Gasasira v Bataringaya (Civil Application 68 of 2025) [2025] UGCA 94 (1 January 2025)

THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA. CIVIL APPLICATION. NO. 0068 OF 2025 (ARISING FOM CIVIL APPEAL NO. 152 OF 2024) (ALL ARISING FROM HCCS NO. 051 OF 2020) GASASIRA AUGUSTINE s:::sssssssssssssssssssssstestestesteesessssss: APPLICANT -VERSUS- BATARINGAYA DAVID soggnetegeggasgegasceaseegessesssgsssseeseeseseseees RESPONDENT RULING OF CHRISTOPHER GASHIRABAKE, JA (SINGLE JUSTICE)

Introduction

[1] The applicant brought this application under Rules 2(1) & (2), 6 (2) (b), 422), 43(1) and 44 (1) of the Judicature (Court of Appeal) Rules SI 13-10, for orders that; a) An order doth issue against the Respondent, his agents and servants and persons claiming under him; staying the execution and implementation of the Judgment, Decree and all orders of the High Court in Civil suit No: 051 of 2020 Bataringaya David v. Gasasira Augustine & Anor, and further restraining the Respondent and his agents from evicting or otherwise dispossessing the Applicant and his co-owner or taking possession of the suit property comprised in Singo Block 491 Plot 11 measuring

approximately 50 acres currently registered in the names of the Applicant and Mr. Bisamaaza George (co-owner) until the final disposal of the Applicants pending Appeal in this Honourable Court vide; Civil Appeal No. 152 of 2024. b) Costs of the application be provided for. The background

[2] The brief background to the application, as can be discerned from the pleadings is that; the applicant was the unsuccessfill party in H.C.C.S No. 051 of 2020 Bataringaya David v. Gasasira Augustine & Anor. The High Court determined the matter in favour of the respondent and found that that the respondent owns 25 acres of land comprised in Singo Block 491 Plot

11. The court made orders that; the applicant should, within 30 days from the date of the judgement hand over signed transfer forms, photographs and all documents necessary for the mutation and registration of the 25 acres into the name of respondent, that the land decreed shall encompass the kibanja that the respondent had acquired from Kanyemera and the 15 acres he bought from the Applicant herein prior to the 15" of July 2019 agreement. The court further ordered the applicant pays a sum of shs. 150,000,000/= in general damages, as well as costs of the suit.

[3] Being dissatisfied with the judgment and the orders of the court, the applicant then filed an appeal against the judgement and orders of the High Court vide Civil Appeal No. 152 of 2024. The appeal is under conferencing before this Court. The applicant sought an order of stay of execution in the high court but

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contends that the High Court imposed onerous conditions, thereby incapacitating him from the benefit of a stay. His attempts to have the conditions vacated by the High Court were in vain, He therefore invoked the jurisdiction and discretion of this Court under Rule 42 (1) of the Rules of this Court by applying to this cour, hence the instant application. The Grounds and evidence in support of the application.

[4] The grounds in support of the application were set out in the notice of motion and elucidated in the affidavit in support. The gist of the grounds is that pending the appeal, which seeks to set aside the judgement and all orders of the High Court, the applicant is exposed to an imminent threat of execution, now that the attempts to obtain a stay of execution in the High Court were unsuccessful

[5] The applicant averred that the decree sought to be executed is the subject of the appeal, and that if an order for stay of execution isn’t granted, and the land is vested in the respondent, and alienated by virtue of the subject decree, the appeal and reliefs sought therein will have been rendered nugatory, if the Respondent's appeal succeeds, as the land will have been rendered irrecoverable. The decretal sum of shs.150,000,000/= will equally be onerous to recover from the respondent.

[6] The applicant further avers that the appeal has a high likelihood of success. In evidence, the Applicant alluded to the grounds of appeal in the memorandum of appeal, and also contended that since the appeal is already being conferenced and is pending hearing, the respondent, who has hitherto not been in possession of the land, and which land is still registered in the names of the applicant and his coregistered proprietor, wil not suffer any grave any inconvenience. The evidence in support of the application is contained in the affidavit in support.

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‘The grounds in opposition to the application 17] The application was opposed by the respondent and the grounds are set out in the affidavit in reply. The gist of the opposition is that the application is not competently before this court, that the application is res judicta, a similar application having been filed and determined in the High Court, that the applicant is in contempt of the decree of the high court and orders thereof, having failed to comply therewith and, that the applicant does not meet the threshold for the grant of an order of stay of execution, [8] _ The Applicant filed an affidavit in rejoinder and therein denied allegations of being in contempt, averred that filing the instant application is a remedy available under the law and does not amount to contempt. The applicant re-iterated that the application meets the threshold and prayed that the court be pleaded to grant the orders sought. Representation

[9] At the hearing of the application, the applicant was represented by Counsel Joseph Kyazze, assisted by Counsel Nahwera Patra and Counsel Kushaba Kennedy and the respondent was represented by Counsel Kato Tumusiime. Counsel for the Respondent, parties sought leave to adopt their written submissions and authorities cited therein, which leave was granted by the court. A

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