[2025] UGCA 204

THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

**CIVIL APPLICATION NO. 0655 OF 2024**

(*Arising from Civil Appeal No. 11 of 2020*)

(Arising from High Court Civil Suit No. 188 of 2015)

| 10 | 1. MUZAMIL MOHAMED RAJAR | |----|--------------------------| | | |

- 2. MANSUR MOHAMED RAJAB - 3. **YUSUF MOHAMED RAJAB ...................................**

#### **VERSUS**

| 1. HADADI MOHAMED RAJAB | 15 | | | | | | | | | | | |-------------------------|----|--|--|--|--|--|--|--|--|--|--| |-------------------------|----|--|--|--|--|--|--|--|--|--|--|

- 2. HAMZA MOHAMED RAJAB - 3. MUSA MOHAMED RAJAB - 4. HUSSEIN MOHAMED RAJAB - 5. ABDU MOHAMED RAJAB - 6. HASSAN MOHAMED RAJAB...................................

# **RULING OF CHRISTOPHER GASHIRABAKE, JA** (SINGLE JUSTICE)

### **Introduction**

- [1] This application was brought under Rules $2(2)$ , $6(2)(b)$ , $42(3)$ , $43(1)$ and $44(1)$ 25 of the Judicature (Court of Appeal Rules) Directions SI 13-10, for Orders that: - a. An Order doeth issue staying the execution of the Decree in Civil Suit No. 188 of 2015: Hadadi Mohamed Rajab and 5 Others versus determination of Civil Appeal No. 11 of 2020 pending before this honorable Court. - *b. The Costs of this application should be provided for.* - [2] The application is premised on the grounds that: - a. Special Circumstances exist warranting the grant of an Order for *Stay of execution by this Honourable Court.*

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- b. 'l'he Applicanls ./iled an Appeal against the Judgment and Decree of the I ligh court in Civil suit No. I ⁸⁸tl ²⁰¹5 , I ladadi Mohamed Rajab ond 5 others ys Muzamil Mohamed Rajab and 2 Others. - c. 'l'he Applicotion has been Jiled without undue delay. - SUCCCSS d. l'he Applicants' appeal, which is pending befbre lhis honouroble Courl .for hearing and determinalion, has a high likelihood of' - e. I'here is a serious threat of execution before the hearing and determinotion of the lpplicants' Appeal, which is pending in this honourable Courl. - .f. T'he tlpplicants sholl sulfer irreparable injury/ substantial loss ifthe order is not granled. - g. l'he Applicants' lppeal, which is pending before this honourable Court, shall be rendered nugatory if the order.for Stay of execution is not granted. - h. Refusal lo grant lhe order ./br stoy of execution shall cause more hurdship lhan it may avoid, as the balance of convenience lies with gronl ing t he appl icat ion. - i. l'he Applicant is reudy to furnish securityfor the due performance of lhe decree ofup to Ugx. 5,000,000/, ifso orclered by this honourable Courl. - j. Il is jusl and equilable thot the execution of the Decree in Civil Suit No. 188 o/ 2015 shall be stayed pending determination of the Applicants' appeal pending before this honourable courl - [3] The application was opposed by the respondent through the affidavit of HADADI MOHAMED RAJAB, averring that the application is an abuse of the Court process and devoid of merit, thus ought to be dismissed with costs. - [4] In rejoinder, MANSUR MOHAMED RAJAB averred that the affidavit in rejoinder is full of falsehood and does not respond to the applicants' contention. I-Ie further avered that the Applicants have not been in contempt, but rather they filed the inventory and account on 15th October, 2019.

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#### Representation

[5] At the hearing of the application, Mr. Peneto Kania and Ms. Noel Chandiru represented the Applicants. 'l'he applicants were in Court. Mr. Mugenyi Abdul Nasser represented the respondents. l'he l't, 4th and 5th respondents were in Court. The parties filed submissions.

#### Brief facts. 10

[6]The Applicants were holders of Letters of Administration to the estate of the late Mohamed Rajab, their late father. Before his untimely demise, the late Mohamed Rajab had three wives. In accordance with thc customs pertaining to his faith and culture, the late Mohamed Rajab gave each wife a home in which she lived with her children. Upon thc demise of their late father, the Respondents and their respective mothers sold their homcs and squandered the proceeds over time. The Applicants obtained Letters olAdministration to administer their home for the benefit of thcir siblings on their mother's side. The Respondent then filed Hadadi Mohamed Rajab and 5 Others versus Muzamil Mohamcd Rajab and 2 Others, Civil Suit No.188 of 2015, to revoke the said Letters of Administration and share in the prope(y of the Applicants. The I-Iigh Court found in favour of thc Respondents herein, revoked the Applicants' Lcttcrs of Administration and ordered that the Respondents should benefit lrom the Applicants' homc. The Applicants appealed to this honourable Court to set aside the judgment of thc lower Court. The Respondents havc demarcatcd thc suit land, scnt pcoplc to inspect it, sent police to intimidate thc Applicants into giving vacant possession and have begun the process of obtaining letters are granted, the Respondents will proceed to sell the suit Property to the detriment of the Applicants.

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# ⁵ Submissions bv Counscl for the Apnlicants

- [7 | On whether this application discloses grounds for grant of this application, Counsel cited Itule 42 (1) to the effect that whenever an application may be made either in this Court or in the High Court, it shall be made first in the I-ligh Court. Counsel citcd the decision ol this Court in P. K. Sengendo vs Busulwa, Lawrcnce Court of Appeal Civil Application No. 207 of 2014, whcrc this coufl lound that fior this Court to entertain such an application, the applicant must satisfy thc court that special circumstances exist. These included thc fact that the I Iigh Court had refused to accept jurisdiction, or where therc is a great delay in the disposal of the application at the High Court' where there are othcr spccial and rare circumstances and it is in the intercst ofjusticc to do so. - [8]Counsel submitted that thc Applicants filed Miscellaneous Application No.370 of 2023, sceking a stay of execution, but the same was dismissed. It was argucd that this crcatcs a special warrant for this court's consideration and determination of this application. - [9] Counsel cited Rulc 6(2) of the Rules of this Court to the cffect that where an applicant has filed an appcal according to l{ule 76,then this court can grant a Stay of execution. To support his argumcnt, counsel cited Lawrence Musiitwa Kyazzevs Eunice Busingye S. C. Civil Appeal No.l8 of 1990 and Hon. Theodorc Ssekikubo and 3 Others vs Attorney General and ⁴ Others Supremc Court Civil Application No. 06 of 2013. - [0] On principlcs laid down lor the grant of a stay of execution, counsel citcd Akankwasa Damian vs. Uganda, Const. Appl. Nos.7 and 9 of 2011, and Gashumba Maniraguha vs Sam Nkundiye, Supreme Court Civil Application No.24 of 20t5, where the court held that the applicant must prove the following;

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- ⁵ a) 'l'he application must establish lhal this appaol hus a likelihood of success, or a prima facie case of his right to appeal - b) h must olso be established thot the opplicant u,ill su/fer irreparable damage or that the appeol will be rendered nugalory iJ a stay is not granted. - c) I/'l and 2 ubove have not been established, lhe Court musl consider where the balance ofconvenience lies. - d) 'l'hat the lpplicanl musl also establish lhut lhc application was instituted without delay, " - [11] On the first principle, counsel submitted that the Applicant has proved both that his appeal has a likelihood ofsuccess and that he, prima facie, has a right of appeal. He argued that the Applicant deponed that he filed both a Notice of Appeal and a Memorandum of Appeal. FIe further submitted that the Memorandum of Appeal clearly raises questions that warrant the consideration of this Court. Counsel prayed that this court finds that the appeal has a likelihood of success. - |2) Counsel submitted that if the application is not granted, the applicants would suffer irreparable injury and their appeal shall be rendered nugatory. Counsel cited P. K. Sengendo v. Busulwa Lawrence and Another (supra), where the court found that the applicant must satisly that the grounds exist Ibr the grant of a stay of the application. He furthcr citcd National Enterprise Corporation vs Mukisa Foods, Miscellaneous Application No.7, 1998' where court found that the court can exercise its discretion to grant a stay where it is necessary to preservc the status quo and where it is evident that when the application if not granted and the decretal property is disposed of there is no likelihood of getting it back should the appeal succeed. Counsel cited Francis Hansio Micar vs Nuwa Walakira, Supreme Court of Uganda in Civil Application No.9/90, to thc same cffect.

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- ⁵ [ 3 ] Counscl submitted that it was averred that thc respondents want to sell thc suit property, yet that is the property that belonged to the applicant's mothcr alter the death of their father. Counscl argued that because of the sentiments attached to the property, they would suflfer irreparable loss if the application were not granted. - 10 tl4l Counsel submitted that the balancc of convenience was in favour of the applicants. It was argued that the suit land is the home of the Applicants and their childrcn. It is the home given to their mother to raise them. Counsel argucd that the Respondents werc givcn their land, they sold it and squandcred the proceeds. The Applicants should not be forced to sell their homc bccause the Respondents, adults, are broke. 15 - [5] Counsel submitted that the application was filed immediately after the first application at the I-ligh Court was dismissed. Flence, this was filed within a rcasonable time. Counsel prayed that this application be granted.

# Submissions by Counscl for the Rcsrrondent

- I16l Counsel for the respondent submitted that the Applicants are acting rn contempt ofthe decree andjudgment of the High Court. Counsel argued that thc Applicants continue to deal with the estate of the late Mohamed Rajab, such as construction, cattle rearing and renting out of the estate properties. Counscl submitted that the application at the lower court was dismissed because the court found that the estate of the deceased could not just lie in limbo. - [ 7] Counsel submitted that since todging the said Appeal in this I lonourablc Court vide Civil Appeal No.20 of 2020, on 23rd January,2020, thc Applicants have never taken a step to prosecute the same.

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- I I 8] Counsel submitted that thc trial Court revoked the letters of administration granted to the applicants and the same is un-administered and if no administrators are appointed, the same shall be put to waste. Counsel argued that the Respondents sought intervention of the law enforcement authorities due to thc contemptuous conduct ofthe applicant. - [ 9] Counsel submittcd that if this I-lonourable Court is inclined to grant the said orders, the applicants are duty-bound to fumish security for costs for the due performance of thc decree in Civil Suit No. 188 of 2015. - [20] Regarding the grant of this application, counsel was alive to the principles laid down in Rule 6(2) of the Rules of this Court. Counsel states the principles were stipulated in Hon Theodore Ssekikubo & 03 Ors vs Attorney Gcneral & 4 Ors. (supra). - l2ll Counsel submitted that the applicants have not demonstrated that the appeal has a likclihood of success. To support his argument, counscl cited Lubega Moses vs Nassimbwa Sylvia, Civil Application No 122 of 2024, where the court statcd that considering the law under rule 6(2), the institution of an appeal does not opcrate as a stay of execution. He argued that the applicant must adduce evidence to satisfy this court that there is a need to grant a stay of execution. Counscl argued that the appeal has no merit and was lodged in bad faith with thc intention to delay the respondents from enjoying the lruits of thcir judgment, since the evidence was properly evaluated by the Court. - [22) On irreparable loss, counsel submitted that the applicants have not demonstrated that they would suffer irreparable loss. Counsel cited Haruna Sentongo vs I&m Bank Ltd (formcrly) Orient Bank Civil Application No ll3 of 2023, where courl found that where the value of the property in question can be ascertaincd and the same can be compensated in monetary

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⁵ terms, should the appeal succeed, the applicant cannot be said to suffer irreparable damages. Counsel argued that in this case, the applicant has not demonstrated how they would sufler irreparable damages.

- [23) On balance ofconvcnience, counsel argued that it tilts in favour ofthe Respondents sincc the judgmcnt in Civil Suit No.188 of 2015 was entered in favour o[ thc I{cspondents and the letters of administration which were grantcd to the applicants were revoked. Counsel argued that the estate is now un-administcred and if no administrators are appointed, the same shall be put to wastc and the respondents shall be prejudiced and inconvenienced. - l24l Counscl submitted that the applicants have failed to satisl) the requircmcnts for thc grant ofa stay ofexccution as sought in this application. Counsel prayed that this application be dismissed with costs to the rcspondents.

#### Rejoinder

- 125) 'l'hc Applicants reiterated thcir earlier submissions. Counsel argued that the respondent's contention that the applicant will not suffer irreparable damagcs is not true. Counsel argued that the cases relied on by counsel for thc respondent are distinguishablc in that in those cases, the loss complained about was in monetary terms, which was quantifiable. He contended that in the current case, the loss is in dispossession of property, which should not be construcd to be part of the estate of their deceased father, from whom the Respondents are benefi ciarics. 20 25 - [26) Rcgarding failing to prosecutc the appeal, counsel submitted that when thc mattcr was filed, thc country went into lockdown. He argued further that the applicant cannot be blamed lor failure to prosecute the appeal since it is the Court's busincss to fix the matters and not for the applicants.

127) Regarding security for costs, counsel for Applicants submitted that the applicants have deposited security for costs in this Court of Ugx 200'000/- (Two hundred thousand), which fee is mandatory before lodging any appeal in the Court of Appeal.

#### Consideration of the Court. 10

[28] The jurisdiction of this Court to grant a stay of execution is set out in Rule 6(2)(b) of the Rules of this Court, which provides that;

#### "Rule 6, Suspension of sentence and slay of execulion

2)Subject to subrule (1) of this rule, lhe institution ofan appeal shall not operate to suspend any senlence or lo stoy execution, bul lhe court mly --

(b)ln any civil proceedings, where a notice of appeal has been lodged by rule 76 of these Rules, order a slay of execution, an injunction, or a stay ofproceedings on such terms as the courl may thinkjusl.

# [29] In Hon. Theodore Ssekikubo & Others vs. The Attorney General

and 4 others (supra), the Supreme Court laid down the principles to guide the Court in granting a stay ofexecution. It held that;

> "(1) T'he application must eslablish lhat his appeal has rt likelihood of success, or a prima .facie case of his right to appeal.

> (2) lt must also be established that the Applicant will suffer irreparable damage or thdt lhe appeal will be rendered nugatory ifa stay is not granled.

(3) If I and 2 above have nol been established, the Court musl consider where lhe balonce of convenience lies.

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## (4) l'hat the Applicant musl also establish that the application was instituled without delay. "

- [30] The purpose of the grant of stay of execution is to help preserve the status quo until the merits ofthe appeal are handled by the full bench. This court has the task of establishing whether the applicant has made out the conditions for the grant of a stay of execution. - [3 1] Regarding the likelihood of success of the appeal, this court will look at the Memorandum of the Appeal. At this point, the Court is not interested in the merits of the case per se. The grounds in the Memorandum of Appeal are that; - l. T'he learned trial Judge erred in law and fact when she held that IICCS No. 188 of2015 was not barred by seclion 20 of the Limitcttion Act. - 2. l'he triol Judge erred in lav, and Jact in determining the properties lhot constilute lhe estate of the late Mohammed Rajab and which beneJiciaries are entitled lo beneJil ./iom them. - 3. I'he trial Judge erred in law ond fact when she failed to appreciote lhat the respondenls u'erc managing their re.rpective pr('perties since lhe death of Mohamed Rajob and subsequently sold them olf and hove no interesl in the remaining properties. - 4. I'he triol Judge erred in law andfoct when theyfailecl to properly evoluate lhe evidence, lhereby coming to ab erroneous conclusion. - l32l According to the Memorandum of Appeal, the applicants have raised triable issues conceming the fact that the original suit was time-barred. It is therefore my opinion that the appeal is not vexatious. 30 - [33] On whether the applicants would suffer irreparable damages if the execution is not stayed, the Applicant averred that they would suffer

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⁵ irreparable [oss. In Amos Nzeyi vs Mena Tewahadc, Court of Appcal Civil Application no.544 of 2024,, whcrc this Court cited with approval thc Fligh Court decision of Tropical Commodities Supplies Ltd and othcrs versus International Credit Bank Ltd (in Liquidation) (2004)2 Fl,A 331' his I-ordship, Llonourable Ogoola obscrvcd:

> "Substantiol loss, though, cannol meon the ordinary los.r to which the veryjudgment deblor is necessarily subjected when he or she loses his or her case and is deprived of his or her property in consequence. 'l'he applicant must eslablish other factors that show lhal lhe execution will creale a slate of affairs that will irreporably affecl or negate the very essenlial core of the applicant's case, as the successful parties in thc appeal. I'he loss ought lo be of o nalure which cannol be undone once inJlicted. "

l34l The Applicant averred that in keeping with both their cultural values and the Muslim faith, when their father died, each wife maintained the homes they were given and the children of those particular wives. 'l'he applicants averred that the respondents sold the homes given to their mother and, as such, do not have a share ofthe suit land. Some of the applicants stay on the suit land and if execution is effected, they would be rendered homeless. Considering the above evidence, I find that the applicants havc demonstrated that they would suffer irreparable loss.

[35] Since some of the applicants stay on the suit land, the balance of convenience tilts towards the Applicants.

[36] According to the record, this second application was made within ^a reasonable time.

t37l I find that this application has merit. It is hereby granted.

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## **Decision**

The application is accordingly granted, with costs in the cause.

#### I so order.

Dated, signed and delivered at Kampala this .................................... 2025.

# **C. GASHIRABAKE**

## **JUSTICE OF APPEAL**

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