[2024] UGCA 271

## ⁵ THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APLICATION NO .248 OF 2023

## (ARISING OUT OF CrVtL APPEAL NO. 020 OF 2023)

# 10 RWAVIRA PATRICK APPLICANT

#### VERSUS

#### KUTESA RICHARD RESPONDENT

(Application arising from the iudgment and decree of the High Court of Uganda at Masaka (Margaret C. Oguli Oumo, J.) delivered on 12th October 2015)

# CORAM: MOSES KAZIBWE KAWUMI, JA SINGLE JUSTICE

#### RULING

The Application was brought under Rules 2 (2l1,6 (2) (b),43 (1) and (21 of the Judicature (Court of Appeal Rules) Directions S.l. 13-10. Ihe Applicant seeks an order of stay of execution of the judgment, decree and taxed costs in Civil Suit No.49 of 2012 pending the disposal of Civi! Appeal No. 020 of 2023 and provision to be made for costs of the Application. 20 25

### Background

The background to this Application is that the Respondent successfully sued the Appellant for trespass to land comprised in Leasehold Register Volume 4353 Folio 1,4 Plot 12 Ranch No. 59 land at Mawogola Masaka registered in the name of the Respondent.

The Applicant denied the Respondent's allegations and put up ^a defence of claim of right and counter claimed against the Respondent for fraud. The Court entered Judgment in favour of the Respondent and dismissed the Applicant's Cou nter Claim with costs.

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⁵ As a successful litigant, the Respondent commenced execution proceedings while the Applicant applied for stay of execution in the trial Court. The trial Court issued a conditional order of stay of execution requiring the Applicant to deposit UGX.20,000,000f = as security for due performance of the decree within 30 days from the date of the ruling. 10

The Applicant either ignored, refused or failed to comply with the conditional order of stay of execution, which prompted the Respondent to continue with execution proceedings hence this Application.

#### Grounds of the Application 15

The grounds of this Application are set out in the Notice of Motion a: follows;-

- 1,. That the Applicant being dissatisfied with the whole decision in - Civil Suit No.049 of ZOLZappealed against the same in the Court of Appea! of Uganda at Kampala. - 2. That the said Appeal has a high likelihood of success as stated in the affidavit in support of the Application. - 3. That the Applicant shall suffer irreparable damages af the stay of execution of the Judgment is not allowed which would result irr eviction from the suit land and recovery of exorbitant taxed costs, that will render the Appeal nugatory. - 4. That there is an eminent threat of execution as the Respondent has already been granted several warrants of arrest in execution of the judgment orders. - 5. That the Applicant first promptly applied for stay of execution at the trial Court, but the trial Court failed him. 35 - 6. That the balance of convenience is in favour of the Applicant. - 7. That it is in the interest of ⁴⁰ justice that this Application is allowed.

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⁵ The above grounds are supported by the affidavit of the Applicant, Rwavira Patrick which expounds on them. The Application is further supported by a supplementary affidavit wherein the Applicant deposed that the threat of execution is eminent and real and that the status quo will be changed before the Appeal is determined if an order of stay of execution is not granted. 10

The Respondent opposed the Application through his affidavit in reply filed on September L,2023. The thrust of his contention is that the appeal is incompetent since the Notice of Appeal was filed out of the statutory period. Further, that the Record of Appeal and the Memorandum of Appeal were also filed out of time and the Notice of Appeal has never been served upon the Respondent.

# Representation

When the Application came up for hearing on September 5, 2024 neither the parties nor their advocates were in Court. Written submissions filed by the parties were adopted for the determination of the Application. 20

# Submissions of the Applicant

Counsel for the Applicant submitted that the purpose of a stay of execution is to preserve the subject matter in dispute so that the rights of the appellant who is exercising his/her undoubted right of appeal are safeguarded and the appeal if successful is riot rendered nugatory. Counsel relied on Lawrence Musitwa Kyazze Vs. Eunice Busingye, Civil 25

Application No. 18 of 1990. 30

> Counsel also cited Rule 612l (b) of the Rules of this Court, which amcng others, provides for the powers of Court to order stay of execution on such terms as the Court may think just where a notice of appeal has been lodged in accordance with Rule 76.

Counsel submitted that the Applicant seeks to preserve the current state of affairs; otherwise, execution will render the Appeal nugatory.

- ⁵ !t was submitted that the Applicant, meets the requirements for grant of an order of stay as laid out in the case of Lawrence Musitwa Kyazze Vs. Eunice Busingye (Supra) as follows:- - L. The applicant must establish that his appeal has high chances ol su ccess. - 2. lt must also be established that the Applicant will suffer irreparable damage or that the appeal will not be rendered nugatory if a stay is granted. - 3. lf L and 2 above are not established, Court must consider where the balance on convenience lies. - 4. The Applicant must also establish that the Application was instituted without delay. - It was submitted that the Applicant established that his appeal has high chances of success, owing to the fact that the subject of litigation is land. That there are serious questions raised in the Memorandum of Appeal including how the trial Court arrived at the decision, Counsel urged Court to find that there is an Appeal with high chances of 2s SUCCeSS. 20

Counsel further submitted that there is a warrant of vacant possessiot ^r and demolition, which in effect is an eviction of the Applicant from the suit land. That an eviction is irreparable and amounts to substantial loss as the status quo will be altered. That the alteration of the status quo will render the Appeal nugatory.

On the other principles, Counsel submitted that the Applicant is in occupation of the suit land and it is only the pending execution by way of eviction. That as such, the balance of convenience tilts in his favour. Counsel further argued that the Application was filed withou: unreasonable delay. Counsel urged Court to grant the Application.

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⁵ Submissions for the Respondent

I a

!n reply, Counse! for the Respondent submitted that the Appeal is incompetent having been filed out of time and that there was no Notice of Appeal served upon the Respondent's Counsel. That the Applicant did not file a memorandum of Appeal with in the mandatory statutory period. Counsel urged Court to dismiss the Application with costs.

Counsel further submitted that the Application falls short of tht: requirements for applications for stay of execution, as it does not show' that there is an appea! with a likelihood of success, that the Applicant does not show that he wil! suffer irreparable loss and that the Applicant delayed to file this Application. He thus prayed for dismissal with costs.

# Consideration of Court

lhave duly considered all the arguments of both Counsel and the authorities cited. I entirely agree with Counsel for the Applicant on thc principles for consideration while granting applications of this nature as cited in Lawrence Musitwa Kyazze Vs. Eunice Busingye (Supra). 20

The jurisdiction of this Court to grant a stay of execution is set out in Rule 6(21 (b) of the Rules of this Court, which provides that:

"2. Subject to sub - rule (l), the institution of an appeal sholl not operote to suspend any sentence or stay execution but the Court moy:

a).........

b) in ony civil proceedings, where a notice of appeal has been lodged in occordonce with rule 76 of these Rules, order o stoy of execution. on such terms os the Court may think just."

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⁵ Whereas Rule 2 (2) gives this Court, the discretion, in civil proceedings, where a Notice of Appeal has been lodged following Rute 76 of the Rules of this Court, to order a stay of execution in appropriate cases, the discretion is subject to among others, the filing of a Notice ol Appeal in accordance with Rule 76 of the rules of this Court.

ln this case, the Applicant received Judgment on October L2,2016 but filed a Notice of Appeal in this Court on May 15, 2017. This clearly shows that the Notice of Appeal was not filed in accordance with Rule 76 which requires the filing to be done within 1.4 days. The Notice of Appeal was filed seven months after the Judgment of the High Court

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had been delivered. Unfortunately, Counsel for the Applicant has not bothered to apply to Court to validate the late filing of the Notice of Appeal that was fileo

20 out of time. ln the eyes of the law, the Applicant has no valid notice of appealfiled in this Court due to failure to validate the Notice of Appeal.

This omission cannot be cured by rule 2 (2) of the rules of this Court because it has to be applied judiciously so as not to create a by-pass to

2s the law. The Applicant's Counsel should have applied to validate the Notice of Appeal and have the Application for validation heard before fixing this Application.

ln the absence of a valid Appeal perrding before this Court, tam 30 constrained to decline to grant this a pplication. lt is dismissed with costs to the Respondent.

Delivered at Kampala this -l-L ^B day ", ...9..& r\*"=zoz4

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Moses Kazibwe Kawumi JUSTICE OF APPEAL