[2025] UGCA 228

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO: 1206 OF 2023 (ARISING FROM CIVIL APPEAL NO: 429 OF 2022) (ARISING FROM HIGH COURT CIVIL APPEAL NO:122 OF 2017)

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## SEKAMWA LIVINGSTONE::::::::::::::::::::::::::::::::::::

#### **VERSUS**

KIRUMIRA MUHAMMAD::::::::::::::::::::::::::::::::::

#### **BEFORE: HON. JUSTICE MUSA SSEKAANA, JA** $15$

# *(Sitting as a Single Justice)*

## **RULING**

This application was brought by way of Notice of Motion under Rules 2 (2), 6(2) (b), 42, (2) of The Judicature (Court of Appeal Rules), Direction SI 13-10, Art126 (2) of the Constitution of the Republic of Uganda, and section

11 of the Judicature Act Cap 13) seeking the following orders;

1. That stay of execution and or stay of proceedings and or injunction and generally relief against the enforcement of the decree in High

court Civil Appeal No.122 of 2017.

**2.** Costs of the application be provided for. 25

This application is supported by an affidavit in support deposed by SEKAMWA LIVINGSTONE - the Applicant briefly stating;

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- ⁵ 1. That the applicant has filed Civil Appeal No.429 of 2022 and the same is still pending hearing. - 2. That the applicant's intended appeal has a high probability of success and may be rendered nugatory if the respondent is not halted from proceeding with the execution process. - 3. That there is threat of execution by the respondent of the High Court decree. - 4. That the applicant shall suffer more inconvenience than the respondent viz loss of property and means of livelihood if the orders of the High Court vide Civil Appeal No.122 of 2011are enforced yet the respondent shall suffer no loss if enforcement of the judgement is halted. t5 - 5. That the applicant had filed in the High Court an application for stay of execution vide High Court Misc. Application No. 1779 of 2022 but the same was dismissed. 20 - 6. That in the interest of justice, this application ought to be granted to stay execution pending the determination of the appeal. 25

The respondent filed an affidavit in reply to the application stating;

- 1. That this application has no merit, its frivolous, an abuse of court process and it should be dismissed with costs. - 2. That the application is malafide. 30

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- 3. That there is no threat to execution as the execution is in very advanced stages. - 4. That a notice of vacant possession was already issued on the applicant on the l.lth day of May 2023. - 5. That two warrants of arrests were already issued against the applicant. - 6. That the applicant has satisfied substantially his obligation as far as execution I concerned

The applicant filed an affidavit in rejoinder stating that:

- 1. The only execution which has taken place was that in regards to costs. That execution by way of eviction of the applicant from the suit land has not taken place as the applicant is still in full occupation and utilization of the suit land. - 2. That the suit land comprises his residence and garden from which he derives sustenance and that he will suffer irreparable loss if he is evicted from the suit land.

# 25 Representation

At the hearing, both parties and their counsel were absent.

## Both parties filed written submissions

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- s Counsel for the applicant cited the decisions of Lawrence Musiitwa Kyazze vs Eunice Businge, SC Civil Application No.18 of 1990, Theodore Ssekikubo and others vs Attorney General and another Constitutional Application No. 6 of 2073; for the conditions that must be satisfied before an order for stay of execution can be granted and these l0 are; - a. The applicant must show that he has lodged an appeal. - b. The applicant must establish that his appeal has a high likelihood of success. - c. lt must be established that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. - d. lf l and 2 has been established, court must consider where the balance of convenience lies. - e. The application must be brought without delay. - Counsel for the applicant submitted that the applicant as per his affidavit has already filed an appeal vide Civil Appeal No. 0429 of 2022 and the same is pending in this Honorable court. 20

That the said appeal has a high likelihood of success and that if this application is not granted, the appeal shall be rendered nugatory.

On the ground of irreparable damage and threat of execution, counsel for applicant submitted that there is indeed a serious threat of execution of the decree. That the respondent has already issued a Notice to show Cause and that if this application is not granted, he is likely to suffer more 25

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⁵ inconvenience as he is already in possession and utilization of the suit land. That the application has also been brought without delay.

Counsel for the respondent submitted that, an appeal does not operate as a stay of proceedings and that execution should not be stayed simply because one has lodged an appeal. That the applicant has not showed that there is any likelihood of success of his appeal That the applicant only

stated that the appeal is likely to succeed but did not show how. That the application is frivolous and vexatious and brought in bad faith and it should be dismissed.

Regarding the ground of irreparable damage or that the appeal will be rs rendered nugatory if stay is not granted, counsel for the respondent submitted that the applicant has not offered any evidence from which it

- can be deduced that he will suffer irreparable loss or that the appeal will be rendered nugatory if an order for stay is not granted Counsel invited court to dismiss this application. - 20 Appropriate consideration has been made as regards the submissions of the parties.

## Analvsis,

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The purpose of staying execution pending appeal is to enable one who is aggrieved with a judgment in a trial court to realize the fruits of the appeal. 2s lf execution is left to go on, then the appeal if successful may be rendered nugatory as some events taken might be irreversible.

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:

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5 "2. Subject to sub-rule (l), the institution of an appeal shall not operate to suspend any sentence or stay execution but the Court may:

b) in any civil proceedings, where a notice of appeal has been lodged following rule 76 of these Rules, order a stay of execution-... on such

I concur with the authorities cited by both counsel regarding the conditions t0 to be met to grant an application for a stay of execution pending appeal as thus.

ln Theodore Ssekikubo & Others v The Attorney General and Others, Constitutionat Application No.6 of 2013, the Supreme Court laid down the principles to guide the Court in granting a stay of execution.

- rs lt held that; - a) The applicant must establish that his appeal has a likelihood of success; or a prima facie case of his right to appeal - b) lt must also be established that he will suffer irreparable damage or that the appeal will be rendered nugatory if an order for stay is 20 not granted. - c) Court must consider where the balance of convenience lies, - d) The court must establish that the application was instituted without delay.

The major purpose of the grant of stay of execution is to help preserve the 2s status quo and then have the merits of the case to be handled by the full bench.

This Court has the task of establishing whether the applicant has made out the conditions for the grant of stay of execution,

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I have considered the submissions of both counsel for the applicant and $5$ the respondent.

In the present application, from the record, it can be discerned that the applicant has lodged Civil Appeal No: 0429 of 2022 that arose from High Court Civil Appeal No. 122 of 2017 and the said appeal is still pending hearing by this Honorable court.

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The applicant submitted that the appeal has a high likelihood of success. At this point, the court is not enjoined to look at the merits of the appeal but rather, to consider if it raises genuine triable issues by this Honorable court. I find that the applicant as satisfied this ground.

- On the ground of threat to execution, it is on the court record that several $15$ notice to show cause have been issued to the applicant. In fact, the respondent in paragraph 8 of his affidavit in reply stated that execution already commenced and it is in its final stages. That a notice of vacant possession (annexure C1 and C2 to the affidavit in reply) have already been issued against the applicant. This clearly shows that there is an 20 - eminent threat to execution and I find that the applicant satisfied this ground.

This court also finds that the balance of convenience tilts in favor of the applicant. This is so because according to paragraphs 6, 7 and 8 of the affidavit in rejoinder sworn by the applicant, he states that the suit land comprises his residential home, garden, family home as well as burial grounds and it's where he derives his daily sustenance. This evidence was not contradicted by the respondent in any way.

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- ⁵ Failing to grant this application will operate as an automatic eviction of the applicant from the suit land and this will render the outcomes of the pending appeal nugatory. The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful, is not rendered - nugatory. See Consolidated Marine v Nampiiia and Another Nairobi Civil Application No. 93 of 1989(COA); Nsabimana v lokana and Another CA Civil Application No. 222 of 2O23 l0 - ln the premises, this court finds that the applicant has established the grounds necessary for grant of an order for stay of execution pending the hearing and final determination of Civil Appeal No. 122 of 2011. l5

This application therefore succeeds. Costs shall be in the cause.

I so order 20

MUSA SSEKAANA TUSTICE OF APPEAL

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