[2024] UGHC 692

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MPIGI

# MISCELLANEOUS APPLICATION NO. 45 OF 2024

# (Arising from High Court Civil Appeal No. 31 of 2019)

# (Arising from Civil Suit No. 04 of 2016)

1. NTUMWA ADRIAN

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2. NAMUJJU VICTORIA....................................

**VERSUS**

SAJJABI ANUR....................................

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# BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

## Ruling

The applicant brought the instant application by way of Notice of Motion under Order 43 Rules 4(4) and 5 and Order 22 Rules 20 (1) and 23 of the Civil Procedure Rules, Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act against the respondent seeking orders that:

- a. An order issues staying the execution of the judgment and decree in Civil Appeal No. 31 of 2019 by the respondent, pending the hearing and final determination of the appeal. - b. Costs of this application be provided for.

The application is supported by an affidavit sworn by the $1^st$ applicant and the grounds briefly are as follows:

- $i.$ That the respondent was the successful party in the appeal before the High Court in Civil Appeal No. 31 of 2019 where it was inter alia declared that the respondent was not a trespasser on the suit land and court awarded him compensation of UGX 15,000,000/ $=$ , general damages of UGX 10,000,000/ $=$ and costs of the appeal. - That being dissatisfied with the decision of the High Court sitting as an ii. appellate Court, the applicants on the 2^nd day of November, 2022 filed a Notice of Appeal to the Court of Appeal (Civil Appeal No. 49 of 2022) against the decision. - iii. That in the event that execution of the judgment and decree vide Civil Appeal No. 31 of 2019 is not stayed, the above said appeal and the main

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application for stay of execution will be rendered nugatory and/or stand defeated.

- iv. That the intended appeal to the Court of Appeal has very high chances of success as it involves substantial questions of law and shall be rendered nugatory if a stay of execution is not granted. - That there is an imminent threat of execution of the decree in Civil $v.$ Appeal No. 31 of 2019 vide Execution Application No. 3 of 2024. - That the applicant is ready and willing to provide security for the due vi. performance of the decree upon such terms as may be determined by this Honourable court. - vii. That it is therefore just and equitable in the circumstances to grant an order for stay of execution pending the determination of the applicant's appeal.

The application was opposed by the respondent through his affidavit in reply where he stated inter alia; 15

- 1. That I am informed by my lawyers that the affidavit in support of the application is incurably defective for lack of authority from the $2^{nd}$ applicant to swear an affidavit on her behalf and the 1^st applicant's affidavit together with the application should be struck out with costs for offending the Civil Procedure Rules. - 2. That I state that the applicants previously filed Miscellaneous Application No. 215 of 2022 for stay of execution and the same was dismissed with costs for their non-appearance and the instant application has not only been filed in bad faith but also as a delaying tactic. - 3. That in reply to paragraphs 7, 8 and 13 of the application, I state that the applicants filed a letter requesting for proceedings and a notice of appeal on the 2^nd November, 2022 and to date they had not taken any step to process the record as trick to form a basis for stay and delay of the execution process. - 4. That in specific reply to paragraph 9, 10 and 11 of the affidavit in support of the application, I state that this honourable court has not issued or ordered any execution which renders this application premature and misconceived. - 5. That in specific reply to paragraph 14 of the affidavit in support of the application, I am informed by my lawyers that there are ascertainable taxed costs, decretal sums all totaling to UGX 40,306,700/ $=$ which the applicants have not deposited in court as security for due performance of the decree. - 6. That in reply to paragraph 15, I state that it is in the interest of justice that this application is dismissed with costs.

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7. That I further state that there is no appeal or intended appeal against the orders arising out of Miscellaneous Application No. 215 of 2022 and the intended execution is not affected by this application.

The 1^st applicant swore an affidavit in rejoinder and stated thus;

1. That paragraph 3 of the affidavit in reply of Mr. Anuar Sajjabi is false and misleading because the deponent of the affidavit in support of the Notice of Motion did not claim to have sworn the affidavit in support of the Notice of Motion on behalf of the $2^{nd}$ Applicant but merely mentioned that he was a co-applicant.

- 2. That the $1^{st}$ applicant shall in specific rejoinder to paragraph 4(c) state that the respondent filed Miscellaneous Application No. 215 of 2022, seeking to stay execution of a decree in E. M. A No. 29 of 2022 in High Court Civil Appeal No. 31 of 2019, which was filed before taxation of the bill of costs. - 3. That Miscellaneous Application No. 215 of 2022 was erroneously dismissed because no hearing notice was served onto the applicants who had been following up the application but were consistently informed that the file was missing. - 4. That in rejoinder to paragraph 4 (d) of the affidavit in reply, the current application has been filed in good faith since the respondent has now filed an application for execution of the decree (E. M. A No.3 of 2024) and Notice to show Cause why Execution should not issue in High Court Civil Appeal No. 31 of 2019. - 5. In further rejoinder to paragraph 4 (d) of the affidavit in reply of Mr. Anuar Sajjabi, the 1^st applicant contends that the duty to deliver a typed record of proceedings and certified copy of the judgment rests with the court and the same were only recently issued to the applicants by the High Court Mpigi. - 6. That in further rejoinder to paragraph 4 (d), (e) and (h) of the affidavit in reply of Mr. Anuar Sajjabi the 1^st applicant shall contend that taxing a bill of costs, filing a notice to show cause why execution should not issue and filing an application to execute are sufficient threats to warrant the applicant's application for stay of execution and as soon as the applicants were availed with the certified copies of the judgment and record of proceedings, they filed Civil Appeal No. 444 of 2024 in the court of appeal. - 7. That in specific rejoinder to paragraph $4(h)$ of the affidavit in reply to Mr. Anuar Sajjabi the total ascertained taxed costs, and decretal sums totaling to UGX 40.306,700/ $=$ does not originate from Miscellaneous Application No. 215 of 2022 as deliberately misrepresented by the respondent. - 8. That this application for stay of execution has been made without unreasonable delay.

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## Representation:

Mr. Frank S. together with Mr. Solomon Sebowa appeared for the applicants while Mr. N. Akampurira appeared for the respondents. Both parties filed written submissions.

#### Preliminary objection: $5$

Counsel for the respondent raised a preliminary objection to the effect that the application was accompanied by an affidavit of the 1st applicant without the authority of the $2^{nd}$ applicant to make the affidavit in support on her behalf which warrants the dismissal of the application. Counsel quoted Order 1 Rule 12(1) of the Civil Procedure Rules which provides that one or more plaintiffs/defendants may be authorized by any other to appear, plead or act in any proceeding. Rule 12(2) provides that the authority to appear, plead or act shall be in writing and shall be filed in the case.

Counsel relied on the cases of Kaheru Yasin & Another v. Zinomurumi David, M. A No. 82 of 2071, Taremwa Kamishani & Others v. Attorney General, M. A No. 38 of 15 2012 and Kaingana v. Dabo Boubon [1986] HCB 59, where it was held that; an affidavit which is deponed on behalf of another without authority to do so as required under Order1 Rule 12(1) is incurably defective and liable to be struck out. Counsel added that there are two applicants in the instant case and there is only one affidavit in support of the application deponed by the 1^st applicant 20 without the written authority of the $2^{nd}$ applicant to depone the said affidavit on her behalf. As such this court should dismiss the application for want of authorization.

Counsel for the applicants in rejoinder submitted that the $1^st$ applicant never indicated in his affidavit in support of the application that he was making it on 25 behalf of the 2^nd applicant but rather that he was making it as a co-applicant. As such there was no need for written authority from the $2^{nd}$ applicant.

Counsel further submitted that there is no legal requirement that all applicants must file affidavits and relied on the case of Samuel Kabagambe Ntungwa & 2 Others v. Florence Kekibuga, Miscellaneous Application No. 110 of 2022, where it was held that;

"Where there is more than one party to an application, there is no requirement that all must swear affidavits in support of the application or give written authority... a party to a suit does not require authority to depone an affidavit in support of a suit as long as it is not done on behalf of others who have not authorized him to do so.":See: Esemu Nicholas & Another v. Mwitanirwa Charles, HCMA No. 952 of 2020).

Counsel concluded that what is admitted is that the facts deponded by the 1^st applicant were known to both applicants as such one affidavit is sufficient and such deponent need not get authority from the other applicant unless it is categorically stated that the affidavit is being sworn on behalf of the other applicant.

I have carefully considered the submissions of both parties and the authorities cited therein in resolving the preliminary objection as here under.

A preliminary point of law can be raised at any time either orally or by application. In the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd, $[1996)$ 1 E. A 696, it was held that:

"A preliminary objection is in the nature of what used to be called a demurer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial

discretion." 15

> The respondent in the instant case implored court to dismiss the application for lack of authority from the $2^{nd}$ applicant to the 1^st applicant to swear the affidavit in support of the application on her behalf. However, as rightly submitted for the applicants the 1^st applicant swore the affidavit as a co-applicant and not on behalf of the $2^{nd}$ applicant. The 1^st applicant indicated in his affidavit that he was conversant with the facts of the case and went ahead to swear the same in support

> of the Notice of Motion. In the case of Bank One Limited v. Simbamanyo Estates Limited, Miscellaneous

> Application No. 645 of 2020, it was inter alia held that;

"... Therefore, when the relevant facts are within the common knowledge of parties having the same interest in the litigation, an affidavit by one of them will suffice..."

I accordingly find that the affidavit as sworn by the $1^{st}$ applicant was done so as a co-applicant and nowhere in the said affidavit did he mention that he was swearing it also on behalf of the 2^nd applicant. As such there was no need for authorization by the $2^{nd}$ applicant.

This preliminary objection is hereby overruled. I therefore will proceed with the merits of the application.

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Issues:

- 1. Whether this application discloses grounds for the grant of an order for a stay of execution? - 2. What other remedies are available to the parties in the circumstances?

#### Resolution: $5$

Issue 1: Whether this application discloses grounds for the grant of an order for a stay of execution?

Order 43 Rule 4 (3) of the Civil Procedure Rules provides for the grounds of stay of execution which must be satisfied by the applicant before court grants the application and these are;

- a. That substantial loss may result to the party applying for stay of execution unless the order is made. - b. That the application has been made without any reasonable delay. - c. That security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him/her.

Counsel for the applicants in addition to the law under which the application is brought under cited the case of Lawrence Musiitwa Kyazze v. Eunice Busingye, SCCA No. 18 of 1990 which laid down the considerations for an application of this nature to be granted and the grounds are as follows;

- 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. - c. That the application has been made without unreasonable delay. - d. That the applicant has given security for the due performance of the decree or order as may ultimately be binding upon him.

Counsel for the respondent additionally cited the case of **Kyambogo University v.** Prof. Isaiah Omolo Ndiege, C. A No. 341 of 2013 where other grounds for the grant of applications for stay of execution were given as follows;

- 1. There is a serious or eminent threat of execution of the decree or order and if the application is not granted, the appeal would be rendered nugatory. - 2. That the application is not frivolous and has a likelihood of success. - 3. That the refusal to grant the stay would inflict more hardship than it would avoid.

In the same case it was held that;

"In my view the law recognizes that not all orders or decrees appealed from have to be stayed pending appeal, it also recognizes a fact that an appeal may be determined without the court having to grant a stay of execution. However, court may stay execution where the circumstances of the case justify such a stay. It is therefore incumbent upon the applicant in every application of stay of execution to satisfy court that grounds exist for grant of a stay of execution. The assumption that once a party has filed an appeal a stay of execution must follow as a matter of course has no legal basis."

# Whether the applicant has filed a Notice of Appeal?

Counsel for the applicants submitted that the applicants in this case have not only 10 filed a Notice of Appeal but have filed a substantive appeal to the court of appeal. Counsel also relied on the case of Attorney General of the Republic of Uganda v. The East African Law Society and Another, EACJ Application No 1 of 2013 which was cited with approval in the case of Equity Bank (U) Ltd V. Nicholas Were, Miscellaneous Application No. 604 of 2013, where it was held that; 15

> "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."

Counsel for the respondent on the other hand submitted that the applicants only allude to the fact that they filed a notice of appeal and also filed a substantial appeal 20 in court but do not show proof that they filed a memorandum of appeal supporting their appeal. To show court that there is indeed a substantial appeal with a probability of success. Counsel relied on the case of Formula Feeds Limited & 3 Others v. KCB Bank Limited, HCMA No. 1647 of 2022 where it was stated that;

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"The applicants have not provided court with the memorandum of appeal" of the pending appeal to the Supreme Court. It is only in the motion and during submissions for this application that counsel for the applicant has diverted to the arguments they intend to raise on appeal...it is therefore not possible to assess whether they have an arguable case on appeal ... I have formed an opinion that it is not possible on the material before me to determine whether there will be an arguable case on appeal... I have formed an opinion that is not possible on the material before me to determine whether or not there is a reasonable basis in law or equity to support the grounds intended to be raised and that they can be supported by good faith argument. It is therefore not possible to determine that the appellate court could reasonably arrive at a different conclusion...the applicants have failed to prove this requirement." Counsel for the applicants in rejoinder submitted that in the case of Lawrence Musiitwa Kyazze v. Eunice Busingye (Supra), the supreme court does not make it mandatory that there should be a memorandum of appeal filed to determine if the appeal is meritorious. Be that as it may, that the applicants filed Court of Appeal

Civil Appeal No. 444 of 2024 and the same contains a memorandum of appeal. $\mathsf{S}$

It is my finding that the respondent does not dispute the fact that the applicants filed the Notice of appeal and in the cases of Lawrence Musiitwa Kyazze v. Eunice Busingye (Supra), and Kyambogo University v. Prof. Isaiah Omolo Ndiege (supra) as outlined above laying out the considerations before applications of this nature

can be granted by court, what is required to be filed is a Notice of Appeal and not 10 a memorandum of appeal. Nor is the same provided for under the law on stay of execution. As such I find that the applicants have satisfied this condition.

That substantial loss may result to the applicant unless a stay of execution is granted:

- Counsel for the applicants submitted that under paragraph 10 of the 1^st applicant's 15 affidavit in support of the application he averred that the respondent misrepresented to court the size of his kibanja to be 1.5 acres which is not only a deliberate falsehood but also misinformation intended to deceive because the size of the respondent's alleged kibanja was not ascertained throughout the appeal and - trial court hearing. And under paragraph 11 of the applicant's affidavit in support 20 of the application, it is contended that any execution without ascertaining the size of the kibanja will result in irregular execution.

Further, that the respondent has taxed a bill of UGX 40,306,700/ $=$ and already filed an application for execution. The applicants are likely to lose such a colossal sum of money if this court does not issue a stay of execution pending appeal.

Counsel for the respondent on the other hand submitted that the applicants state that they will suffer substantial loss if the application is not granted but they failed to adduce evidence to that effect. Counsel added that the Miscellaneous application in question as averred by the respondent under paragraph $4(h)$ of his affidavit in

reply, he states that there is no appeal arising out of miscellaneous Application No. 30 215 of 2022 and the intended stay of execution is not affected by this application.

Further, that it is on record that Miscellaneous Application No. 215 of 2022 was dismissed for non-appearance of the applicants and the bill was taxed at UGX $2,706,200/$ = in execution application No. 4 of 2024. Counsel prayed that court

orders execution of Miscellaneous Application No. 215 of 2022 so that the 35 respondent can enjoy the fruits of his litigation.

Counsel for the applicants in rejoinder cited the case of Tropical Commodities Supplies Ltd and Others v. International Credit Bank Ltd (in liquidation) [2004] 12 E. A 331, where it was held that; substantial loss does not represent any particular size or amount but refers to any loss, great or small that is of real worth or value as distinguished from a loss that is merely normal.

In the instant case the parties agree that there is a taxed bill of costs at UGX $40,306,700/$ = which the respondents seek to execute. Secondly, that the size of the size of the suit property has never been determined. The applicants contend that if this application is not granted the applicants are likely to suffer a substantial

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loss. In the case of Eriab Kabigizza v. Lawrence Sserwanja (1975) H. C. B 199, it was held that;

"The main criterion for staying execution should be whether the judgment" debtor would suffer substantial loss if the decree was executed notwithstanding that the decree might subsequently be set aside."

In the case of Formula Feeds Limited & 3 Others v. KCB Bank Limited (Supra), it 15 was stated that;

> "The applicant must establish other factors which show that the execution" will create a state of affairs that will 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.

> The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his or her appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his or her judgment. (See: Alice Wambui Nganga v. John Ngure Kahoro and Another, ELC Case No. 482 of 2017 (at Thika); [2021] eKLR)".

It is my considered view that the applicants in the instant case are liable to suffer substantial loss if the respondent goes ahead with the execution pending the determination of the appeal. The applicants have therefore satisfied this condition.

The application was made without unreasonable delay: 30

It was submitted for the applicants that the application was made without unreasonable delay. That judgment in High Court Civil Appeal No. 31 of 2019 was issued on the 31^st October, 2022 and on the same day the applicants applied for a certified record of proceedings and judgment. The applicants being dissatisfied with the decision of the High Court, on the 2^nd day of November, 2022 filed a Notice of appeal against the said decision. That however, further proceedings

required the delivery of the record of proceedings and judgment to enable the applicants to file an appeal on which the application for stay of execution hinges. And in the instant case the application for stay of execution was made as soon as possible. That the applicants only received the certified copies of the record of proceedings in May 2024. Counsel relied on the case of Ujagar Singh v. Runda Coffee Estates Ltd, [1966] E. A 263, where it was held that:

"...it is only fair that an intended appellant who has filed a notice of appeal should be able to apply for a stay of execution... as soon as possible and not have to wait until he has lodged his appeal to do so. Owing to the long way in obtaining the proceedings of the High Court it may be many months before he could lodge his appeal. In the meantime, the execution of the decision of the court below could cause him irreparable costs."

Counsel for the respondent on the other hand submitted that the reckoning of time to determine whether the application was made within a reasonable time begins at

- the time the decree is sealed and becomes enforceable. (See: Formula Feeds Limited 15 & 3 Others v. KCB Bank Limited (Supra). Counsel added that the applicant did not exercise reasonable diligence in pursuing this matter in court and equity aids the vigilant. That since November, 2022 there have been a series of intervening appeals and applications which would have explained the reason for the delay to bring the instant application reckoned from the dates of the judgment and the 20 - decree. That the applicants in this case have not explained why they delayed to bring this application in court.

In rejoinder, counsel for the applicants reiterated his earlier submissions and added that the court in the case of Ujagar Singh v. Runda Coffee Estates, (Supra), court took judicial notice of delay experienced by litigants trying to appeal. That 25 in the instant case it is on record that the record of proceedings was delivered in April 2014.

It is my considered view that whereas the respondent argues that the application was not brought without unreasonable delay, the application for execution by the respondent was filed on 6^th February, 2024 and served on the applicants on the 30 27^th February, 2024. And the instant application was filed on the 29^th February, 2024. I take cognizance of the submissions on the process of obtaining the certified typed copy of proceedings when one intends to appeal and how it can sometimes cause delay and the authority cited in that regard.

However, in the instant case I find that the applicants did not delay at all to file the 35 instant application. There was no imminent threat being faced by the applicants before the application for execution was filed. As such the applicants also satisfied this condition.

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That the applicant has given security for the due performance of the decree or order as may ultimately be binding upon him:

Counsel cited the case of Imperial Royale Hotel Ltd & 2 Others v. Ochan Daniel, Miscellaneous Application No. 3 of 2012, where the court was of the similar view as held in the case of Kawalya v. Namyalo & Another, Miscellaneous Application No. 12 of 2017, where it was held that;

## "The depositing of security for costs is not a condition precedent to the grant of stay of execution."

- Counsel submitted that whether or not the applicants should abide by this condition is at the discretion of court which can be exercised upon viewing the 10 circumstances of each case. (See: Ntoroko Local District Government v. Babiiha Christopher, Miscellaneous Application No. 101 of 2022). Counsel prayed that this court deems it fit and order that costs lie in the appeal. - Counsel for the respondent on the other hand submitted that according to paragraph 4(f) of the affidavit in reply of the respondent's affidavit in reply, he 15 avers that there are ascertained taxed costs of UGX 40,306,700/ $=$ which the applicants have not deposited in court as security for due performance of the decree. That the purpose of the security for due performance is to ensure that the respondent is protected for the costs incurred for responding to the appeal and defending the proceeding. In the case of Blue Jay Investments Ltd & Another v. 20 Jacob Muuo Mwangagi & Another, HCCA No. 71 of 2022 court quoted the case of Khalsa Schools & 2 Others v. Samuel Odhiambo Otieno [2021] eKLR, in which it

was stated that:

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"... security for the due performance of the decree ought to be given in a way that is least disadvantageous to the party giving security and may in many forms include a bank guarantee. What is important is it must be binding and adequate."

Further, in the case of Jamil Bora Bank Limited & Another v. Samuel Wambugu Ndirangu, H. C. C. A No. 30 of 2021, court relied on the case of Gianfranco Manenthi & Another v. Africa Merchant Assurance Co. Ltd [2019] Eklr, where court observed that;

> "The applicant must show and meet the condition of payment of security" for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of a lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under the Civil Procedure Rules, it is trite

that the winner of the litigation should not be denied the opportunity to execute the fruits of his judgment in case the appeal fails.

Further, the rules should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if that appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree.

The court would order for the release of the deposited decretal amount to the respondent in the appeal...

Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of the decree is not a matter of willingness by the applicant but for the court to determine."

Counsel for the respondent concluded that since there is already a taxed bill of UGX 40, 306, $700/$ = which monies are owed and due to the respondent, the applicant can be ordered to deposit the same before this application is granted and 20 to prevent the respondent from defending a frivolous and vexatious appeal.

In rejoinder, it was submitted that the applicants are ready and willing to provide security for the due performance of the decree upon such terms as may be determined by this court.

The court may consider while exercising its discretion to order for security for 25 costs are whether the applicant is being put to undue expenses by defending a frivolous and vexatious suit as was the claim by the respondent in the instant case.

It is my considered view that a deposit of security for costs is a requirement under the provisions of Order 43 Rule 4(3) of the Civil Procedure Rules in an application

for stay of execution. However, it is not a condition precedent that one has to 30 deposit the security for costs before filing the application but it is upon court's discretion upon finding as to whether the security for costs should be deposited or not.

In the instant case the applicants have stated that they are willing and ready to provide the security for costs as court determines. In the circumstances this court 35

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orders that the applicants deposit UGX 10,000,000/= (Ten Million Ugandan Shillings) as security for costs.

Issue 2: What other remedies are available to the parties in the circumstances?

Counsel for the applicants prayed that this court awards costs to the applicants following the provisions of Section 27 of the Civil Procedure Act. I find no $\mathsf{S}$ justification to make an award of costs in the instant application. As such I make no order as to costs.

The application is hereby allowed in part in the following terms;

- a. The applicants are ordered to deposit UGX $10,000,000/$ = (Ten Million Ugandan Shillings) as security for costs within 15 days from the date of delivery of this ruling. - b. Should the applicants fail to abide with (a) above, the application will be accordingly dismissed with costs. - c. Each party bears their own costs of this application.

I so order. 15

Right of appeal explained.


OYUKO ANTHONY OJOK

$24/6/2024$ 20

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