[2024] UGHC 1104

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**MISCELLANEOUS APPLICATION NO. 08 OF 2024**

**(ARISING FROM MISCELLANEOUS APPLICATION NO. 07 OF 2024)**

**(ARISING FROM EXECUTION APPLICATION NO. 18 OF 2024)**

**(ARISING FROM HCT-01-CV-CS-002)**

**KASESE MUNICIPAL COUNCIL===============APPLICANT/JUDGMENT DEBTOR**

**VERSUS**

**KOBUSINGYE MARGARET TUWANGYE**

**Administrator of the Estate of the Late Tuwangye Joram==================================================RESPONDENT**

**BEFORE HON. JUSTICE DAVID S. L. MAKUMBI**

Applicant represented by Attorney General’s Chambers

Respondent represented by Kaahwa, Kafuuzi, Bwiruka & Co. Advocates

**RULING**

**BACKGROUND:**

This Application is brought by way of Notice of Motion under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act, Order 22 Rule 23, Order 51 Rule 6, Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules.

The Applicant seeks to heard for Orders that:

1. An Interim Order of stay of execution of the decree in HCT-01-CV-CS-002 of 2011 be issued pending the hearing and final determination/disposal of the Applicant’s main Application for Stay of Execution. 2. The Warrant of Attachment and Sale of moveable property in Execution of decree for money issued on 2nd May 2024 in this matter be vacated. 3. The costs of the Application be provided for.

The grounds of the application contained in the Affidavit of Bamanyisa Geoffrey in brief are that:

1. Judgment was delivered in favour of the Respondent on 29th May 2020 in HCT-01-CV-CS-0002 of 2011. 2. The Respondent being dissatisfied with the decision filed a Notice of Appeal. 3. The Applicant has filed a main application for stay of execution pending before this Honourable Court. 4. There is an imminent threat of execution of the decree and orders of the Court by the Respondent. 5. The Applicant was served with Notice to Show Cause Why Execution Should Not Issue dated 16th April 2024 and a Warrant of Attachment and Sale of Moveable Property in Execution of Decree for Money was issued by this Court on 2nd May 2024. 6. The Respondent has since attached Motor Vehicle Reg. No. 0002-112 belonging to the Applicant/Judgment Debtor and advertised it for sale by public auction. 7. If this Application is not granted the Main Application for stay and subsequent Appeal will be rendered nugatory. 8. The Applicant’s Main Application for Stay of Execution is meritorious and stands high chances of success. 9. The Applicant will suffer irreparable damage if no interim order for stay of execution is granted pending the outcome of the Main Application for Stay of Execution. 10. It is fair, just and equitable that an order for stay of execution be granted pending the hearing and disposal of the Applicant’s Appeal.

In the Affidavit in Support of the Application, the Town Clerk of the Applicant reiterates the grounds above but in addition stated that the failure to respond to the Notice to Show Cause Why Execution Should not Issue on 23rd April 2024 was due to confusion about where the Notice would be handled whether in Kasese or Fort Portal.

He further stated that the Applicant was ready and willing to abide by conditions set by court with regard to the stay of execution.

Counsel for the Applicant filed written submissions in support of the Application and raised two issues.

1. Whether there was a substantive application; and 2. Whether there is a serious threat of execution before the hearing of the pending substantive application.

With regard to the first issue Counsel submitted based on the Supreme Court decision in **Hwan Sung Industries Ltd v Tajdin Hussein and Others – SCCA 79 of 2008** that there is a substantive application before this court.

As concerns the second issue Counsel argued on the basis of the decisions in **Kyambogo University v Prof. Isaiah Omollo Ndiege CACA No. 341 of 2013** and **Charles Nyanzi v Margaret Nanyonga & Godfrey Senyonga SCCA No 12 of 2010**. Counsel argued that based on the foregoing cases the Applicant faced imminent danger of the sort that would cause irreparable harm as the disposal of the attached vehicle would hamper service delivery during the census period.

The Respondent filed an Affidavit in Reply sworn by Robert Kyaligonza. In reply to the application the Respondent explained how the execution arose and stated that the Applicant has never filed an appeal. The Respondent contended that the Applicant failed to respond to two Notices to Show Cause Why Execution should not issue and furthermore that the bailiff had already attached and advertised the vehicle for auction. The Respondent further stated that there is no irreparable damage likely to be suffered and that the application is a waste of time and ought to be dismissed.

Counsel for the Respondent argued against the application reiterating that the Applicant had not responded to Notices to Show Cause and that no irreparable damage had been demonstrated. Counsel further argued that the main application stood to fail as there was no pending appeal by the Applicant.

**ANALYSIS AND RESOLUTION OF THE APPLICATION:**

Having had the benefit of looking at the application and the submissions of the parties I adopt the issues as set forth by the applicant above and resolve them as follows:

**ISSUE 1:**

Concerning whether there is a substantive application, I find that there is indeed a pending substantive application for stay of execution.

**ISSUE 2:**

As concerns whether there is a serious threat of execution, I do find indeed that there is imminent threat of execution as the vehicle has already been attached and advertised for sale. However, as is evident in the court decisions cited by Counsel for the Applicant, imminent danger and existence of a substantive application are not the only parameters by which the court is guided in reaching a decision.

Court must be satisfied that there is likelihood of irreparable damage. In this regard, I tend to agree with Counsel for the Respondent that irreparable damage has not been adequately demonstrated. The fact that there is an ongoing census exercise may be a valid concern but the Respondent did not lead any evidence to show how the census activities will be adversely affected. It is not simply a question of stating the fact, the fact has to be proved.

Furthermore, by the Applicant’s own pleadings there is reference to an Appeal. In making reference to a pending Appeal the Applicant automatically became bound in the same pleadings to prove the existence of the appeal whether by Notice of Appeal or Memorandum of Appeal. As far as I can tell it was only the Respondent who filed a Notice of Appeal. However, the Respondent’s Notice of Appeal cannot form the basis for the Applicant to fail to act in response to the Notice to Show Cause why Execution Should Not Issue.

This leads me to the reason advanced by the Applicant for failing to attend to the Notice in relation to execution. I find that even if there was confusion about where the hearing was to take place, the Applicant had the means to cause appearance in either location. The Attorney General’s Regional Office is located in Fort Portal. There was therefore nothing preventing the Applicant from alerting their lawyers to attend in that regard. The same goes for Kasese because Kasese is where the Applicant is based.

All in all I find this situation a most unfortunate situation that demonstrates lack of coordination between government departments. Kasese Municipal Council has had knowledge of this matter right from the point when judgment was delivered. It was incumbent upon the Municipality to advise their lawyers in good time to respond appropriately to any situation that may arise. It is trite law that a successful party in any legal proceedings must not be unduly hampered from enjoying the fruits of their successful litigation.

In this instance, what the Applicant is seeking from Court is tantamount to Court contradicting its own decisions both at judgment and execution stages without justification.

In the Kyambogo Case cited above, the Court of Appeal set forth the following parameters beyond imminent danger for granting stay of execution,

1. The Application must not be frivolous and should have a likelihood of success. 2. The refusal to grant the stay would inflict more hardship than it would avoid.

Concerning hardship, I already indicated that the hardship has not been sufficiently demonstrated.

With regard to likelihood of success I cannot see any indication of how the main application will succeed as I have not seen any proof of the appeal that the Applicant refers to in their pleadings.

I therefore resolve this issue in the negative because it is not only threat of execution that determines whether an application whether interim or not should succeed. There should be proof that it is not frivolous and founded on an action that has likelihood of success.

**ORDER:**

This Application is accordingly dismissed with costs to the Respondents. In the event that the Applicant believes that there are grounds upon which the main application will succeed the same will be set down for hearing.

So ordered

**David S. L. Makumbi**

**JUDGE**

**23/5/24**