[2023] UGHC 461

**THE REPUBLIC OF UGANDA**

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

**MISCELLANEOUS CAUSE NO. 86 OF 2023**

**Arising from High Court Civil Appeals 41 and 40 of 2017**

**Arising from Kasese Chief Magistrate Miscellaneous Applications 8 and 9 of 2017**

**All Arising from Kasese Chief Magistrate Court Civil Suits 26 and 27 of 2016**

**MUHINDO BOLINGO ERIFAZI APPLICANT**

**VERSUS**

1. **KATUMBA EMMANUEL** 2. **BUSINGE JUSTINE RESPONDENTS**

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

Applicant represented by Praxlex Advocates

Respondents represented by Bagyenda and Co. Advocates (ex parte)

**RULING**

This application is brought under the provisions of Sections 98 and 33 of the Civil Procedure Act, Order 22 Rule 26, Order 43 and Order 52 Rules 1 and 3 of the Civil Procedure Rules for Orders that,

1. The execution of the judgment and decree in the Chief Magistrate’s Court of Kasese vide Civil Suit No 26 of 2016 and Civil Suit No 27; and Fort Portal High Court Civil Appeals No 40 and 41 of 2017 be stayed pending hearing and determination of the intended Appeal in the Court of Appeal. 2. The costs of this application be provided for.

**BACKGROUND:**

The grounds of this application as laid out in the Notice of Motion and supported by the affidavit of the Applicant Muhindo Bolingo Erifazi in summary are as follows.

The Applicant was successfully sued for trespass on land by the 1st and 2nd Respondents in the Chief Magistrate Court of Kasese vide Civil Suits 26 and 27 respectively. As a result, judgment was made against the Applicant ex parte and orders made for the Applicant to vacate the suit land and to pay damages and costs to the Respondents in their respective suits.

The Applicant tried unsuccessfully to have the execution orders arising from the aforementioned judgment decrees set aside vide Chief Magistrate Court of Kasese Miscellaneous Application No 8 and No 9 of 2017.

The Applicant then went on to file two appeals before the High Court in Fort Portal against the 1st and 2nd Respondents vide Civil Appeals No 41 and 40 respectively. In both appeals the Applicant unsuccessfully sought to have the decisions in Kasese Chief Magistrate Court Miscellaneous Applications No 8 and No 9 as well as the Civil Suits No 27 and 26 from which they respectively arose set aside.

It is against the background above that the Applicant filed a Notice of Appeal in the Court of Appeal and now seeks a stay of execution before this Court.

**Merits of the Application:**

Rule 42(1) of The Judicature (Court of Appeal Rules) Directions provides that whenever an application may be made either in the court (being Court of Appeal) or in the High Court, it shall be made first in the High Court.

The rule above therefore enjoins any party desirous of securing a stay of execution of any orders for which an appeal is intended or already filed before the Court of Appeal to initially seek a stay of execution before High Court.

In the case of ***Moses Ingura v Law Development Centre*** - ***HCMA 133 of 2005***, the court held that execution being a creature of statute could not be stayed by inference or implication and that any party desirous of staying an execution must apply for it by Notice of Motion accompanied by affidavit.

The purpose of the stay of execution was laid out in the case of ***Horizon Coaches Ltd v Pan African Insurance Ltd - SCCA No 20 of 2002*** where Kanyeihamba JSC as he then was held that where a Notice of Appeal or an application or indeed an appeal is pending before the Supreme Court, it is right and proper that an interim order for stay of execution either in the High Court of any court be granted in the interest of injustice (sic) and to prevent the proceeding and any order therefrom of this court being rendered nugatory.

In the present application it is clear that without the stay of execution there is indeed a real risk that the grounds for which the appeal is intended to be pursued may be rendered nugatory especially in as much as the orders require eviction and demolition of a structure housing the Applicant and his family.

However, in addition to the above the Supreme Court has laid out other primary considerations to guide on whether or not a stay of execution should be granted or not. In the case of ***Wilson Mukiibi v James Semusambwa - SCCA No 9 of 2003*** Mulenga JSC as he then was held that,

*“It is trite that an intention to appeal per se is not a ground for stay of execution and instituting an appeal does not operate as a stay of execution. A party seeking a stay of execution must satisfy the court that there is sufficient cause why the party with judgment should postpone the engagement of its benefits. It is not sufficient for the judgment debtor to say that he is vulnerable because the successful party may take out execution proceedings. It must be shown that if execution proceeds there may be some irreparable loss caused. Secondly, it is a cardinal principle that, save in exceptional circumstances, every party to a dispute before court for hearing must be given notice thereof and opportunity to be heard before the court adjudicates on the dispute. The court will proceed ex parte only when it is satisfied that proceeding inter partes is likely to defeat the ends of justice, or when the party given notice fails to avail itself of the opportunity to be heard.*

In the present application it is clear that there is risk of irreparable damage if the Applicant and his family are evicted and the structure in which they are residing is demolished. In Paragraph 15 of the affidavit in support of the Notice of Motion, the Applicant deponed that he had constructed a residential home upon purchase if the suit land and if evicted by way of execution, the intended appeal will be rendered baseless and his family will become homeless.

Furthermore, it is also clear from the affidavit of the affidavit of one Emmason Nzogi of Praxlex Advocates dated 1st November 2023 that the Respondents were availed the opportunity to be heard when service of the Notice of Motion was effected upon their lawyers Bagyenda and Company Advocates on 1st November 2023. This court being satisfied that the Respondents were properly notified about the application proceeded to hear the application ex parte on 15th December 2023.

In the submissions made by Counsel for the Applicant both orally and in writing reliance was placed upon the case of ***Theodore Sekikubo & Others v Attorney General and Another - Constitutional Application No. 6 of 2013*** in which the Supreme Court further guided on the following standards to be used in the determination of applications for stay of execution. In that case the Supreme Court guided as follows.

1. The application must establish that his appeal has a likelihood of success; or a prima facie case of his right to appeal. 2. It must also be established that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if stay is not granted. 3. If 1 and 2 has not been established, court must consider where balance of convenience lies. 4. The applicant must also establish that the application was instituted without delay.

**Resolution:**

Based on the foregoing analysis and merits above it is my finding that:

1. From a perusal of the intended grounds of appeal spelt laid out in the Applicant’s supporting affidavit and the decisions of courts against which the appeal is intended, the applicant has a prima facie case warranting the attention of the Court of Appeal. 2. As already explained above, there is a likelihood of irreparable damage and the intended appeal being rendered nugatory if the stay of execution is not granted. 3. Notwithstanding the findings above, it is also clear that the balance of convenience lies more in the favour of the Applicant who stands to lose more without the stay of execution. 4. There was no apparent inordinate delay in the filing of this application. The Notice to Show Cause why Execution should not Issue was served on the Applicant on 30th April 2023 and there is no evidence that the execution sought to be stayed has been effected. 5. The Respondents were properly served through their known advocates and neither filed any affidavits in reply nor appeared in court on 17th November 2023, the date indicated in the Notice and the 15th of December 2023, the date to which the application was subsequently adjourned and heard by this court.

**ORDERS:**

1. In accordance with Section 98 of the Civil Procedure Act and Order 22 Rule 26 of the Civil Procedure Rules I hereby ORDER the stay of execution of the decree in Fort Portal High Court Execution No 31 of 2023 arising from Fort Portal High Court Civil Appeal No. 41 arising from Kasese Chief Magistrate Court Miscellaneous Application No 9 of 2017 arising from Kasese Chief Magistrate Court Civil Suit No 26 of 2016 pending the determination of the Applicant’s intended appeal before the Court of Appeal. 2. Costs shall abide by the outcome of the appeal.

**David S. L. Makumbi**

**AG. JUDGE**

**18th December 2023**