[2025] UGHCLD 98

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DTVTSTON)

## MISCELLANEOUS APPLICATION NO. 1751OF 2024 (ARTSTNG OUT OF CtVtL SUtT NO. 887 OF 2018)

NOBERT UWIZERA APPLICANT

## VERSUS

DR. PITO JJEMBA RESPONDENT

## Before; Hon. Lady Justice Dr. Christine A. Echookit

### RULING

#### INTRODUCTION:

- [1]The Applicant brought this application under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 52 Rules '1, 2 and 3 of the Civil Procedure Rules for orders that; - a) Execution of the Decree and ororders arising from CivilSuit No.887 of 2018; Dr Pito Jjemba Vs Nobert Uwizera be stayed or set aside. - b) Costs of the application be provided for.

### GROUNDS OF THE APPLICATION:

- [2] The grounds in support of this application are set out in the affidavit in support deponed by Nobefi Uwizera. Briefly they are that; - tr a) The Respondent filed Civil Suit No. BB7 of 2018; Dr. Pito Jjemba Vs Nobert Uwizera claiming trespass and judgement was delivered in his favour by Hon. Lady Justice Alexandra Nkonge on 1Srh day of I'Aay 2024.

- b) The court in the said judgement ordered cancellation of the certificate of title created from the original Plot 226 and re-survey of the entire area. - c) Dissatisfied with the decision of the court, the Applicant filed a Notice of Appeal and requested for a certified record of proceedings. - d) The appeal has a high likelihood of success and shall be rendered nugatory if execution is not stayed. - e) The Applicant shall suffer substantial loss and irreparable damage if execution is not stayed. - f) The application for stay of execution has been filed without undue delay from the date of issuance of the decision of this Honourable Court. - [3] The application was filed on 1't July 2024. There is no affidavit of service on ECCIVIIS and therefore it is not evident when it was served so as to determine whether the affidavit in reply filed on 2no April 2025 was filed in time. That is the same for the affidavit in rejoinder filed on 17rh day of April 2025. ln the interest of justice, I will proceed to consider all the affidavit evidence. - [4] The Respondents filed an affidavit in reply to the effect that, - a) The Applicant sold part of the suit land during the pendency of the suit to hide the propefty from the hands of justice, which was irregular.

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- b) The intended purchaser was notified about the pending suit, but despite that, he purchased with full knowledge of the fact that part of the land encroached into the Respondent's land. - c) The Applicant brings this application in bad faith since the decision of the Court only affirmed the recommendations of the numerous survey reports that were always available to the Applicant and those that were jointly conducted. Further, that the parties conducted joint surveys, and they all concluded that the Applicant had encroached onto the Respondent's land, and he was always aware of the same but waited for the Court to confirm the very position that expefts kept confirming. - d) The affected land does not include the Applicant's house; the Respondent's Plot 428 is only enclosed in the Applicant's fence by one decimal. The rest of the encroached-on land is where the Applicant ostensibly trespasses through the Respondent's property to access his land, having blocked and enclosed within his perimeter wall the titled access road that serves all the neighboring plots, including the Applicant's land (residual by balance from the mother title 113) - e) The onus lies with the Applicant to resolve his encroachment on the access roads with Buganda Land Board, a matter the genesis of which he is best placed to explain. - f) ln further reference thereto, the Court order requires Buganda Land Board to conduct a resurvey, boundary opening and mark the access road to the Applicant's property and that serving the neighboring plots.

[5] ln rejoinder, the Applicant avers that;

- a) The Respondent's affidavit is full of falsehoods, unsubstantiated and contradictory statements belatedly intended to mislead court. - b) He the Applicant sub-divided and sold portions of his land comprised originally in f Block 268 Plot226 in 2015 way before Civil Suit No. 887 of 2018 was filed by the

Respondent and so it is not true that it was done during the pendency ofthe suit so as to hide the same from the hands of justice.

c) The Respondent is not challenging the Applicant's ownership of the land comprised in Plot 226. The drspute is only over one decimal as claimed by the Respondent in his reply.

### REPRESENTATION AND HEARING:

[6] The Applicant was represented by M/s KTA Advocates while the Respondent was represented by M/s CMS & Co. Advocates. None of the parties filed written submissions.

## ISSUES FOR DETERMINATION BY THE COURT:

- [7] There is one issue for determination by the court; - ¹. Whether the Applicant is entitled to an order of stay of execution pending the hearing of the appeal?

## DETERMINATION OF THE ISSUES BY COURT:

- [8] Since the parties did not file written submissions, this court will rely on the affidavit evidence of the parties, the decision of court in Civil Suit No. BB7 of 2018; Dr. Pito Jjemba Vs Nobert Uwizera and the applicable law and precedents, to arrive at its decision. - [9] Under Section 98 of the Civil Procedure Act, the High Court has inherenl powers to make decisions in the interest of justice. The order of stay of execution is one such decision (Singh Vs Runda Coffee Estates Ltd [1966] EA 263).

[10]ln the case of Lawrence Musiitwa Kyazze Vs Eunice Busingye SCCA No. 18 of 1990, it was held that;

"An application for stay of execution pending appeal is designed to preserve the subject mafter in dispute so thaf lhe rights of the appellant who is exercising his/her undoubted rights of appeal are safeguarded and the appeal if successfu/, ls not rendered nugatory."

[1 1] ln order for a stay of execution to issue, the Applicant must prove that,

- (i) There is a notice of appeal lodged with coutl - (ii) The appeal is not frivolous and has a likelihood of success - (iii) The application for stay of execution has been made without unreasonable delay - (iv) Substantial lossmayresulttotheapplicantunlessstayofexecutionisgranted - (v) There is serious or rmminent threat of execution of the decree or order and if the application is not granted, the appeal would be rendered nugatory - (vi) The refusal to grant a stay of execution would inflict more hardship than it would avoid - (vii) The Applicant has given security for due performance of the decree or order as may ultimately be binding upon him

(See; Order 44 rules 1 (2), (3) and (4) of the Civil Procedure Rules, the Supreme Court case of Hon. Theodore Ssekibubo & 4 Ors Vs The Attorney General & 3 Ors, Constitutional Application No.03 of 2014 [2014] UGSC 11; and Kyambogo University Vs Prof. lsaiah Ndiege C. A. Misc. Civil Application No. 341 of 2013. See also: Eluju Martin Vs ltobu Margret High Court Misc. Application No. 160 of 2022 High Court of Uganda at Soroti).

That there is a notice of appeal lodged with court; w[12]The right to appeal is a creature of Statute (see; Shah Vs Attorney General (1971) EA 50). Where there is no right of appeal, a party must seek leave of court to do so.

Order 44 rules 1 (2), (3) and (4) of the Civil Procedure Rules set out which Orders are appealable as of right to this Court.

ln the case of Attorney General of the Republic of Uganda Vs The East African Law Society & Anor. EACA Application No. 1 ot 2013, the court observed that; "We [...] respectfully associate ourse/ves with the position that a notice of appeal is ^asufficient expresslon of an intention to file an appeal [ ]and that such an action is sufficient to found the basls for grant of orders of stay in appropriate cases. "

[1 3] Perusal of the record shows the Applicant filed a Notice of Appeal dated 23'd May 2024 and marked annexure "8" to the Applicant's affidavit in support of the application; and lodged the same with court on 23"tof l,lay 2024.

The first requirement has been satisfied

### That the appeal is not frivolous and has a likelihood of success;

[14]ln the case of Formular Feeds Ltd. & 3 Ors Vs KCB Bank Ltd. Misc. Application

No. 1647 of,2022, court held that;

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"The appeal will be considered frivolous if prima facie the grounds intended to be raised are without any reasonable basis tn law or equity and cannot be supported by agood faith argument. [....] Additionalevidence indicating afrivolous appealis the applicant's conduct of prior litigation which may show that the appeal is merely partof a series of sulls, applications and appeals overthe same subject matter in which the applicant has engaged with no success or no chance of success. fhe

prior litigation or procedural history can be used lo estab/ish the lack of merit in the present appeal or the bad faith of the applicant in filing the present appeal "

- [15]The Respondent in his affidavil in reply stated that he would raise a preliminary objection that the application is misconceived and superfluous since there is no executable order against the Applicant to be stayed. That there is no actual or even perceived threat of execution whatsoever or any attempt by the Respondent to execute the orders of Court against the Applicant and the application is an abuse of Court process and a waste of Courts time. - [16]ln reloinder, the Applicant stated that on 16t,January 2025, the surveyors from Buganda Land Board led by IVlr. James Wamala went to the suit land in the company of the Respondent with the purpose of re-surveying the suit land in Civil Suit No BB7 of 2024. That he was informed by his lawyers that the court orders in that suit are selfexecuting. That there is an actual threat of execution of the said orders as a re-survey has been concluded and the Respondent and the Respondent together with Buganda Land Board are in the process of forurarding the deed prints to the Registrar of Titles for cancellation of the Applicant's certificate of title. - [17] The learned Hon. Justice Kakuru in the case of Commissioner Customs Uganda Revenue Authority Vs Kayimba CACA No. 62 o|'2014, stated that the circumstances for consideration include whether the subject matter of a case is in danger of being destroyed, sold or in any way disposed of.

ln the present matter, the Respondent admits that the parties have previously undertaken joint surveys, that the Respondent's Plot 428 is only enclosed in the Applicant's fence by one decimal and is quick to state that the Applicant has

encroached on the access road that serves all the neighboring plots, including the Applicant's own land. He fufiher states that the onus lies with the Applrcant to resolve his encroachment on the access roads with Buganda Land Board, and that the Coutl order requires Buganda Land Board to conduct a resurvey, boundary opening and mark the access road.

The Applicant in rejoinder avers that a correctton of his alleged encroachment will necessitate breaking of his perimeter wall and a substantive part of his residential house which is likely to irreversibly and substantially prejudice him.

[18] Hence, I am convinced that the Applicant has shown that ifthe re-survey occurs and action is taken to implement the court order, his land will possibly be greatly impacted upon beyond the one decimal of his Plot 428 that the Respondent as having been enclosed the Applicant's fence. Therefore, the objection by the Respondent that there is no executable order against the Applicant to be stayed and that there is no actual or even perceived threat of execution whatsoever or any attempt by the Respondent to execute the orders of Court against the Applicant cannot stand. The judgement and decree of this court in Civil Suit No. 887 of 2018 is self-executing.

## That the application for stay of execution has been made without unreasonable delay;

[19]ln the case of Formular Feeds Limited (supra), it was found that;

"Applications for a stay of execution ought to be made within a reasonable time. Whether delay is unreasonable will depend on the peculiar facts of each case. Delay must be assessed according to the circumstances of each case, The reckoning of time to determine if a delay is unreasonable begins at the time the decree or order ls sea/ed and becomes enforceable." M'


[20] The judgement in Civil Suit No. 887 of 201 8 was made on '1 5th day of lVlay 2024. Ihe Notice of Appeal was filed on 23'dday off l\4ay 2024.fhe request for a certified copy of the proceedings was made by letter of 23'd May 2024. Ihe decree was extracted on 25th June 2024. Ihe present application was filed on 1'tJuly 2024.

It is evident from the above that the Applicant filed this application without undue delay. Hence, I find that this requirement has been satisfied.

#### That subsfanfia/ /oss may res ult to the Applicanf unless stay of execution is granted;

[21]Substantial loss refers to loss of real worth or value whether great or small that is irreparable - cannot be undone once inflicted and cannot be adequately atoned for in damages and is not merely nominal (see Tropical Commodities Supplies Ltd. & 2 Ors. Vs lnternational Credit Bank Ltd. (ln Liquidation) Misc. Application No. 379 of 2003).

It should not be ordinary loss to which every judgement debtor is necessarily subjected when he or she losses a case and is deprived of his or her property or freedom as a consequence. (Tanzania Cotton Marketing Board Vs Cogecot Cotton Co. SA [1995 -19991 E. A. 312 cited with approval in Hoima Municipal Council Vs Karamagi (Misc. Application No. 0032 ot 202'l) [2022] UGHCCD 138 (7 September 2022); Pan African lnsurance Co. (U) Ltd. Vs lnternational Air Transport Association HCMA No. 86 of 2006).

pZlfhe Applicant's avers in paragraph 9 of his affidavit in support that there is danger of cancellation of his title and destruction of his house. The Respondent on his part asserts .^ -that onlv one decimal of his Plot 428 is enclosed in the Applicant's fence. ry'

Where court directs a cancellation of titles and re-survey, it is more likely that the result will be more than just about the one decimal. Hence, it is prudent that the process is halted to prevent any deprivation that is above and beyond that which a litigant who losses a case would ordinarily suffer. However, this does not mean that the Applicant's claim that his house will be destroyed has been accepted by this cout1. From the affidavit evidence on record, I do not find anything to support that preposition.

# That there rs serious or imminent threat of execution of the decree or order and if the application is not granted, the appeal would be rendered nugatory;

[23]The learned Hon. Justice Stephen IVlubiru in Formular Feeds Limited Vs KCB Bank

Ltd (supra) stated that;

"The term "nugatory" has to be given its full meaning. /l does not only mean worthless, futile or invalid, it also means trifling. Whether or not an Appeal will be rendered nugatory if a stay is not granted depends on whether or not what is sought to be stayed if allowed to happen will be reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved, or it is in the public interest to grant a stay. This may include a// cases where it is necessary to preserve lhe status quo pending appeal, in aid of and to preserve the appellate power, so that the rights involved in the appeal may not be /ost or reduced by reason of an intervening execution of the judgment

lf the judgment is of a nature to be actively enforced by execution and its execution does not delay or impair the character of the appeal, a stay will ordinarily not be granted."


Where there is imminent threat of execution, it means that execution is reasonably certain and impending.

- [24]The Applicant stated in paragraph 10 of his affidavit in support of the application that he would suffer irreparable damage if his cedificate of title is cancelled and if his house is destroyed. He attached as annexture "C" to his affidavit a letter from M/s CMS & Co. Advocates counsel for the Respondent dated 27th day of June 2024 lo the residents and neighbours of Lubowa Block 268 King's Close. The said letter notifies all parties to cease trespass on the Respondent's property and informs them that the Respondent is taking immediate possession of his land. - [25] ln my view, that alone is not evidence of imminent threat of execution that would render the appeal nugatory.

To be nugatory, the appeal must be threatened with imminent execution of the decree. Ordinarily, there must be an application for execution of the decree and a notice to show cause why execution should not issue. But in the present matter, the judgement of this courl cancelled the subdivisions and titles created over Plot 226 and reverted the said plot to its original form. lt further directed a re-survey of the entire area with the purpose of creating another access road over Plot 226. Hence, it is evident that the judgement and decree of the court is self-executing. This constitutes an imminent threat with a possibility of permanent loss of property.

ln view of the above, it is my opinion that the Applicant is likely to suffer substantial loss if execution is not stayed. lf indeed the Respondent executes the decree the appeal would be rendered nugatory and damages will not reasonably compensate the pplicant


Accordingly, I find that this condition has not been satisfied.

# That refusal to grant a stay of execution would inflict more hardship than it would avoid:

- [26] In the case of **National Enterprise Corporation Vs Mukisa Foods Misc. Application** - **No. 7 1998, the Court of Appeal held that;**

"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 preserving the status quo. [...] As a general rule the only ground for stay of execution is for the applicant to show that once the decretal property is disposed of there is no likelihood of getting it back should the appeal succeed." (See P. K. Sengendo Vs Busulwa Lawrence and anor. Court of Appeal Civil Application No. 207 of 2014).

[27] In the present matter, since the judgement and decree of this court is self-executing, I am of the view that the Applicant would suffer specific hardship and disruption to him, to the extent beyond which a judgment debtor is necessarily subjected when he or she loses his or her case and is deprived of his or her property in consequence.

#### Whether security has been given by the Applicant for the due performance of the decree.

[28] Security for due performance of a decree is required to protect the Respondent from the risk that the Applicant may not be able to satisfy the decree. In most cases, however, courts have preferred to order security for costs so as not to stifle appeals. (see Formular Feeds Limited (supra) citing Tropical Commodities Supplies Ltd and others Vs International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 and

DFCU Bank Ltd Vs Dr. Ann Persis Nakate Lussejere, CA No. 29 of 2003). ln the case of lmperial Royale Hotel Ltd & 2 Ors Vs Ochan Daniel, Misc. Application No. 11 of 2022, court held that security for costs is not a condition precedent to the grant of stay of execution. Security for costs is, however, required to ensure that a losing party does not intentionally delay execution by bringing unnecessary applications; and also to assure the Respondents that their costs are catered for.

- [29]The Applicant did not indicate willingness to commit security for the due performance of the decree. ln the circumstances of the present matter, I am inclined to grant this application on condition that the Applicant furnishes to this court security for the due per-formance of the decree. - [30]Accordingly, the Applicant shall deposit to this c0ur120,000,000/= (Twenty Million Shillings) for the due performance of the decree within thirty days of this ruling.

#### DECISION OF COURT:

[31] ln the final result;

- a) This application is granted. - b) Each party shall bear its own costs

I so order

Dated at Kampala this ²³ ,d day of Arn e ²⁰²⁵

H-try

Hon. Lady Justice Dr. Christine A. Echookit Judge.