[2025] UGCA 52

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### crvrL APPLTCAT|oN NO.640 0F 2024

### (Arising from Civil Appeal No.255 of 2O221

# 10 MUNYIRA CHARLES & 6 OTHERS APPLICANTS

#### VERSUS

#### APOLLO SIMON PETER BALYEIDHUSA RESPONDEN

#### Before Hon. Justice Moses Kazibwe Kawumi

#### (Sitting as a single Judge)

#### RULING OF THE COURT

The Applicants brought an application by Notice of Motion with ^a supporting affidavit deposed by Bageya David, the 6th Applicant, seeking orders that;-

- i)An order for stay of execution of the decree in Civil Suits No.0C50 of ²⁰¹³and No.68 of 20L4 be granted pending the hearing an j final disposal of the appeal. - ²⁵ ii) Costs of the application be provided for.

#### Background

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The background as derived from the application and the affidavits by the respective parties is straightforward. The Applicants were the losing parties in both Civil Suits No.005O of 20L3 and No.68 of 20L4 in the High Cr:urt of Uganda at Jinja. The Applicants were dissatisfied with the decision of the court upon which they lodged Civil Appeal No.640 of 2024 pending hearing in this court.


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The parties to the Application are all children of the late Yefusa Munyira who resided on the suit property comprised in Plot 57B,Main Street, lganga Municipality prior to his death in L997. The property had been under the management of the Departed Asians Custodian Board. The Applicants contend that Plot 578 belonged to and subsequently became part of the estate of their late father Yefusa Munyira.

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I he Respondent claims to be the sole owner of the suit property having paid off the original Asian owner and subsequently bought his rights from the Departed Asians Custodian Board together with his business partner James Batuka. lt was his contention that Yefusa Munyira was registered as a co-owner since as the sitting tenant he had the first option to purchase the property from the Custodian Board but died before his name was removed from the certificate of title. 15

The irial Court held that both the late Yefusa and the Respondent owned 50% of the property described as Plot 57B as joint tenants. The 50% was owned by a one James Batuka as Plot 57A as a tenant in common on the sarne certificate of title.

The Applicants contend that they met all the required conditions for the grant of an Order to stay execution of the Decree issued by the High Court. They claim that the Appeal was filed without undue delay and it has ^a likelihood of success.

It is {urther contended, that the Applicants' mothers and siblings reside on the suit property and wil! suffer irreparable injury if evicted from the suit property. The Appeal wil! also be rendered nugatory if they are evicted before it is finally determined. 30

⁵ The Respondent opposed the application. The Respondent contends that he bought the suit property on which he built shops but was evicted bV the Applicants who from 20L3 have been co!lecting rent from the premises.

The Respondent denies that any of the Applicants resides on the suit property and claims that no irreparable injury will be occasioned to any of them if the application is denied. 10

!t is argued by the Respondent that the Appeal has no likelihood of success and would not be rendered nugatory since the suit property would still exist until it is determined. The Respondent further argues that the Applicants who have benefitted from the suit property since 20L3 did not deposit security for due performance but only appealed to further frustrate and deprive him of the fruits of his judgment. 15

#### Representation 20

Mr. Bwire Joseph appeared for the Applicants while Mr. Galisonga assisted by Mr. Wanume lvan appeared for the Respondent. The submissions filed by Counsel were on application adopted by the court as their fina! arguments for the determination of the application. The submissions have not been reproduced but have been considered in rendering the decision.

# Determination

The issues for the court to resolve appear to be;

L. Whether the Application meets the conditions for the grant of an order to stay execution of the decree in Civil Suits No.050 of 2013 and No.68 of 20L4.

2. Remedies available to the parties.

- ⁵ ln Tlteodore Ssekikubo & 3 others V. The Attorney General &4 others. Constitutional Application No.06 of 2013 the Supreme Court re-stated the principles to consider before granting an order of stay of execution pending appeal. The principles are thaU- - 1) lt must be established that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. - 2) The application must establish that the appeal has a likelihood of success; or a prima facie case of his right to appeal. - 3) lf (i) and (ii) above have not been established, the court must consider where the balance of convenience !ies. - 4) That the applicant must establish that the application was instituted without delay.

The principles willguide me while to determine whetherthe Applicant has met the conditions necessary for the grant of the reliefs sought.

It is not in dispute that there is a pending Appeal filed by the Applicants in this court on 26th April 202L after receiving the judgment of the High Court on 22d April 202L. The Applicants further lodged a Memorandum of Appea! on 8th June 2022. lt follows from the above that the Appeal was filed v.rith.rut undue delay. 25

# 1. Whether the Appeal has a likelihood of success

It is now well settled law that in order to succeed on this ground, the Applicant must place before the court material that goes beyond a mere statement that the appeal has a likelihood of success. See Osman Kassim

- Ramathan V Century Bottling Company Ltd. SC Civil No.34 of 2019. 35 - 4of8

5 The Applicants contend that the Appeal raises pertinent issues regardrng succession to property, evaluation of evidence and co-ownership of estates of deceased persons. lt is particularly argued that there was no joint tenancy created between the late Yefusa and the Respondent as held by the trial court since what creates such a tenancy did not exist at the time Yefusa died.

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The Applicants further fault the trial Judge for the decision that 50% of the property was owned as a tenancy in common while 50% was a jcint tenancy between the Respondent and the late Yefusa and both were over the same land title.

The mandate of the court in applications of this nature does not extend to a determination on the merits of the appeal but stops at determining whether the appeal is frivolous.

- 20 An appeal will be considered to be frivolous if prima facie the gl:tunds raised are without any reasonable basis in law and cannot be supported by a good faith argument. See Formula Feeds Ltd &Others V KCB Bank Ltd. HCMA No.647 ot 2022 - 25 A perusal of the judgment of the record of the lower court however does not support the contention raised by the Applicants on appea!. Evidence was laid out to show how Batuka, the Respondent and the late Yefusa came to be registered on the same title as joint tenants.

30 By mutual conduct of the parties, Plot 57A remained with Batuka wlrich to that extent destroyed the unity of possession but the same cannot be said for the Respondent and Yefusa.

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⁵ Since the property had been divided into portions 57A and 578 by the Custodian Board for management purposes and it is not disputed that Batuka paid for one of the two portions, there would be no merit in the contention that a certificate of title could not be held by common tenants cne side and by joint tenants as the other parties.

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The Applicants contention in the Appeal is further defeated by the fact that they do not contest the ownership of Plot 57A by James Batuka yet he had originally registered as a joint tenant on the same title with the Respondent and Yefusa.

! fail to find any reasonable basis for the Appeal lodged by the Applicants. I finc! credence in the assertion by the Respondent that the Appeal is only interided to frustrate the enjoyment of the fruits of his judgment.

- !t has been held by this court that a stay of execution is ordered to preserve the status quo or where the decree in question is affected by a glaring flaw in the record of the lower court as to make the appeal very likely to succeed. This cannot be said of the decree appealed from by the Applicants. 20 - Kyarrbogo University V Prof,lsiah Omolo Ndiege, CACA No.341 of 2013. 25

Given the above analysis, I hold that the applicants failed to prove in their application, affidavit or otherwise that the appeal has a likelihood of success and the application thus fails on this essential requirement.

2. Whether the Applicants are bound to suffer irreparable damage if the application is not granted.

⁵ !n order to succeed on this ground, the Applicants must prove compelling and exceptional circumstances to prevent the defeat of justice by depriving the successful party of the fruits of his judgment. The Applicants claim to have stayed on the suit property which is now occupied by Yefusa 's widows and young children.

An applicant ought to establish factors, which show that the executi rn will create a state of affairs that wil! irreparably affect or negate the very essential core of the Applicant as the successful party in the Appeal. The loss ought to be of a nature which cannot be undone once inflicted.

Kabito Karamaji &DFCU Bank Ltd V Yanjin (U)Company Limited & Another, Miscellaneous Application No.1274 of 2023. 15

The Respondent claims that he built shops on the suit land which have since 20L3 been managed by the Respondents to his detriment. lt 's also not disputed that Yefusa died in October L997. This destroys the assert.on that he left minor children who with his widows occupy the suit property.

The Applicants shall not suffer any irreparable injury if the application is not granted. Any possible loss is monetary being the rent they are bound to forfeit if the Respondent succeeds in executing the decree issued by the High Court. The same can be recovered from the Respondent if the Appeal is decided in favour of the Applicants. 25

I find compelling the decision of this court in Stanbic Bank V Atyaba Agencies, CACA No.31 of 2OO4 to the effect that an order to stay execution, whose effect is to deny or delay the Respondent from enjoying the fruits of the judgment, should only be granted in exceptional and compelling circumstances or in any case upon defined conditions. 30

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I thus hold that the Applicant shall not suffer any irreparable loss or injury $\mathsf{S}$ if the Application is not granted by the court. I do not deem it necessary to delve into the arguments relating to the balance of convenience.

Remedies Available to the parties.

The Application fails and I make the following orders;

1 The Application is dismissed. $10$

2. Costs of the application shall abide the outcome of the Appeal

2. Costs of <u>States</u>.<br>Dated and delivered at Kampala this <u>Influ</u> of <u>February</u> 2025.

**Moses Kazibwe Kawumi** Justice of Appeal