[2024] UGHC 295

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA **MISCELLANEOUS APPLICATION NO. 66 OF 2023** (ARISING FROM CIVIL APPEAL NO. 03 OF 2020) (ARISING OUT OF MASAKA CHIEF MAGISTRATES COURT CIVIL SUIT NO. 186 OF 2012)

# PATRICK KEZAALA KAYONDO::::::::::::::::::::::::::::::::::: VERSUS

1. STEVEN SEWAYA SEVUME 2. MAGALA CHRISTOPHER

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#### **Before: HON JUSTICE LAWRENCE TWEYANZE**

#### **RULING**

#### Background.

- 1. The Applicant filed Civil Suit No. 186 of 2012 at the Chief Magistrates Court of Masaka against the Respondents herein seeking among others for declarations that they were trespassers on his land measuring approximately 24.01 hectares situate at Kanena-Kisekka, Masaka (Lwengo) District and comprised in Leasehold Register Volume 2502 Folio 5, Plot No. 51 Block 499 registered in the names of Patrick Kezaala Kayondo. The Respondentss denied having trespassed onto the Applicants land and Counter - claimed that the Applicant had entered into their land, erroneously surveyed it and started carrying out several activities like farming without the consent of the Respondents and or the beneficiaries. - 2. The Trial Magistrate found that the Respondents were not trespassers and are rightful owners of land comprised in Buddu Block 498 Plot 3 (formerly MRV 75 Folio 6) known as Kyembazi and Kiseka measuring 167.2 acres, dismissed the Applicant's suit and granted the Counter - Claim as prayed. Dissatisfied with the Judgment and Decree of the Trial Magistrate, the Applicant filed an Appeal in this Court and Court dismissed the said Appeal with costs to the Respondents and upheld the decision of the Trial Magistrate.

## **The Application.**

3. The Applicant brought this Application under Section 33 of the Judicature Act and Section 98 of the Civil Procedure Act; seeking for an Order of stay of execution restraining the Respondents, their agents, servants and anyone rightfully claiming under them from executing the judgment and decree of this Honourable Court in Civil

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Appeal No. 003 of 2020; Patrick Kezaala Kayondo Vs Steven Sewaya Sevuma and Magala Christopher pending the final determination of Court of Appeal Civil Appeal No. 0076 of 2023; Patrick Kezaala Kayondo Vs Steven Sewaya Sevuma and Magala Christopher and that costs of this Application be provided for.

- 4. The grounds of the Application are contained in the Affidavit of Patrick Kezaala Kayondo, the Applicant and these grounds briefly are:- The Applicant being dissatisfied with the Judgment and Decree of this Honourable Court in Civil Appeal No. 003 of 2020; has lodged Court of Appeal Civil Appeal No.0076 of 2023; Patrick Kezaala Kayondo -versus-Steven Sewaya Sevuma and Magala Christopher with a likelihood of success which is still pending in the Court of Appeal of Uganda at Kampala; That there is imminent threat of execution of the Judgment and Decree of this Honourable Court in Civil Appeal No. 003 of 2020; Patrick Kezaala Kayondo – versus - Steven Sewaya Sevuma and Magala Christopher since the Respondents have already started the eviction process without any execution order. - 5. That if this Application is not granted, Court of Appeal Civil Appeal No.0076 of 2023; Patrick Kezaala Kayondo versus - Steven Sewaya Sevuma and Magala Christopher will be rendered nugatory. This Application has been filed without any unreasonable delay on the part of the Applicant.

#### The Affidavits in Reply.

- 6. The 2^nd Respondent filed an Affidavit in reply and stated that he has never appeared on the site of the suit land with a gang of goons as alleged by the Applicant. That in the alternative but without prejudice to the averment in paragraph 4 above, that any entry on the suit land is pursuant to the decree in Civil Suit No. 186 of 2012 which renders this Application a nugatory; That the contents of paragraphs 7 of the Affidavit in support of the Application are mere falsehoods as there is no eminent threat to property and life of the Applicant. - 7. That the Applicant's Appeal to Court of Appeal does not raise any arguable grounds that merit judicial consideration; That Applicant's Certificate of Title is an illegality and a grant of stay of execution would be sanctioning an illegality; That he is in possession of the suit land and this Application is overtaken by events. - 8. That if this Honourable Court is inclined in granting this Application, the Applicant should be ordered to deposit a security in Court in a sum of Ugx, $250,000,000/$ =(Uganda Shillings Two Hundred Fifty Million) being the approximate value of the suit property, damages and costs. That the Affidavit in support of the Application is fatally defective in form and substance, full of falsehoods and that this Court shall be moved to dismiss the same with costs.

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- 9. The $1^st$ Respondent filed a supplementary Affidavit in reply wherein he entirely associated himself with the 1^st Respondent's Affidavit. - 10. The Applicant filed an Affidavit in rejoinder wherein he restated the content in his Affidavit in support of the Application.

# Representation.

11. The Applicant was represented by $M/s$ Mbeeta, Kamya & Co. Advocates while the Respondents were represented by $M/s$ Lukwago & Co. Advocates.

#### Submissions.

12. The parties were directed to file written submissions. Counsel for the Applicants filed their submissions and as well as Counsel for the Respondents. I have read and appreciated the contents of the Affidavit in support of the Application, the Respondents' Affidavits in reply, the rejoinder and the submissions of the parties. I will refer to the submissions as and when I find it necessary since they majorly repeat the contents of the Affidavits save for the cited authorities.

#### Issue.

The only ground for determination is whether the Applicant has satisfied the requirements for grant of a stay of execution.

#### **Decision of Court.**

- 13. I have carefully perused the submissions of both Counsel in this Application for stay of execution; the law has been properly cited and argued by both Counsel but for emphasis; for an Application for stay of execution to be granted, the Applicant must show sufficient grounds laid out under Order 43 rule 4 $(1)$ , 4 $(2)$ , and 4 $(3)$ of the Civil Procedure Rules, Order 22 rule 23 and 26 of the Civil Procedure Rules; - 14. It is a settled position of law that an Applicant seeking stay of execution must meet the conditions set out in Order. 43 r.4 (3) of the Civil Procedure Rules and those in the case of Lawrence Musiitwa Kyazze Vs Eunice Businge, Supreme Court Civil *Application No 18 of 1990,* but more pronounced in the Supreme Court Case of *Hon* Theodore Ssekikubo and Others Vs Attorney General and Others Constitutional *Application No. 03 of 2014,* which include: - a. The Applicant must show that he lodged a Notice of Appeal; - b. That substantial loss may result to the Applicant unless the stay of execution is granted;

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- c. That the Application has been made without unreasonable delay; - d. That the Applicant has given security for due performance of the decree or order as may ultimately be binding upon him. Stop 420pm - 15. Although one may have the right to appeal such right must be exercised within the time - frame given and not just brought for the sake of it. It is important that the Applicant has taken steps to appeal, he is likely to suffer substantial loss or irreparable damage; no time has been wasted, security for costs has been given to avoid flimsy intentions to Appeal and that the scales of convenience tilts in his/her favour and that there is notice (see the case of *Nabossa v Yagala & 4 Ors* (*Miscellaneous Application No.* 2699 *of* 2016); I shall address each of the grounds.

#### The Applicant must show that he lodged a Notice of Appeal;

- 16. The Applicant filed a Notice of Appeal and it was as well served in this Court vide Draft-COA-00-CV-0076-2023 on the 18^th day of January 2023; a copy of a Notice of Appeal is on record as Annexture 'A'. In the case of *Attorney General of the Republic* of Uganda Vs The East African Law Society & Another EACA Application No.1 of 2013. It was held that a Notice of Appeal is a sufficient expression of an intention to file an Appeal and that such an action is sufficient to found the basis for grant of orders of stay in appropriate cases; the Applicant had requested for a record of proceedings from the High Court vide a letter dated 18^th January 2023 after the Judgment which was delivered on the same day of $18^{th}$ January 2023. - 17. In Kampala Capital City Authority versus Mulangira Joseph MA 26/2016 it was held that "a court is constrained to take into account the peculiar circumstances of the case to wit that the Applicant expressed the intention to appeal as soon as judgment was delivered and *applied for certified proceedings and copy of the judgment".* - 18. Having found a Notice of Appeal and a letter requesting for a typed record of proceedings dated 18^th day of January 2023, it is sufficient for this Court to find that there is a Notice of Appeal;

That substantial loss may result to the Applicant unless the stay of execution is granted;

19. In Tropical Commodities Supplies Ltd & 2 Others v International Credit Bank Ltd (*In Liquidation*) [2004] 2 *EA* 331, *Ogoola J* held that the phrase substantial loss does not represent any particular amount or size, it cannot be qualified by any particular

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mathematical formula. It refers to any loss great or small: of real worth or value as distinguished from a loss that is merely nominal;

- 20. The Applicant in paragraphs 6 and 7 of his Affidavit states that on the $17^th$ day of February 2023, the Respondents were well informed of the existence of the Appeal in the Court of Appeal, raided the suit property / land with a gang of goons without any orders as to execution of the Judgment and decree of Civil Appeal No. 003 of 2020, Patrick Kezaala Kayondo –versus - Steven Sewaya Sevuma and Magala Christopher, cutting down trees, destroying property and fencing off part of the suit land which has coffee plantations. The Applicant relied on the Photographs of the said incident, which I have had the benefit of looking at. - 21. The Applicant further stated that he reported the incident to police and the Resident District Commissioner as the Respondents act posed eminent damage to the suit property and threat to his life. - 22. On the otherhand, the $2^{nd}$ Respondent in his Affidavit in reply stated that he has never appeared on the site of the suit land with a gang of goons as alleged by the Applicant. That in alternative but without prejudice to the averment in paragraph 4 above, that any entry on the suit land is pursuant to the decree in Civil Suit No. 186 of 2012 which renders this Application a nugatory; That the contents of paragraphs 7 of the Affidavit in support of the Application are mere falsehoods as there is no eminent threat to property and life of the Applicant. These averments were repeated in submissions. - 23. I have also perused the motion plus the supporting Affidavit and keenly observed the attached photographs. Clearly, there are people in the photographs who appear to be on the suit land and images of the cut trees are seen as well. Basing on this, I find that the Applicant has demonstrated imminent threats by the Respondents to carry out execution even without a Court order. This indicates that substantial loss may result to the Applicant unless the stay of execution is granted. I am satisfied that this condition has been proved by the Applicant.

#### That the Application has been made without unreasonable delay;

24. The record shows that the Application was filed without unreasonable delay given the fact that a Notice of Appeal was filed on the 18^th day of January 2023 and a Memorandum of Appeal filed on the 17^th day of February 2023. This Application was filed on 22^nd March 2023 that is a time frame of about 1 month. I therefore find that this condition has been satisfied by the Applicant.

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# That the Appeal has a likelihood of success; or a prima-facie case.

- 25. Likelihood of success does not mean that the suit shall succeed but whether there are triable matters; whether there is merit in the case; it means the existence of serious questions to be tried. In *GAPCO Uganda Ltd v Kaweesa & Anor* (MA No. 259 of 2013) [2013] UGHCLD 47 Court stated that 'the Court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. (See American *Cyanamid versus Ethicon* [1975] *ALLER* 504). - 26. The Applicants challenging the decision in Civil Appeal No. 003 of 2020. In paragraph 8 of the Affidavit in support, the Applicant states Court of Appeal in Civil Appeal No. 0076 has high chances of success and raises bonafide issues to wit; that the Learned trial Judge erred in law and fact when he held that the Applicant's title was tainted with illegalities when no such illegalities were pleaded; the Learned Trial Judge erred in law when he relied on uncertified documents attached to the surveyors' reports to come to the conclusion that the suit land belongs to Yokana Muwanga. In my view, these are triable issues that require decision of the Court of Appeal and therefore, this condition has been satisfied.

# That the Applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

- 27. With reference to security for due performance of the decree, the 2^nd Respondents in Paragraph 10 of the Affidavit in reply stated that if this Honourable Court is inclined in granting this Application, the Applicants should be ordered to deposit a security in Court in a sum of $Ugx$ , 250,000,000/= (Uganda Shillings Two Hundred Fifty Million) being the approximate value of the suit property, damages and costs. - 28. The Applicant did not specifically make any statement in the Affidavit in regards the security for due performance of the decree. - 29. The law states that in order for this Court to grant an order for stay of execution, it must be satisfied that security has been given by the Applicant for the due performance of the decree or order as may ultimately be binding upon him or her. - 30. In the case of Walusimbi Mustafa Vs Musenze Lukia; High Court Miscellaneous Application No. 0232 of 2018, Justice Luswata stated that, "Without any commitment by the Applicant in his or her Application or supporting Affidavit to furnish security for due *performance or costs, a stay would not be granted despite having satisfied the other conditions* necessary."

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- 31. However, in submissions, the Applicant cited the case of John Baptist Kawanga versus Namyalo Kevina and another Misc. Application No. 12 of 2017, where my learned brother Hon. Justice Dr. Flavian Zeija, stated that "every Application should be handled on merits and a decision of whether or not to order for security for due performance be made according to the circumstances of each case. The objective of the legal provisions on security was never intended to fetter the right of Appeal.....in essence, the decision whether to order for security of due performance must be made in consonance with the probability of the success of the Appeal." - 32. The above reasoning in John Baptist Kawanga versus Namyalo Kevina is quite persuasive to me and I would entirely agree with it. The Applicant in paragraph 13 of his Affidavit in support stated that he invested all his youthful energy on the suit land until when he retired from public service, and he is only getting his sustenance from farming on the suit land. These averments are of a nature that would give the Applicant a benefit of doubt and thus I would decline to make any orders for security of due performance. - 33. In conclusion, I hereby grant an order for stay of execution since the Applicant has proved most of the pertinent requirements for stay of execution. This is premised on the principle that it is the paramount duty of a Court to which an Application for stay of execution pending an Appeal is made to see that the Appeal, if successful is not rendered nugatory. - 34. Costs shall abide the outcome of the Appeal in the Court of Appeal.

I so order.

Ruling signed and delivered by email this 25^th day of April, 2024

LAWRENCE TWEYANZE JUDGE. 25^th April, 2024.