[2013] UGCA 2053

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

THE REPUBLIC OF UGANDA

$\mathbf{L} \oplus \mathbf{L} \oplus \mathbf{L}$

canious acs. Inconven

**CIVIL APPLICATION NO. 207 OF 2014**

P. K SENGENDO....................................

**VERSUS**

1. BUSULWA LAWRENCE

國形

2. MALE ABDU.................................... .. RESPONDENTS

CORAM: HON. MR. JUSTICE KENNETH KAKURU, JA *(Single Justice)*

## RULING OF THE COURT

This is an application brought by way of notice motion under S.33 of the Judicature Act, Rules 5(2), 42, 44 of the Rules of this Court. The applicant seeks the following orders.

An order for stay of execution of the Judgment and $(i)$ orders by way of preserving the status quo in respect of the suit land and recovery of taxed costs in High Court Civil Appeal No. 002/2005 arising out of Mpigi Chief Magistrate's Civil Suit No. 029/2001 be issued by this Honourable Court pending disposal of the appeal by the Appellant/Applicant.

## Costs of this application be provided for. $(ii)$

The applicant lost an appeal at the High Court which set aside the Judgment and decree of the Chief Magistrate's Court that had been in his favour.

Being dissatisfied with the decision of the High Court dated 25^th $\mathsf{S}$ September 2013, the applicant filed a notice of appeal, which was lodged in this court on 10^th October 2013 the same having been filed at the High Court on $8^{\text{th}}$ October 2013.

The grounds for the application are set out in the notice of motion but briefly there are as follows;-

$\theta$

- 1) That the applicant lodged $a$ notice of appeal in this Court and has also applied for a certified copy of the High Court record. - 2) That there is a imminent threat of the execution of the decree in High Court Civil Appeal No. 002 of 2005 the subject of this appeal. - 3) That the appeal herein shall be rendered nugatory unless this application is granted.

The application is accompanied by the affidavit of the applicant. That affidavit states that the filing of the appeal is still pending and awaits the certification of the record of proceedings in the High $\mathfrak{C}$ ourt. That the respondent's bill of costs has since been taxed and allowed at shs. $10,905,000/-$

$\mathcal{L}$

hat the respondent has since applied for execution of the decree to er the costs and that if this execution is not stayed the appeal be rendered nugatory.

respondent in his affidavit in reply contended that, the ant's appeal herein has no likelihood of success. That there appeal pending since the time for filing the appeal has and the applicant has never cared to obtain certified copies e High Court record, which he contends have been ready for while.

ntended that the appeal would not be rendered nugatory by recovery of costs, as the respondent is in occupation of t land.

I

.5

I

hearing this application Mr. Moses Kugumikiriza appeared e applicant while Mr. Max Mutabingwa appeared for the ents.

gumikiriza submitted that he served a letter requesting for d copies of the proceedings in the High Court upon counsel applicant, however, he conceded tl at he did not retain p"roof ce of that letter, as receipt thereof was never acknowledged respondent's Advocates. He also conceded that he had not le to file the appeal as the certified court record had not ailed to him, by the High Court.

mpletion had been intern-rpted by the execution process which d the High Court file to be transferred from the Land sion to the Execution Division. further conceded that the court record was almost ready but its

submitted that the execution of the decree would render the peal nugatory and that it was just and equitable to grant the er sought.

also stated tJ:at tJ:e applicant was willing, given sufficient time court to deposit securit5l for due performance of the decree. He ed from the bar that the applicant did not have tlee money at sent to satisff the decree.

. Mutabingwa opposed the application. He stated that no Icient ground had been established by the applicant to warrant ant of an order of stay of execution. That he had not shown that would suffer substantial loss, or that the appeal would be dered nugatory. He cited the Supreme Court decision in utrence Musitua Kgazze us Eunice Businghge (Supreme Ciail Appeal NO 7a of 1990.) a

submitted that tJle decree was only in respect of the bill of costs. at it was not for recovery of land as at all materials times the spondents were and are still in occupation of the suit land.

o

submitted that as such the applicant cannot suffer any stantial loss, which is tJ:at loss tJ'at cannot be atoned by way amages. of

submitted that this application has not been brought without e delay. That the decision the applicant seeks to'appeal from made in October 2013 and tJlat tJ:is application was filed in May 2Ol4 which period he submitted constituted long delay.

(. o

o

submitted that applicant did not serve the letter requesting proceedings upon the respondent or his counsel and therefore d to take a necessary step in prosecuting his intended appeal. rayed for the dismissal of this application. He He

e listened carefully to the submissions of both counsel and I also perused the court reccird carefully. I

law under which this application is brought, that is section 33 Judicature Act is not applicable in this Court. That section rs to proceedings before the High Court. Rule 5 of the Rules of Court does not have any sub-rule, therefore this application d not have been brought under Rule 5(2). In fact Rule 5 of the s of this Court relates to extension of time. This application is for extension of time. ¹⁵ of

is an indication of laxity on part of counsel for the applicant. Iaxity is manifest throughout these proceedings.

Be ifi at as it may, I will still proceed to determine this application as had been brought under the correct law.

mu wh An en 1n application for stay of execution pending appeal to this court t first be filed in the High Court. It is only when the High Court to grant the stay or where it doubts its jurisdiction or the disposal of such an application in tfre High Court would e substantial delay that an application would be brought first s court.

f

o

For sati lts the oth I this court to entertain such an application, the applicant must court that rendered special circumstances exist. Those stances were set out in the case of Lawrence Musiituta e as Eunice Businghge (Supra). That is where the High refuses to accept jurisdiition, where there is great delay in sposal of the application at the High Court, where there are special and rare circumstances and it is in the interest of ce to do so.

e d p case Rule 42 (ll of the rules of this court clearly stipulates whenever an application maybe made either in this court or e High Court it shall first be made in the High Court. This cation therefore must fail on that ground alone. There is no ce that this application was first made in the High Court and d

ofit e found no special or ra-re circumstances to exist, tJ:at would el this court to hear this application first. Rule 6(2) of the of this court clearly stipulates that the institution of an shall not operate as a stay of execution.

e case of Kgambongo Uniaersitg as Prof. Isaiah Omolo e Cout't, of Appeal Ciail apptication No. 347 oJ 2O73 thrs noted as follows;

> uln mg vieut the laut recognlzes that not a'll orders or decrees appealed from houe to be staged pending appeal. It o,lso recognises a fact thof an appeal mag ..be detertnined. utithout the court hauing to grant a \*ag of execrttion. Howeuer, cour't, mag stag exectttion uhere the circum.stqnces ol the case justifg such a stag. It is therefore lncumhent upon the applicant in eaery crpplication of stag of execution to satistg court that grounds exist for grant oJ a stag of executiott. The as,sumption that once a pat@ has Jiled. an appeal a stag of exeattion m;ust follow as o mqttef of course has no legal basls."

e case of. No;ti6na,l Enterprise Corporation us Mukisq Foods llaneous 'application lVo. 7 1998) this Court held as

"The Court has power in its discretion to grant stag of execution where it appears to be equitable so to do utith a tiew to temporarilg presentlng the status quo.

o

As a general rule the onlg ground for stag of execution is for the applicant to shout that once the decretq.l oroDetttt is disoosed of there is no likelihood of qettinq it back should the appeal succeed.,t

I

I

s particular case, it is conceded by counsel for the applicant the stay of execution sought is in respect of payment ol 10,905,000 being the taxed costs of the suit in the High court.

?

o

e with Mr. Mutabingwa that such an execution would not er the appeal nugatory neither would it cause the applicant tial loss.

Kugumikiriza revealed from tl:e bar that the applicant at nt has no money to satisfy the decree.

^ecase of Teddg Sseezi Cheege as Enos Tumusiim.e Coutt of I F'itil Application No.27 of 1996) this court dealing with situation had this to say.

> "In' his submission in replg to Mr. Kabega's submission, [Wr. Kalanru for the rlppliconts conceded that the applicants do not at present haue ccrsh to pag the decretal sum. That concession is uery reuealing. It indicdtes the tttte reason for this application for stag of execution as impecuniousness. The applicatlon

is thus being used to buy time for the applicants to raise the necessary money. Counsel of both parties conceded that for a stay of execution pending appeal to be ordered, an applicant must show sufficient cause. That is the correct position of law. The contention by Mr. Kakuru of impecuniousness as a ground for a stay of execution is not tenable in our opinion as it does not amount to a sufficient cause for the grant of stay of execution pending appeal.

Further in then Judgment the learned Justices of this Court went on to observe as follows:-

"The Supreme Court of Uganda $_{in}$ Civil Application No.9/90 Francis Hansio Micar vs Nuwa Walakira dealt with the matter now at hand.

In that case, the Court was dealing with a preliminary objection which challenged its jurisdiction to hear application under Rule $5(2)(b)$ of the Rules of that Court. This is what it said regarding stay of execution.

> "There are many cases where High Court may order a stay and one such case maybe to preserve the status quo pending appeal.

$\mathsf{S}$

It would be unwise in some circumstances to defeat a statutory right of appeal by for example demolishing the subject matter of a suit so that the appeal is render nugatory. Again a stay may be necessary when it comes to the notice of any court that an alleged fraud has been practiced upon it affecting its decree or when courts action is in doubt through want of jurisdiction."

The above passage does not sate specifically what amounts to a sufficient cause and statement was apparently stated obiter. But it illustrates the type of circumstances that can be considered amounting to sufficient cause for an order of stay of execution. Such include where the subject matter of a case is in danger of being destroyed, sold or in any way disposed of in such a case a stay is ordered to preserve $\alpha$ 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. Sufficient cause will vary from case to case, but in our view impecuniousness does not amount to sufficient cause

Mr. Kalcttnt further argued, tltat becouse the c;pplicc;nts do not haue cash at present to pag the decreto.l sum, tf a stag of execz:tlon fs not ordered, theg wlll stfler lrraae lnconve.nlence as thclr propertg mag be attached and sold in exectrtTon of the first appllcant mag be sent to ciuil prison. It appears to us that Mr. Kakrttt utas puttlng lnconaenience as a ground Jor an order oJ stag of execution pending appeal. We canraot dgree because in elery exectttion pending appeal We cannot agree becqttse in eaery executTon a Judgment debtor lrnust be inc onue nienced. s omehout.

We agree with Mr. Kabega, counsel for the respondent applicants hute not shoum . s'ttfft.cient cause to Justtfg the grant of an order . of stag of exectttion.,,

I have no reason whatsoever to differ from the above decision. It sets the law and procedure correctly. It has not been shown by tJle applicant how the appeal would be rendered nugatory. It has not been shown how the applicalt would suffer substantial loss if execution in respect of costs is not stayed.

I

The submissions of Mr. Kugumil<iriza in this regard have no merit. 25

Mr. Mutabingwa submitted that the respondent was not served with a copy of the letter requesting for proceedings of the High Court. Mr. Kugumikiriza contended that the latter was served but was not acknowledged.

**Rule 83** of the Rules of this court requires that a party intending to rely on that rule must serve a copy upon the respondent and 'retain proof". In this case Mr. Kugumikiriza concedes that he did not retain proof of service. The applicant therefore failed to comply with Rule 83 $(2)$ and $(3)$ of the Rules of this Court, and as such cannot take advantage of the automatic extension of time provided by that Rule.

$\mathsf{S}$

Compliance with Rule 83 (3) of the Rules of this Court is mandatory.

In the case of John Matsiko vs Banyankore Kweterana Court of Appeal (Civil Application No. 43 of 1198), this court in reference to Rule 82 (3) which is now 83(3) stated as follows:-

> "We find that the provisions of Rule 82 (3) are mandatory. The duty rests on the appellant to serve the respondents and retain proof of service. That requirement is not a mere technicality and counsel for the respondent cannot rely on Article 126 2(e) of the Constitution"

e appeal herein ought to have been filed within 60 days after the e when the notice of appeal was lodged under Rule 83 (1) of the ules of this Court. The notice of appeal was filed on 8fr October 013. Up to date no appeal has been filed in this Court. No plication has 6een made from extension of time.

S find therefore that the time within in which the applicant was quired to have filed the appeal has lapsed and as such no appeal I

s application therefore fails as it has no merit whatever

is dccordingly dismissed with costs. The notice appeal herein is o struck out under Rule 2(2) of the Rules of this Court as it is an se of Court process.

is Ruling disposes of Civil Application No. 208 of 2Ol4 between same parties for an interim order of stay of execution, which is reby dismissed with no order as to costs.

ted at Karnpala this ... O4th ...day of...&ne...2OL4.

o

!,

I

HON. MR. JUSTICE KENNETH I(AKURU JUSTICE OF APPEAL

tL^A .-- Grl+^-. Q-l' {{ /\.4 f-\0t Cg"-.---- \4--e- \ THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA clvtl APPLtcATtoN NO. 341 0F 2013 (Arising out of CivilApplication No. 340 of 2013) BOGO UNIVERSITY = APPLICANT

VERSUS

ROF. ISAIAH OMOLO NDIEGE =============== RESPONDENT

CORAM: HON JUSTICE KENNETH KAKURU, JA

(stNGLE JUSTTCE)

of'

o

{\$

## RULING

his application is brought under Sec'tion 10 of the Judicature Act Cap 13 nd Rules 2(2),6(2),43 (1) and (2) of the Rules of this Court.

he application seeks an order staying execution of High Court order is in

igh Court Miscellaneous Cause No.20 of 2013, pendlng the disposal of he applicants' application for stay of execution pending appeal.

bstantive application for stay of execution before a full bench of this urt. effect it is an applicatit>n for interim order of stay of execution pending a

he grounds upon which the application is brought are set out in the notice f motion which is supported by the affidavit of one SAM S. AKORIMO eponed to on 25ti' October, 2013 which generally repeats the grounds in e notice of motion. Although Mr. Akorimo did not state in which capacity e swore the affidavit which is a fatal defect, i was able to establish that he employed by the applicant as the University Secretary and i allowed the ffidavit to stand under Article 126 (2) (e) of the Constitution.

,p

his application is not an appeal and i do not see any relevancy of bringing t under Section 10 of the Judicature Act.

or clarity, I haVe entertained this application under Section 12 of the udicature Act, and Rule 6 (2) (b) of the Rules of this Court.

e background to this application as far as I could gather from the record before me is as follows:

he applicant, Kyambogo University, is government educational institution t which the respondent, Prof. lsaiah Omolo Ndiege is employed as a Vice hancellor on a contract that comrnenced on 12tt'January 2009. The ntract ends in January 2014.

There were allegations and counter allegations of corruption, abuse of office and mismanagement at the Applicant University. Some of these matters were investigated and others are still under investigation by different bodies including the University Council, the Parliamentary Sectoral Committee on Education, The lnspectorate of Government, the Police and the Auditor General among others.

The applicant seems to have sent the respondent on forced leave on 1Sth September, 2012 tor 6 months, ending 't8tt March 20'1 3. This forced leave it appears was further extended for three months by the applicant. When indefinite forced leave. the three months ended the applicant again sent the respondent on an

o

o

he applicant filed at the High Court Miscellaneous Cause No. 20 of 2013 r Judicial Review, seeking court to quash the decision of the applicant ending him on forced leave and later indefinite leave.

he application for judicial review was heard by His Lordship Hon. Wilson asalu Musene, J, inter parties. The High Court allowed the application nd issued writs of ceftiorari, mandamus and prohibition against the pplicant on 21st October, 2013.

o ,fr\*

o

\lr

n 24tt, October, 2013 the applicant being dissatisfied with the ruling and rders of the High Court filed a notice of appeal in this court. On 25th er 2013 the applicant filed two applications for stay of execution of e High court order; vide Court of Appeal Miscellaneous Application No. and 341 of.2O13. The application before me is a Court of Appeal Miscellaneous Application No. 341 of 2013 as already stated above the pplicant is seeking an interim order stays the execution of orders issued by the High Court in High Court Miscellaneous Cause No.20 of 2013.

I

The respondent in this matter filed an affidavit in reply on 1't November 2012; generally opposing this application on account that there is nothing to stay and the application is for academic and moot purposes only.

At the hearing of this application Mr. Mubiru Kalenge appeared for the applicant and Mr. Akile Sunday ldu Rocks appeared for the respondent. lnitially counsel for the applicant had sought to have this matter heard exparte before the Registrar of this Court. However the practice of this Court now is that all such matters ought to be heard inter parties and where possible by a Single Justice of this Court, which I must say is a good practice.

?

Both learned counsel in this matter in their submissions retaliated what was set out in their iespective pleadings and the annextures thereto and left the rest to Court.

c I have read the pleadings and the annextures thereto. I have also carefully 15 listened to the arguments of both counsel.

llowing the decision of the Supreme Court in Lawrence Musiitwa Kyaze rsus Eunice Busingye CivilApplication No. 18 of 1990, an application of is nature ought to have been made at the High Court first. ln that case the preme Court stated as follows at page 10;

"This court would prefer the High court to deal with the application for a stay on its meits first, before the application is made to the jurisdiction, or refuses jurisdiction for manifestly wrong reasons, or there is great delay, this court may interuene and accept jurisdiction in the interest of justice" {t Supreme Court. However if the High Court refuses to accept the

> is application was decided by the Supreme Court in 1990 before this urt was established. Back then appeals from the High Court went ight to the Supreme Court.

^eabove position of the law is also set out Rule a2 () o'f the Rules of this urt which stipulates is as follows:

a

'42 (1) wherever an application may be made either in the court or in the High CourI it shall be made first in the High Court.

is now settled law that this court and the High Court have concurrent risdiction in this matter. lt appears to me that applications of this nature ould be first filed in the High Court as a general rule, and should only be ed in this court, where exceptional circumstances exist. I have found no ecial bircumstances requiring this application to be fixed in this court first. is application ought to have been filed in the High Cour1.

that as it may, it is trite law that an appeal does not operate as a stay of ecution. lndeed this is what Rule 6 of the Rules of this Court provides;

## 6. Suspension of Sentence and Stay of Execution

b

-o

TA No sentence of death or corporal punishment shall be carried notice of appeal has been given until the appeal has been determined. out until the time for giving notice of appeal has expired or, where (2) (a) in any criminal proceedings, where notice of appeal has been given in accordance with rule 59 or 60 of these Rules, order that the appellant be released on bail or that the execution of any wanant of distress be suspended pending the determination of the appeal; and

(b) in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think jusf'.

o

fitr

learly Rule 6(1) and (2) (b) refers to stay of sentence in Criminal roceedings and is not relevant here. What is relevant is sub rule (2) (b) hich is to effect that;

> "The mstitution of an appeal shall not operate as a stay of execution".

my view the law recognises that not all orders or decrees appealed from ave to be stayed pending appeal. lt also recognises a fact that an appeal ay be determined without the court having to grant a stay of execution

owever, court may stay execution where the circumstances of the case stify such a stay. It is therefore incumbent upon the applicant in every pplication of stay of execution to satisfy court that grounds exist for grant f a stay of execution. The assumption that once a party has filed an ppeal a stay of execution must follow as a matter of course has no legal SIS.

he Supreme Court in Miscellaneous Application no. 7 of 2010; Dr. Ahmed uhammed Ksuule vs. Greenland Bank lnl uidation had this to say;

"For an application in this Court for a stay of execution to succeed the applicant must first show subject to order facts in a given case, that he/she has lodged a notice of appeal in accordance with Rule 72 of Rules of this Court. The other facts which lodgment of the notice of appeal is subject vary from case to case but include the fact that the applicant will suffer ineparable loss if a stay is not granted, that the appellant's appeal has a high likelihood of success".

O

ln the case of Kitende Apollonaries Kalibogha and 2 others vs. Mrs. Eleonora Wismer; (Supreme Court Misellaneous Appliation No. 6 of 2010) Justice Okello, JSC, had this to say;

"l agree with the principle stated by this Court in Hwang Sung lndustrbs Ltd wang Sung lndustries Ltd vs. Tajdin Hussien and 2 others Supreme Courl Miscellaneous A tion No. 19 of regarding grant of an interim order of stay of execution. The applicant must show by evidence that there is a pending substantive application for stay of execution and that there is a serious threat of application for an interim order to issue". 2nnnt execution of the decree before the hearing of the substantive

The history of stay of execution pending appeal can be traced to the English authorities of Cropper versus Smith (1883) CH. DIV 305, Wilson vensus Church 1879 11 Ch. D 576 and Erin-for Properties Ltd vs. Cheshire ⁵ County Council (1974) 2 ALL ER448.

All the above authorities were ably discussed, by the Supreme Court in the case of Lawrence Musiitwa Kyazze vs. Eunice Busingye (supra).

c

o

o

4 t.

o

the case of Erin-For Properties Ltd versus Cheshire County Council upra) Megarry, J observed as follows:

"There may ofcourse be many cases when it could be wrong to grant an injunction pending appeal, as where an appeal would be frivolous, or to grant the injunction would inflict greater hardships than it would avoid. But subject to that the principle is to be found in the leading judgment of @tton L. J in Wilson veaus Church (No. 2) [1879] 12 Ch. D 45c) when speaking of an appeal from the Court of Appeal to the house ofLords he said;

'Where a party is appealing, exercising his undoubted right of appeal this Court ought to see that the appeal if successful is not nugatory"

his position of'the law has been followed by this court in numerous pplications of this nature. That this Court must ensure that an appeal if successful is not rendered nugatory. ln my view this is the most important ground that court must consider in an application of this nature

From the above the applicant ought to satisfy the following conditions;

- 1. That the applicant has lodged a notice of appeal in accordance with Rule 76 of the Rules of this Court. - this court and is pending hearing. 2. That a substantive application for stay of execution has been filed in - 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. - . That refusal to grant the stay would inflict greater hardship than it would avoid.

ree with Mr. Mubiru Kalenge learned counsel for the applicant that the licant has lodged a notice of appeal in accordance with Rule 76 of the s of this Court. I am unable to agree with counsel for the respondent

fo

o

that a notice of appeal is not an appeal for the purposes of an application of this nature. All the applicant is required to do is to lodge a notice of appeal in this court in accordance with Rule 76 of the Rules of this Court. I find that this has been complied with.

Paragraphs 3 (0 of the Notice of Motion does not indicate the application number of the main application for stay herein. However I have been able to ascertain from court records that there is a pending application No. 340 of 2013 for a substantive application for stay of execution from which this application arises.

This condition has also been satisfied. 10

1 t

a.

This application was filed in this court on 25th October 2013, the notice of appeal having,been flled a day before. The High Court order against which the applicant is appealing was made on 21"t October 2013 therefore this application was made without undue delay. This condition has too been satisfied.

'l he applicant states both in the nrotion and in the affidavit that it is willing to deposit security for due performance of the order. I have no reason to doubt that. This ground has also been satisfied.

The applicant contends that:-

"The grounds of the Applicants Appeal are meritorious with high chances of success".

However no draft memorandum of appeal was attached to the pleadings and as such i was unable to ascertain the validity of the above statements. I have read the ruling of the Hon Judge of the High Court, and I was unable to ascertain therefore any apparent irregularity, fraud or lack of jurisdiction. I am not satisfied that the applicant has established that the main application herein and or the appeal itself have high chances of success. ^I find that this condition has not been satisfied.

The applicant in paragraph 3 (S) and 3 (h) of the notice of motion states as follows:- ^o

o

f

3(g) that there is an impending threat of execution of the order of court in Miscellaneous Cause No. 20 of 2013 as the ruling has been made and an order ertracted waiting to be executed.

3(f) that the execution of the said order will render the main application for stay and the pending appeal nugatory if this application is not granted.

ere is no evidence whatsoever that there is an impending or imminent reat of execution. No such evidence was provided. No warrant of ecution has been issued or even applied for. I have found no evidence of y threat of execution on record. There is no evidence that if the order is t stayed the main application and the appilal would be rendered gatory.

,61

o

e question to be resolved in this peculiar case is whether or not there is order capable of being executed at all.

ack's Law Dictionary Sixih Edition defines execution in the following rms:-

"Process issuing from a court in a civil action authorising the sheriff or other competent officer to carry out the courT's decision in favour of the preuailing pafty"

e same dictionary defines stay of execution as follows:-

/

(.o

o

"The stopping or aresting of execution on a judgment that is of the judgment creditor's right to issue execution, for a limited period".

ppears that execution refers to a process by which a successful party in civil matter enforces the decree or order. This unusually entails achment of property to recover judgment debt, order of eviction, order uiring vacant possession of land, cancellation of cedificate of title, return moveable property and so on. It ct

my humble vieW is that for an order to be stayed such an order must be pable of being executed. The purpose of an order of stay of execution is preserve the status quo and protect the applicants' right of appeal from ing rendered nugatory.

National Enterprise Corporation versus Mukisa Foods Miscellaneous il Application No. 7 of 1998 this Court held as follows at page 7;

"The Court has power in its discretion to grant stay of execution where it appears to be equitable so to do with a view to temporarily preseruing the status quo.

As a general rule the only ground for stay of execution is for the applicant to show that once the decretal propefty is disposed of there is no likelihood of setting it back should the appeal succeed".

e Supreme Court of Uganda in CivilApplication No. 9 of 1990; Francis nsio Micar vs. Nuwa Walakira observed as follows:

"lt would be unwise in some circumstances to defeat a statutory right of appeal by for example demolishing the subject matter of a suit so that the appeal is rendered nugatory. Again stay may be necessaty when it comes to the notice of any court that an alleged fraud has been practiced upon it effecting its decree or when courts action is in doubt through want of jurisdiction".

r) is court cited and followed the above observation in the Civil Application 21 of 1996; Teddy Sseezi Cheeye and another versus Enos musiime, where it observed that although what amounts to sufficient use in an application for stay of execution has not been specifically fined the Micar vs. Walakira case (supra) illustrates the type of cumstances that can be considered to amount to sufficient cause for an er of stay of execution to be granted. The learned justices of this court it in the following words:- I

"Such include where the subject of a case is in danger of being destroyed, sold it in anyway disposed of. ln such a case a stay is ordered to preserue the status quo or where the decree in question is effected by a glaring flow in the record of the lower court as b make the appeal uery unlikely to succeed".

this particular case, the appeal is in respect of a ruling in an application r judicial review. The learned trial judge found tlrat the applicant commended the removal of the respondent from office without giving him fair hearing and that the subsequent decisions to keep him out of office

o

t ;

iil ilG g\$!k ffi ffif Fqn'+p.ditffi' rsrqr,tD 'Fs ffifi !ffE-ErryE fiEffi'tk

ational Enterprise Corporation versus Mukisa Foods Miscellaneous Application No. 7 of 1998 this Court held as follows at page 7;

"The Court has power in its discretion to grant stay of execution where it appears to be equitable so to do with a view to temporarily preseruing the status quo.

applicant to show that once the decretal propefty is disposed of there is no likelihood of setting it back should the appeal succeed". o As a general rule the only ground for stay of execution is for the

Supreme Court of Uganda in CivilApplication No. 9 of 1990; Francis io Micar vs. Nuwa Walakira observed as follows:

'lt would be unwise in some circumstances to defeat a statutory right of appeal by for example demolishing the subject matter of a suit so that the appeal is rendered nugatory. Again stay may be necessary when it comes to the notice of any court that an alleged fraud has been practiced upon it effecting its decree or when courts action is in doubt through want of jurisdiction"

I

court cited and followed the above observation in the Civil Application 21 of 1996; Teddy Sseezi Cheeye and another versus Enos usiime, where it observed that although what amounts to sufficient e in an application for stay of execution has not been specifically ed the Micar vs. Walakira case (supra) illustrates the type of mstances that can be considered to amount to sufficient cause for an r of stay of execution to be granted. The learned justices of this court In the following words:-

o

o

"Such include where the subllect of a case is in danger of being destroyed, sold it in anyway disposed of. ln such a case a stay is ordered to preserue the status quo or where the decree in question is effected by a glaring flow in the record of the lower court as to make the appeal very unlikely to succeed".

particular case, the appeal is in respect of a ruling in an application dicial review. The learned trial jUdge found that the applicant mended the removal of the respondent from office without giving him hearing and that the subsequent decisions to keep him out of office 15

n forced leave indefinitely are unfair, unreasonable and unjustifiable. He eld that-

"The underlying intention to keep the applicant on indefinite forced leave till his contract expires in 2014 cannot be allowed by this court".

he court then went on to issue the following writs:-

o

o

- /. That the writ of Ceftiorari issues calling for and quashing the decision arrived at by the Respondent University Council, recommending the dismissal of the Applicant as the Wce Chancellor and keeping him out of office on an indefinite forced leave. - 2. That the writ of Mandamus issues, directing the Respondent to comply with the findings and recommendations of the Parliament of Uganda which ordered that the entire University Management be investigated by the offices of lnspector General of Government (lCG), the Auditor General and the Directorate of Criminal I n tellig e n ce ln vestig a tio n s D epa ftm e nt.

3. That the writ of Prohibition issues against, effecting the illegal orders of the University Council.

s this order of court that is subject of appeal from which this application SES It

nd that these orders are not capable of being executed in the true sense the word as defined above and that no warrant of execution can be ued to enforce them. There is therefore nothing to stay I

a

o I

. Mubiru Kalenge argued that with the above order the respondent will e his way back to office yet the applicant is not prepared to have him ck

e applicant cannot chose which order courts in this county can issue or licant may infact be cited for contempt. The orders of the High Court me effective on the day they were pronounced. ln fact Mr. Mubiru lenge conceded that the current status quo is that the respondent is the issue. By refusing to comply with the orders of the High Court the

ice Chancellor of the Applicant University, the act of locking him out of ffice notwithstanding

he applicants contend as follows in paragraphs 3(k) (L) (M) of the notice motion

3(K) the Applicant's council as the respondent's employer is not ready to have him back in office pending the completion of investigation into the Allegations raised against the Respondent by the staff of the Applicant.

3(L) the Applicant is at a great risk of disruption of its programs, and the smooth running of the University due to the mistrust that still exists within the applicant's Management and staff regarding the unresolved allegations leveled against the Respondent.

3(M) substantial loss will result to the Applicant in terms of the likely closure of the University unless the interim order staying the execution of the Order granted in Miscellaneous Cause No. 20 of 20/3 pending the hearing of and determination of the main

21,

r

application for stay of execution of the said order pending appeal is granted.

clearly appears that the case for the applicant is that if this court does not' ue an order of stay of execution "a/l hell will break loose" at Kyambogo niversity. This Court cannot take decisions under threats.

his is absolutely unacceptable. This court must make orders that are gal, just and equitable irrespective of what happens outside the court om. That is why the symbol of justice"is a blind folded woman with ^a word in one hand and scale in the other. ln order to be objective justice ust be blind othenryise courts would lose their objectivity.

o

I

o

he disruptions of programmes at the University which I must say is very peculative and'a veiled threat was not proved. Even if it was real and minent it is not a ground for granting a stay of execution.

n Marine and General Mutual Life Assuranre Society veBus Feltwill Feri District Druhage Board [1945J KB 394 it was held that, execution

a court order would not be stayed simply because its execution would ake it impossible for the respondents to carry out their statutory duty.

find that in this particular case before me there is no proof that the spondent will suffer any loss by complying with the High court order or ll fail to carry out its statutory duty if the order is not stayed. Even if it re so it would not be a ground for grant of stay of execution. I am not tisfied that there is any evidence to show that the appeal be rendered atory if this application is not granted. I

applicant is not a party to Constitutional Petition No. 27 of 2013 and as h the orders therein do not apply to him.

ppears to me that this application and the main application for stay are ght in bad faith. They are intended to delay the respondent from uming his office and conducting his duties. It

application and the main application for stay herein are intended to at the orders of the High Court and to keep the respondent on forced e until his contract expires, as observed by the learned trial 1udge. The

o

a

I

plication if granted would alter lhe status quo prevailing since the High urt order was made.

tnd that the respondent is at present lawfully in office and he is no longer forced leave. To hold othenvise would be to alter the status quo.

e act of applicant's employees denying the respondent physical access his office can in no way be construed to mean that he is not holding the ce of the Vice Chancellor at the Applicant University. lt would be absurd old otherwise. to

s application is frivolous and devoid of any merit. I also find that it was ught in bad faith and is an abuse of court process.

It accordingly dismissed with costs.

re I take leave of this matter I must say the following.

t this application was filed in this court in 25tt of October 2013 a day r a notice of appeal had been filed and was fixed for hearing before me stNovember, 2013. There are hundreds of similar applications pending is court which were filed sometime back. Some as far back as 2008 or 15 on tn

o

it

t

even earlier. These applications have never been fixed for hearing, yet recent applications such as this one have been fixed heard in a record time.

Justice must not be done but must manifestly be seen to be done. All persons in this country are equal before the law. A system must be put in place which ensures objectivity, fairness and equity in fixing all matters in this court subject only to the law.

Dated at Kampala this......06^th..... day of...... November.... 2013.

$\mathsf{S}$

$\mu_0$

$5$

## HON. JUSTICE KENNETH KAKURU

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**JUSTICE OF APPEAL.**