[2025] UGCA 221

#### ⁵ THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPATA

## clvtt APPLICATIoN No. 513 0F 2024

## (AR|S|NG FROM Clvlt APPEAL NO. 7L2 OF 2024l.

## (ALL ARTSING FROM HCCS NO.37 OF 2017)

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# MUHAMMAD MUSOKE::::r::::::::::::::::::::::::::::::::::::::::::r::::::::::::!:: APPLICANT VERSUS

GGINGO CHARLES MUJJE RESPONDENT

# r5 BEFORE: HON. JUSTICE MUSA SSEKAANA, JA

# lSittine as a Sinele lustice)

## RULING

This application was brought by way of notice of motion under Rules 2(2), 6(2) (b) of the Judicature (Court of Appeal Rules) Directions S.l 13-10 seeking the zo following Orders that;

7. An order for stay of execution and/or setting aside execution of the decree and orders issued in EMA NUMBER 20 OF 2025 arising from judgement delivered on 74th August 2024 in the High couft in H. C. C. S No 37 of 2017 be stayed pending the hearing and determination of Civil Appeal No.712 of 2024.

# 2. Costs of this application be proved for;

The grounds in support of the application are briefly set out in the Notice of Motion and the affidavit in support sworn by MUSOKE MUHAMMADI, briefly 30 stating that;

- - L. That the applicant being dissatisfied with the judgement and orders issued in H. C. C. S No. 37 of 2017 before Hon. Lady Justice Victoria N'N KATAMBA

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⁵ on the L4th August 2024 filed a notice of appeal in the High court Masaka at Masaka.

- 2. That the applicant filed Civil Appeal No. 7L2 of 2024 after being availed with all the necessary document's to file an appeal to set aside the judgment and decree of the lower court. - 3. That the respondent is in the process of executing the order's in the judgement of the H. C. C. S No. 37 of 2017 having filled a notice to show cause fixed to be heard on 10th June 2025. - 4. That the applicant made several remainders before the former Principal )udge Hon Dr. Justice Flavia Zeija who advised Hon lustice Lawrence Tweyanze in October, 2024 for expeditious hearing and disposal of the applicant's application M. A No. t30 ot 2024 but it has been not possible up to date. l5 - 5. That the inability to have the applicant's application Misc. application No. 130 of 2024 which was filed in September 2024 for stay execution heard and determined in time in the High court was due to the busy schedule of court that they are handling a criminal session in Lwengo and thereafter un inclusive session at Masaka High Court. - 6. That the learned Judge informed the applicant that she will not be able to hear his application for M. A. NO.130 OF 2024 being that she is handling a criminal session in Lwengo and thereafter an inclusive session at Masaka High Court Masaka and therefore the matter M,A. NO.130 OF 2025 will be fixed for August after the conclusion of the criminal sessions on 2L't August 2025 above. - 7. That M. A. NO. 130 OF 2024, M. A. NO.04 OF 2025 and civil appeal No. 712 of 2024 will all be rendered moot and nugatory if E. M. A. NO.20 OF 2025 is not stayed. - 8. That there is a serious and imminent threat to the respondent of execution of the decree and orders issued in H. C. C. S No. 37 ol 2OL7 as a notice to show cause why execution should not issue on the taxed and allowed costs

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in T. A No. 54 of 2024 in favor of the Respondent has been fixed on 10^th June 2025.

9. Irreparable loss will result to the applicant if this application is not granted. 10. That this application has been brought without unreasonable delay.

- 10 The respondent on the other hand filed an affidavit in reply to the application, briefly stating; - 1. That this application is frivolous and vexatious, grossly misconceived and bad in law for disclosing no genuine grounds for stay of execution. - 2. That the respondent shall raise preliminary objections at the hearing that 15 this application is an abuse of court process and that it was filed prematurely. - 3. That upon delivery of the ruling in Taxation Application No. 54 of 2024 by Her Worship Loe Karungi, the Deputy Registrar of the High Court of Uganda 20 at Masaka on 14^th/04/2025 and M/s Magellan Kazibwe & Co. Advocates filed EMA No.20 of 2025 and a NTSC was issued to that effect against the applicant. - 4. That the respondent filed an affidavit in reply to HCMA No. 130 of 2024 and 25 the said application is bound to be dismissed since it does not disclose any ground for stay of execution. - 5. That it is not allowed to have the same application for stay of execution pending in two different courts which might result in conflicting decisions. - 6. That not only did the applicant file HCMA No. 130 of 2024 seeking for orders for stay of execution in EMA No. 20 of 2025 but also filed Taxation Reference No. 04 of 2025 seeking to challenge the taxed and allowed costs of Ugx. 35,630,000/= awarded to me in TA. No. 54 of 2023 from which the said Execution Application arises. - 7. That execution only relates to the recovery of my costs which the applicant is obliged to pay and not any other order given in the lower court.

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- 8. That it is not sufJlcient for the applicant to state that there is an imminent threat of execution in HCCS No.37 of 2017 with a reason that I obtained a NTSC against him but rather it must be shown that if execution proceeds there may be irreparable loss suffered by the Applicant. - 9. That the letter from the Principal Judge dated 24'hl!01201.4 to the head of Masaka High Court clearly shows that before Hon. Justice Lawrence Tweyanze was transferred, he had fixed the applicant's application on an earliest date of 26th /0212025 fot heaing. - 10. That whereas all the pleadings were filed, the applicant never bothered to follow up on his application until 09/05/2025 when he wrote a letter to the current presiding Judge seeking to fix a hearing date for HCMA No, 130 of 2024. - 11. That Her Worship Loe Karungi was correct to state in her ruling in Taxation Application No.54 of 2024 that there was no order staying taxation of my bill of costs from either the trial Court or the Court of Appeal and thus taxation had to proceed. - 12. That CACA No. 712 of 2024 has no merit and is bound to be dismissed with costs. - 13. That there is no sufficient reason for staying EMA No. 20 of 2025 since CACA No.712 of 2024 is bound to be dismissed for lack of merit. - l4. That the judgement in HccS No. 37 of 2017 was delivered on l4'h lOBl2O24 and the instant application was filed on 27rh lO5/2O25 which is 9 months and 13 days. 30 - 1s. That there is a period of 3 months and 10 days from when HCMA No. 130 of 2024 was filed and instant application and yet the former has never been disposed of thus implying an abuse of court process. - 16. That the application does not satisfy the cardinal conditions for the Srant of the instant application since the same is improperly before this honourable Court. tl

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# 5 Representation.

At the hearing, the applicant was represented by Counsel Aine Mbabazi Twijukye holding brief for Damalie Tamutenda and no one for the respondent.

#### Both parties filed written submissions

r0 Counsel for the applicant submitted that Rule 42(1) of the Judicature (Court of Appeal) Rules requires that an application for stay of execution must be filed in the High Court and it is only when after the High Court has declined to grant the application then one files a fresh application before this Honourable Court.

As per paragraph 2 of the affidavit in support of the Musoke Muhammadi, it is ls clear that the Application for stay of execution which filed at High Court in Masaka is yet to be heard and determined,

The Applicant's Counsel cited the case ot AUGUSTINE MUKllBl VERSUS HOSANNA EVAGELLSn|C M|SS|ON AND 4 OTHERS (COA CIVIL APPLICA|ION NO. 295 OF 2017), ELIZABEIH MUSOKE /.rll (as she then was) held inter-alia;

20 "applying to the High Court first in applications of this nature serves to save time and resources since the court which issued the decree or order is better placed to hear and determine the matter without undue delay"

Counsel for the Applicant argued that in the instant application raises special circumstances for this Honourable Court to entertain this application under Rule

- 25 42(2) off the Court of Appeal Rules since evidence was presented bytheapplicant to prove that he indeed followed up on having his application for stay of execution at Masaka High Court fixed for hearing and he was informed that the Court can only entertain his application in August 2025 as there is an onSoing criminal session in Lwengo and thereafter a conclusive criminal session at Masaka - 30 High Court as seen undeT Paragraph 2 of the applicant's supporting afJidavit and Annexture "A" .

Counsel noted that Rule 6(2) (b) ludicature (Court of Appeal) Rules- Directions inter-alia provides that this Honourable Court has powers to stay execution where a Notice of Appeal has been filed in accordance with Rule 76 off the rules.

15 ln the case oI LAWRENCE MUSITWA KYAZZE vercus EUNICE BUSINGYE, Civil Application No. 18 of 1990, the Supreme Court of Uganda ruled that in applications for stay of execution pending appeal, the applicant must be prepared

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5 to meet conditions similar to those set out under Order 39 Rule 4(3) now Order 43 Rule 4(3) of the Civil Procedure Rules.

The applicant's Counsel stated that Rule 4(3) of Order 43 CPR when read together with Rule 6(2) (b) of the Judicature (Court of Appeal) Rules-Directions, no stay of execution is to be ordered unless the court making it is satisfied that:

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- (a) the applicant(s) must show that a Notice of Appeal was lodged in accordance with Rule 76. - (b) Substantial loss shall result to party applying for the stay unless the order is made: - (c) the application has been made without unreasonable delay; and - (d) that the applicant is ready to abide with the courts directive on security for the due performance off the order for stay.

Counsel for the Applicant contended that this Honourable Court can only grant an order for stay execution if there is a valid Notice of Appeal filed in compliance with Rule 76 off thee Judicature (Court of Appeal) Rules-Directions which the

20 applicant fulfilled and a copy is on record.

That the applicant filed Civil Appeal No. 712 of 2024 which is pending hearing before this Honourable Court that has already been sent to the justices for further management and hence invite this Honourable Court to find that this condition has been satisfied.

- Counsel for the applicant submitted that the substantial loss does not represent 25 any particular amount or size, and it cannot be quantified by any particular mathematical formula. Rather it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value, as distinguished from a loss without value or a loss that is merely nominal. - In light of the foregoing, we invite this Honourable Court to find that the 30 Applicant is likely to suffer substantial loss if execution of the decree is not stayed pending disposal of the pending civil appeal no. 712 of 2024.

Counsel for the Applicant averred that the applicant first Miscellaneous Application No. 130 of 2024 before the High Court in Masaka September 2024 but

due its busy schedule on account that there is an ongoing criminal session in 35 Lwengo and thereafter a conclusive criminal session at Masaka high Court until August 2024, yet EMA. No. 20 of 2025 is fixed on 10^th June 2025 and it's a settled law that an appeal doesn't not act as an order for stay of execution and if no $\leq$

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5 order is issued by this honourable court, the respondent intends to go on with the execution of the orders issued in H. C. C. S. No. 37 which are the grounds of appeal.

That the applicant was then compelled to file the instant Application before this Honorable Court Seeking order of stay of execution.

Counsel for the applicant prayed that security for the performance of the order a 10 discretion of court as to impose security for costs or not in the interest of justice as a condition for the grant of the order for stay execution of the decree pending the hearing and determination of civil appeal no. 712 of 2024 which is a ground of appeal and has been already sent to the justices for further management on the 22^nd May 2025.

- This demonstrates that this application is not intended to defeat the respondent 15 from enjoying the fruits of his success in litigation but rather to balance the interests of justice for all who lodged an appeal against the judgment in H. C. C. S. No. 37 of 2017 and the respondent who holds a decree in his favour which is the grand of appeal to be set aside on appeal which he intends to execute before the - 20 hearing and determination of civil appeal no. 712 of 2024 if not stayed by this Honourable court.

The applicant's counsel invited this court to similarly find that the applicant has satisfied this condition for grant an order for stay of execution pending hearing and determination of civil appeal no. 712 of 2024 in this honourable court.

25 In response, the respondent submitted that it is not allowed in law to have the same application for stay of execution pending in two different courts which might result in conflicting decisions.

Counsel for the respondent referred to the case of Kyambogo University *=versus= Prof. Isaiah Omolo Ndiege, CACA No. 18 of 1990* that;

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"..................................... High Court first ... ... "

The learned Justice of Appeal noted that;

"It is now settled law that this Court and the High Court have concurrent jurisdiction in this matter. It appears to me that applications of this nature

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should first be filed in the High Court as a general rule, and should only be filed in this Court where exceptional circumstances exist."

# Still in the case of Augustine Mukiibi vs Hosanna Evangelistic Mission and 3 Others, CACA No.295 of 2017, Hon. Lady Justice Elizabeth Musoke, JA held that:

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"... failure to demonstrate any rare or special circumstances for not making such applications in the High Court first, an order for stay of execution cannot be granted..."

Counsel stated that from the evidence adduced by the respondent, the instant application is premature and thus the preliminary objection should be upheld.

That Rule 2(2) of the Court of Appeal Rules empowers this honourable Court to 15 reject any application which is an abuse of Court process.

The Respondent's Counsel averred that the Supreme Court in the case of Attorney General & Another =versus= James Mark Kamoga & Another, SCCA No. 8 of 2004; held that:

"Abuse of the court process involves the use of the process for an improper purpose or a purpose for which the process was not established."

The respondent's counsel cited the case of Hon. Gerald Kafuureka Karuhanga & Another =versus= The Attorney General & Another, High Court Civil Division, Misc Cause No. 060 of 2015, the Hon. Justice Stephen Musota, held as follows:-

- "The concept of abuse of court process is not very precise but the Nigerian case of R-Benkay Nigeria Ltd =versus= Cadbury Nigeria PLC SC 29 of 2006 outlines circumstances which give rise to abuse of court process and these include:- - 30

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- a) Instituting a multiplicity of actions on the same subject matter against the same issues or a multiplicity of actions on the same matter between the same parties where there exists a right to begin the action. - b) Instituting different actions between the same parties simultaneously in different courts even though on different grounds. $\leq m$

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$\mathbf{1}$ | $\mathcal{S}$ | c) Where two similar processes are used in respect of the exercise of<br>the same right for example a cross appeal and the respondents'<br>notice. | |---------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | 10 | d) Where an application for adjournment is sought by a party to an<br>action to bring an application to court for leave to raise issues of<br>fact already decided by a lower court. | | | e) Where there is no law supporting a court process or where it is<br>premised on frivolity and recklessness.<br>Where a party has adopted the system of forum shopping in the<br>enforcement of a conceived right. | | $15$ | g) Where two actions are commenced, the second asking for a relief<br>which may have been obtained in the first. In that case the<br>second action is prima facie, vexatious and an abuse of the court | | 20 | process. The said judge concluded that in "a nutshell, the<br>common feature of an abuse is in the improper use of the judicial<br>process by a party in litigation." | | | $\mathsf{T}_{\mathsf{b}} \mathsf{a} \mathsf{t} \mathsf{a} \mathsf{t} \mathsf{b} \mathsf{a} \mathsf{b} \mathsf{b} \mathsf{a} \mathsf{b} \mathsf{b} \mathsf{a} \mathsf{b} \mathsf{b} \mathsf{a} \mathsf{b} \mathsf{b} \mathsf{a} \mathsf{b} \mathsf{b} \mathsf{a} \mathsf{b} \mathsf{b} \mathsf{b} \mathsf{a} \mathsf{b} \mathsf{b} \mathsf{b} \mathsf{a} \mathsf{b} \mathsf{b} \mathsf{b} \mathsf{b} \mathsf{b} \mathsf{b$ |

That the Respondent highlighted in paragraph 7 of his affidavit in reply that it is not allowed in law to have the same application for stay of execution pending in two different courts which might result in conflicting decisions.

The respondent stated in paragraph 8 of his affidavit in reply that not only did the 25 Applicant file HCMA No.130 of 2024 seeking for orders for stay of execution in EMA No.20 of 2025 but also filed Taxation Reference No.04 of 2025 seeking to challenge the taxed and allowed costs of Ugx.35,630,000/= awarded to him in TA. No.54 of 2025 from which the said Execution Application arises.

That this preliminary objection should be upheld.

Counsel contended that HCMA No.130 of 2024, Taxation Reference No.04 of 2025 30 and the instant application all challenge the execution process in the High Court of Uganda at Masaka and thus an abuse of court process.

That the respondent stated in paragraph 3 of his affidavit in reply this application is frivolous and vexatious, grossly misconceived and bad in law for disclosing no genuine grounds for stay of execution.

That the respondent stated in paragraph 4 of his affidavit in reply that that this application is an abuse of court process and that it was filed prematurely. $\leq r$

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That the respondent stated in paragraph 6 of his affidavit in reply to HCMA $\mathsf{S}$ No.130 of 2024 and he honestly believed them that the said application is bound to be dismissed since it does not disclose any ground for stay of execution.

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That the respondent stated in paragraph 10 of his affidavit in reply that it is not sufficient for the applicant to state that there is an imminent threat of execution in HCCS No.37 of 2017 with a reason that he obtained a NTSC against him but rather it must be shown that if execution proceeds there may be irreparable loss suffered by the applicant.

That the respondent states in paragraph 14 of his affidavit in reply that CACA No.712 of 2024 has no merit and is bound to be dismissed with costs.

That the respondent stated in paragraph 15 of his affidavit in reply that there is $15$ no sufficient reason for staying EMA No.20 of 2025 since CACA No.712 of 2024 is bound to be dismissed for lack of merit.

That the respondent stated in paragraph 15 of his affidavit in reply that he honestly believed that judgment in HCCS No.37 of 2017 was delivered on 14^th 20 /08/2024 and the instant application was filed on $27$ ^th /05/2025 which is 9 months and 13 days.

It was propounded in *Hon. Theodore Ssekikubo & Others vs Attorney General &* Others, CACA No.03 of 2014 that the principles on which court relies to grant a stay of execution are the following:-

- 1) The applicant must establish that his or her appeal has chances of success. $25$ - 2) That the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if the stay is not granted. - 3) If 1 and 2 above have not been established, the court must consider where the balance of convenience lies. - 4) That the application was instituted without delay. 30

On whether the Applicant has satisfied court that his appeal has a likelihood of success.

That the respondent stated in paragraph 14 of his affidavit in reply that CACA No.712 of 2024 has no merit and is bound to be dismissed with costs.

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5 Counsel for the respondent argued that evidence was adduced at the trial court to prove that there was no valid agreement at all between the applicant and the respondent and thus there is no way the applicant would have acquired interest in the suit land

Counsel still submitted that the trial judge was right to hold that there was no 10 valid sale agreement between the applicant and the respondent and that no interest was transferred to the applicant.

On whether the Applicant will suffer irreparable damage if the execution is not stayed;

That the respondent stated in paragraph 10 of his affidavit in reply that it is not sufficient for the applicant to state that there is an imminent threat of execution $15$ in HCCS No.37 of 2017 with a reason that he obtained a NTSC against him but rather it must be shown that if execution proceeds there may be irreparable loss suffered by the applicant.

Counsel for the respondent cited the case of *Lubega Moses vs Nassimbwa Sylvia*, 20 CACA No.0122 of 2024, Christopher Gashirabake, JA cited in approval with the decision in the case of Twongyeirwe Peter =versus= Muhumuza Peter, CACA No.0681 of 2021 that:

"-- satisfaction of a money decree does not ordinarily pose the danger of rendering a pending appeal nugatory. Where the respondent is not impecunious, the remedy of restitution is available to them in the event the appeal is allowed. The presumption then is that payment made to the respondent in the execution of the decree will be reversible in the event of the succeeding appeal. If it is reversible, it has to be shown that damages will not reasonably compensate them or that it is in the public interest to grant a stay…."

Counsel for the respondent submitted that from the evidence adduced above, the Applicant has totally failed to prove that he will suffer irreparable damage if the execution in the trial court is not stayed.

Counsel noted that since the decretal sum is claimed from the Applicant, the balance of convenience tilts towards the Respondent.

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## 5 On whether the application was instituted without delay;

That the respondent stated in paragraph 15 of his affidavit in repry thatjudgment in HCCS No.37 of 20r.7 was derivered on L4th rog/2024 and the insianiapptication was filed on27rh /05/2025 which is 9 months and 13 days,

counsel acknowredged that from the evidence adduced, the instant apprication l0 was delayed and the same shourd be dismissed with costs to \*re Reifonaent.

ln the Lubega Moses case (supra), Hon, Justice Christopher Gashirabake, JA noted that

"considering the raw under rure 6(2), the institution of an appear does not operate as a stay of execution. The appricant must adduce evidence to ls satisfy this court that there is need to grant a stay of execution. one of the requirements for the grant of stay of execution is the need to deposit security for due performance.,,

The respondent's counser argued that the appricant has neither deposited nor indicated that he would deposit the security for due performance.

## zo Consideration of Court /Analysis.

This court derives its mandate for stay of execution from Rule 2 (2) of the Judicature (Court ofAppeal Rules) Direction S.l 13\_10.

specifically, Rule 6(2) (b) of the Rules of this court which provides that:

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'2. subject to sub-rure (1), the institution of an appear shail not operate to suspend any sentence or stay execution but the toun may.

b) in any civir proceedings, where a notice of appear has been todged following rule Z6 of these Rules, order a stay of execution \_.-.on such terms as the court may think just.,

:o The general principre is that where an unsuccessfur party is exercising their unrestricted right to appeal, it is the duty of the court to make such order for staying of proceedings in the judgement appeared from as we, prevent the appeal from being rendered nugatory.

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- The conditions under which an application for stay of execution can succeed $\mathsf{S}$ which were well expounded in the case of Lawrence Musiitwa Kyazze vs Eunice Busingye (Supreme Court Civil Application No. 18 of 1990) but more pronounced in the Supreme Court case of Hon. Theodore Ssekikubo and Ors vs The Attorney **General** to include: - 1. That the applicant must show that he lodged a notice of appeal. 10 - 2. That substantial loss may result to the applicant unless the stay of execution is granted. - 3. That the application has been made without unreasonable delay. - 4. That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

This court in Kyambogo University Prof. Isaiah Omolo Ndiege (Supra) expanded the list to include:

- 1. That the Applicant has lodged a notice of appeal in accordance with Rule 76 of the Rules of this Court. - 2. That a substantive application for stay of execution has been filed in this 20 court and is pending hearing. - 3. That the said substantive application and the appeal are not frivolous and they have a likelihood of success. - 4. That there is a serious and imminent threat of execution of the decree or order and that if the application is not granted the main application and the appeal will be rendered nugatory. - 5. That the application was made without unreasonable delay - 6. The applicant is prepared to grant security for due performance of the decree. - 7. That refusal to grant the stay would inflict greater hardship than it would 30 avoid.

Upon considering the submissions from both parties, it is clear that the Applicant initiated an application for stay of execution HCMA No. 130 of 2024 in the High Court in September 2024. It is further undisputed that this application has not yet

been heard or determined by the High Court. 35

The Applicant's counsel confirmed that the application for stay of execution filed at the High Court in Masaka is yet to be heard and determined.

The reason for approaching this Court was the High Court has a busy schedule, stating that their application would not be heard until August 2025 due to

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ongoing criminal sessions. While the Court acknowledges the challenges of court $\mathsf{S}$ schedules, this does not automatically create the exceptional circumstances required to bypass the High Court, especially when the initial application for the same relief is still pending before it.

The established legal principle is that applications for stay of execution should ¹⁰ ordinarily be filed first in the High Court.

Section 98 of the Civil Procedure Act Cap 282 and Order 43, rule 4 of the Civil **Procedure Rules** gives the High Court inherent powers to take decisions which are pertinent to the ends of justice, and an orders for stay of execution is such one.

This practice aims to save time and resources, as the court that issued the decree is better placed to hear and determine the matter without undue delay. It is only $15$ when the High Court has declined to grant the application, or in truly exceptional circumstances, that a fresh application before this Honourable Court becomes appropriate.

In this case, the High Court has not yet pronounced itself on HCMA No. 130 of 2024. The applicant's action of filing a parallel application for stay of execution in 20 this Court while the High Court application for the same relief is still awaiting hearing and determination, constitutes an abuse of court process.

I agree with the respondent's counsel submission on the definition of Abuse of Court process by the Supreme Court in Attorney General & Another v. James

25 Mark Kamoga & Another, SCCA No. 8 of 2004,

"Abuse of court process involves the use of the process for an improper purpose".

The principles as cited by the Respondent in R-Benkay Nigeria Ltd v. Cadbury Nigeria PLC SC 29 of 2006, including instituting different actions between the

same parties simultaneously in different courts or commencing a second action 30 for relief that could have been obtained in the first, are directly applicable here.

The applicant has chosen to pursue a parallel application for stay of execution in the Court of Appeal while an existing and substantially similar application HCMA No. 130 of 2024 for the very same relief remains pending and yet to be heard and determined by the High Court.

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This double pursuit of the same remedy in different courts simultaneously is a clear instance of an abuse of court process and carries the significant risk of

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⁵ conflicting decisions, which the entire regar system aims to prevent. rt is an abuse of the process of the court to maintain two parailer and identicar apprications on the same matter. See Nyokabi Karanja and Otherc v Kamuingi Housing Co Limited- Nairobi Court of Appeal Civil Application No. 61 of 200i

The High court, as the foundationar forum for such apprications, has not yet had the opportunity to exercise its discretion on the matter, and its process shourd be respected and concruded before this court is approached on this matter. t0

The applicant has faired to demonstrate the necessary exceptionar circumstances to justify why he shourd bypass the High court initiar determination of their application for stay. secondry, the appricant has not attached the judgment of the trial court which should guide the court in the exercise of its discretion whether to hear and determine the application for stay before the court of appeal.

similarly, the appricant has fired an appear (taxation reference) against the taxation ruring of the rearned deputy registrar contesting the award of 35,630,000/=. This makes the triar court as th'e best forum for determination of whether a stay of execution ought to be granted and not the court of appeal. The application for stay is against payment of costs that have been dury taxed by court.

- The position with regard to an apprication for stay of costs awarded by the Taxing Master is different from the situation in which stay of execution is sought pending hearing and determination of an intended appear against the jud"gmeni and decree' The applicant cannot escape paying some costs incurred by the winning party in prosecuting the case and the pending appear wourd not be rendered nugatory. See Easf African Deveropment Bani v Brue Line Enterprises Limited [2006] 2 EA s1 25 - Therefore, this apprication for stay of execution is prematurery before this court, and its continuation would amount to an abuse of the court process. 30

For the reasons stated above,

- a. This application is hereby dismissed. - b. Costs of this application shall be borne by the applicant. - 35 lso order

,tr Dated at Kampala this------7-----------day of ²⁰²⁵

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MUSA SSEKAANA **JUSTICE OF APPEAL**

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