance Trust Bank HCMA 296/2023, Donati Kananura v Tribet Rujugiro HCMA 1782/2022, Uganda Debt Network v Edward Ronald Sekyewa HCMA 1657/2023**).

In the instant case, a Bill of Costs has not been presented or taxed and the Respondents have not commenced any formal execution proceedings before this Court. Further, in this case the envisaged relevant execution proceedings would be directed to or relate to stopping the applicant or their members from using the suit land without the consent of the respondents; which it is not demonstrated that it is case here. The Respondents only intend to undertake boundary opening for the suit land and have taken steps of obtaining guidance from the Solicitor General and security from the police, which are preparatory towards the boundary opening. There is no complaint that this step or that the boundary opening would have an effect on the continued use of the suit land by the applicant or the applicant’s members. I therefore find that the applicant has in the context of this case failed to demonstrate and to prove that there exists a serious threat of execution of the decree in **Civil Suit No. 22 of 2021.**

1. **Irreparable injury/Substantial loss may result to the applicant unless the order for stay is made**.

The Black's Law Dictionary, 9th Edition at Page 447 defines *"irreparable damage" to mean 'damages that cannot be easily ascertained because there is no fixed pecuniary standard of assessment."* In **City Council of Kampala vs. DonozioMusisiSekyaya, CACA No. No.3 of 2000**, irreparable loss was defined as *"loss that cannot be compensated for with money."* In the case of **Proline Soccer Academy vs. Commissioner Land Registration, HCMA 494 of 2018**, the court defined irreparable damage in the following way; -

*“By irreparable injury it does not mean that there must not be physical possibility of repairing the injury, but it means that the injury or damage must be substantial or material one, that is one that cannot be adequately atoned for by way of damages.”*

The general rule is that in land disputes, damages are not usually sufficient as compensation. (See: **Shiv Construction Co. Ltd vs. Endesha Enterprises Limited. SC Civil Application No.34 of 1992)**.

In the instant case, this Court held in Civil Suit No. 22 of 2021 that the suit land is public land and issued a permanent injunction against the Applicant restraining them from using the land without the Respondent’s consent.

Boundary opening sought to be undertaken by the respondents, mainly serves the purpose of clarifying boundaries, resolving disputes, promoting peaceful coexistence, and facilitating land administration. In this case, it has not been demonstrated by the applicant that the boundary opening exercise would cause any injury or damage at all, let alone a substantial or material one, that cannot be adequately atoned for by way of damages. It would have been different if there was a threat of stopping the applicant or her members from using the land or if there was a threat of eviction. It is therefore my finding that the Applicant has failed to demonstrate and prove that they are likely to suffer any loss or irreparable loss for which damages are not sufficient as compensation.

1. **Refusal to grant would inflict greater hardship than it would avoid**.

Mr. Kasoro Apollo, the Applicant’s Chairperson averred that the Applicant uses the land to rear large herds of cattle and that the Applicant’s members have developments such as residential homes, cattle farms, and kraals on the land. The Respondents denied the Applicant’s claim of having permanent structures on the land but conceded to the fact that the Applicant has cattle sheds on the land.

Notably, there is no evidence that the boundary opening exercise would in any way affect the applicants’ stated use of the land and developments. I therefore find that it has not been demonstrated and proved that refusal to grant the order would cause any hardship, let alone more hardship than it would avoid.

At this stage I have so far found that the applicant has failed to prove the following grounds:

1. That there is a serious threat of execution of the decree or order; 2. That irreparable injury/Substantial loss may result to the applicant unless the order for stay is made; 3. That refusal to grant this application would inflict greater hardship than it would avoid.

I therefore find no need to discuss the remaining grounds. The application fails at this stage and is hereby dismissed with costs awarded to the respondents. It is so ordered.

**Dated at Fort Portal this 28th day of February 2025**


Vincent Wagona

High Court Judge

**FORTPORTAL**