Kiweewa Shaban v Mulondo Nasur (Civil Application No. 49 of 2025) [2025] UGCA 265 (8 August 2025)

5 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO. O49 OF 2025 (Arising.from Civil Appeal No. l06l o.f 2023) (Arising.from High Court ('ivil Suit No. 181 d 2017) KIWEEWA SHABAN.,...... . APPLICANT VI]RSLJS MULONDO NASUR RESPONDENT Introduction [l]This application was brought under Rules 6(2Xb),43(l) & (2) and a(l) of the Judicature (Court of Appeal Rules) Directions, SI l3-10, for Orders that; a. An Order for stoy of execution doth issue restreining lhe Respondent, his sertonls, agents and/or any Wrson acling on his behalffrom executing and/or enforcing the detee of Her Ladyship Hon. ,Iuslice Cornelio Kakooza Sabiiti, in Mulondo Nasur vs Namara Aisha & Anor pending the determination and/or disposal of the Applicant's appeal vide Court of Appeal Civil Appeal No. l06l of2023. b. Costs of this application be borne by the Respondent. [2] The application is premised on the grounds that: a) Being dissatisfied with the whole judgment and decree vide HCCS No. 181 of20l7, the Applicant lodged an appeal ogainst lhe same vide CACA No. l06l o.f 202j but the some is pending heoring and has a high likelihood of success. b1 llhereas execution proceedings are in advanceel stages, lhe persons targeted are lhe Appellants vide the said appeal and the properly targeted.for the said execution is the exact property 10 15 20 25 30 RULING OF CHRISTOPHER GASHIRABAKE. JA (SINGLE JUSTICE) Page 1of 11 5 that is the subjecr of Civil Appeal No. 1061 of2023 pending before lhe Court of Appeal of Ugonda at Kampala. c) Execution of the Judgment/decree o.f lhe learned ,ludge shall render the appeal belbre the Courl of Appeal of Uganda at Kampala nugatory, albeit lhal lhe same has a high likelihood of d) Execution of the Judgment/decree of the learned Judge shall occasion substantial loss lo lhe Applicant thol connol be atoned for by an award ofdamages. e) The Applicant's applicationJbr o stay ofexecution ofthe instanl proceedings was mode lo the High Court, but the same was dismissed. U The instanl application has been instituted without undue delay. 9 The grant of this applicalion shall not occasion any prejudice lhat cannol be atoned by an award of damages lo the Respondent decree holder, but will aford the Courl of Appeal of Uganda at Kampala an opportunily to hear and delermine the merits of the Wnding appeal. h) The balance of convenience .favours lhe gront of this application. i) 1l isfair, reasonable, equiloble and in the interest ofsubslantive justice that this Honorable Court be pleosed to order lhat the execulion of the saitl judgmenl/ decree and orders be stayed pending the determinalion and/or disposal of the appeal. [3] The application was opposed by the Respondent through the affidavit of MULONDO NASUR, that the appeal filed in this Court is frivolous, vexatious, nugatory and that it is a total waste of Court's valuable time. That the execution was complete and there was nothing to stay. Representation [4] At the hearing of the application, Mr. Ayebazibwe Isaac represented the Applicant. Mr. Mukwaya Fauzi represented the Respondent. The parties filed submissions. Page 2 of 11 10 15 20 35 30 5 Brief facts. [5] The background of this application stems from Civil Suit No.l84 of 2017, wherein the Respondent sued the Applicants for trespass to his property, an order fbr removal of gates blocking the access road leading to the Respondent's (plaintiff land, comprised in Kyadondo Block 262 Plot I 190, in the head suit, among others. The matter was heard on merit and judgment was entered in favour ofthe Respondent (plaintiff). [6] Being dissatisfied with the judgment of the Court, the Applicants filed a Notice of Appeal and subsequently the Memorandum of Appeal. It is alleged that the execution has been partially fulfilled. The Applicant filed this application to stay the orders arising from Civil Suit No. 184 of 2017 .15 Submissions bv Counsel for the Applicant 20 [7] Counsel cited section 98 of the CiviI Procedure Act to the effect that this court should invoke its inherent power to grant this application. Counsel cited Lawrence Musiitwa Kyazze vs Eunice Busingye, SCCA No 1990, in which it was observed that an application for stay of execution pending appeal is designed to preserve the subject matter in dispute so that the right of the appellant who is exercising his/her undoubted right of appeal is safeguarded. [8] He further submitted that conditions for the grant of a stay of execution are provided under O.43 r4(3) of the Civil Procedure Rules and espoused in the case of Lawrence Musiitwa Kyazze vs Eunice Busingye [supral and further pronounced in the Supreme Court Case ofHon. Theodore Ssekikubo & Ors vs the Attorney General & Ors, Supreme Court Constitutional Application No.6 of 2013. [9]Counsel submitted that the Applicant as required had lodged a Notice of appeal, as was held by the Supreme Court in Dr. Ahmed Muhammed Kisule vs Greenland Bank, Misc. Application No 07 of 2010. Counsel submitted 25 30 PaBe 3 of 11 10 5 that the Applicant averred in paragraph 2 of the affidavit in support that they had filed a Notice of Appeal. t l0l Regarding substantial loss, Counsel submitted that it is trite that an application for stay of execution ought to be granted where the court is persuaded that substantial loss would arise from not granting the same. Counsel argued that execution has ensued and a notice of demolition of part of the Applicant's fence has been served upon him and their arrest and detention in civil prison in execution thereof. Counsel relied on the decision in Francis Hansio Micars vs Nuwa Walakira SCCA No. 9 of 1990' where the court observed that 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 rendered nugatory. t11] Counsel additionally argued that when they break down the wall, it shall make the remaining one weak and also compromise their security. It was further submitted that the arrest and detention in Civil prison of the Applicant shall occasion substantial loss owing to the fact that it will severely negatively impact the welfare of minor children in his custody and the adult members of their family that are wholly dependent on him, the Applicant being the sole breadwinner for them. Counsel submitted that no amount of damages can be awarded to atone for the impact of the execution of the said orders on the innocent minors and the adult members of the Applicant's household who are wholly dependent on him. U2l On whether the appeal has a likelihood of success, Counsel submitted that the Memorandum of Appeat raises triable issues in the seven grounds enumerated therein. Counsel cited Cotton L.J in Wilson vs Church [18791 12 Ch. D 45c) where the House of Lords held that, "Ilhere a porty is appealing. exercising his undoubted righl of appeal, this Court ought lo see lhat the appeal, if successful, is nol nugatory. " 10 15 20 25 Page 4 of 11 30 5 [ 3] Counsel prayed that this Court find that the Memorandum raises triable I SSUCS. 10 [4] Counsel submitted that this Honourable Court be pleased to find that the condition for security for due performance has been satisfied, thus making the appeal meritorious and standing a likelihood of success. Counsel cited Kyambogo University vs Prof Isaiah Omolo Ndiege, Court of Appeal civil application no.341 of 2013 [15] As to whether the instant application has been made without unreasonable delay, Counsel submitted that the leamed Ag. Deputy Registrar on the lSth October 2023 ordered the giving of vacant possession to the Respondent and a warrant of demolition. On 23rd October 2023, the instant application was filed on ECCMIS, endorsed and served on the legal Counsel for the Respondent on 2lst December 2023. On 29th August 2024, the High Court dismissed the Appellant's application for stay of execution. Counsel submitted that they continued to follow up the request for certified copies of the proceedings until they were availed on l6th December 2024, and a certificate of correctness of the same was granted on 27th January 2025. Counsel submitted that the application was filed within reasonable time. 15 20 Su bmissio ns bv Counsel for the Resnondent 25 [16] Counsel submitted that he who alleges must prove as provided for under Section 101 of the Evidence Act. I l7] Counsel cited O.43 r 4 ( 1 ) of the Civil Procedure Rules to the effect that an appeal does not operate as a stay of proceedings under a decree or order appealed from except so far as the Court may order, nor shall execution ofa decree be stayed by reason only ofan appeal having been preferred from the decree; but the Court may for sufficient cause order stay of execution ofthe decree. Counsel submitted that the conditions for the grant of a stay of 30 Page 5 of 11 5 execution are provided for under O.43 r 4 (3) of the Civil Procedure Rules. Counsel submitted that the same grounds were expounded in Kyambogo University vs Prof Isaiah Omolo Ndiege, Court of Appeal Civil Application No.34l of 2013. !8] Regarding whether the appeal has a likelihood of success, Counsel submitted that the application herein and the appeal are frivolous, vexatious, unfounded, lack merit and have tumed out to be a mere moot. Counsel argued that the Applicant cannot claim to own anlthing, for no authority has conveyed the same to him. [ 9] On whether the Applicant will suffer substantial loss, Counsel submitted that the execution has been partially satisfied and the Applicant did not suffer any prejudice as alleged; instead, he benefited from the execution. [20] As regards deposit of security for due performance, Counsel submitted that the Appticant has not demonstrated to court that he is ready to fumish security for due performance ofthe decree and as such, this ground fails hence leaving the application having no merit and lacks valid grounds for the grant of the stay of execution. Counsel cited Kyambogo University vs Prof. Isaiah Omolo Ndiege(supra), where the same was overemphasized. 15 20 Reioinder 25 [21] Counsel rejoined that an agreement between parties cannot alter the decision of the court. 122] Counsel reiterated the earlier submission regarding the demolition, making the remainder of the wall weak. l23l Counsel argued that the Applicant is at risk ofbeing arrested. Counsel also argued that the argument by Counsel for the Respondent that the Applicant is in contempt of court orders is not supported by any evidence in the affidavit. 30 PaBe 6 of 11 10 5 124) Counsel argued that the application is not moot because the decree remains valid, and the warrant of arrest is active. Counsel submitted that the law is clear that an appeal must not be rendered nugatory by premature execution. counsel cited Haji Ali cheboi vs Kiroko Mesulamu, Miscellaneous Civil Application No. 105 of 2014) [20141 UGCA 24, where the Court of Appeal, held that where execution would defeat the purpose of an appeal, a stay must be granted. [25) Counsel submitted that the Applicant has expressed willingness to abide by any security conditions imposed by this Court. However, the Respondent has already benefited from a partial satisfaction of the decree making additional security unnecessary and inequitable. Consideration of the Court. [26) 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; 2)Subject to subrule (1) of this rule, the institution o/an appeal shall nol oryrate lo suspend ony sentence or to slay execution, but the courl may- (b)ln any civil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stay of execulion, an injunction, or a stay of proceedings on such terms as the court may think just. l27l In Hon. Theodore Ssekikubo & Others vs. The Attorney General and 4 others,(supra), the Supreme Court laid down the principles to guide the Court in granting a stay of execution. It held that; Page 7 of 11 10 15 20 30 "Rule 6, Suspension ofsentence ond sla! of execution 25 "(l) The application must establish that his appeal has a likelihood of success, or a primct .facie case of his right to oPPeal. (2) It must also be established thal the Applicant will sufer ineparable damoge or lhot the appeal will be rendered nugalory ifo stay is not granted. (3) If I and 2 above have not been established, lhe Court must consider where the balance of convenience lies. (1) That the Applicant must also eslablish that the application v,as instituled withoul delay." [28] The purpose of the grant of stay of execution is to help preserve the status quo until the merits of the appeal are handled by the full bench. This court has the task of establishing whether the Applicant made out the conditions for the grant ofa stay ofexecution. [29] I have carefully considered the submissions of both Counsel, the pleadings and the law. [30] In considering whether there is a likelihood of success of the appeal, this court will only look at the grounds of the appeal as enlisted in the Memorandum of Appeal, without necessarily considering the merits of the appeal. The grounds in the Memorandum of Appeal are that; l. The learned trial Judge erred in law and facl when she failed to properly evoluate lhe evidence on record, thus arriving al o wrong conclusion lhat lhere was no justification for lhe defendants to erect lhe gate on lhe access to land comprised in Kyadondo Block 262 Plot 1190 land al Saloama. 2. The leorned trial Judge erred in low and fact when she .failed to properly evaluale lhe evidence on record, thus orriving at a wrong conclusion that the de.fendants trespassed on the plainliffs lond 3. The learned trial Judge erred in low and fact when she rejected the submissions by the defendanls 10 15 20 25 30 35 Page 8 of 11 challenging the accuracy of PEX I as submissions from the Bar. 4. The learned trial Judge erred in law and fact when she disregarded the major inconsislencies in the testimony given during the locus in quo visil and that given lin courl. 5. The learned triol Judge erred in lau' and fact when she ordered the defendants to meel part of lhe cost of constructing a drainage channel for the Plaintiff's plot. 6. The leorned trial Judge erred in.fact and law vhen she held that the defendants octed insolently and condemned lhem to punitive damoges. 7. The learned trial Judge erred in fact and law when she made an excessive award of general damages. [3 I ] The Memorandum of Appeal raises triable issues, like trespass, inconsistencies, and excessive damages granted by the trial court. All these are triable issues that warrant consideration by this court. I find that the appeal has a likelihood of success. [32) On whether the Applicants would suffer irreparable damages if a stay is not granted, Counsel argued that the decree does not speciry the size and extent of the Applicant's wall that ought to be demolished. Arguing that this would lead to excessive execution. It was also argued that the demolition would make the wall weak and also expose the family to danger. t33l In Absalom Dova vs Tarbo Transporters [20131 eKLR, the court held that; "The discretionary relief of stoy of execution pending appeal is designed on the bosis that no one would be worse of by virtue of an order of the Court, as such an order does not introduce any disadvantage bul administers the justice that the case deserves. This is in recognition that both parties have rights; the appellant 10 15 20 25 30 35 Page 9 of 11 to this upryal, v,hich includes the prospect that the appeal will not be rendered nugalory: and lhe decree holder n the decree, which includes full bene.fits under the decree. The court, in balancing the hlo compeling righls, .fbcuses on their reconciliation. " [34] The court while balancing the interest of the Applicant not to be left worse offand ensuring that the decree holder gets the full benefit ofhis decree must ensure that no party would suffer undue prejudice. At the trial Court the Applicant in this matter was sued with the wife. However, in abid to bring reconciliation the wife who was party to the original suit opted to having an agreement with the Respondents. In this agreement the wife paid some money with regard to the demolition which is not disputed by the Applicant. It is also not in dispute that the Applicant has substantially paid some of the damages awarded to the Respondent at the trial court. Furthermore, the argument that there is a threat ofexcessive execution cannot stumd, because the demolition was completed and also the judgment was clear on the measurements to be demolished. It was clearly stated at page 12 of the judgment that the perimeter wall encroaching on the Respondent's land is l. 64 meters at the right hand end of the plot and 1190 was to be demolished. [35] In Wilson Mukiibi vs James Semusambwa' SCCA No.9 of 2003, it was held that it must be shown by evidence that if execution proceeds, the Applicant will suffer irreparable loss. This involves proving that the loss would be of real worth or value, not a mere nominal loss. The loss also needs to be of a nature that cannot be easily undone once inflicted. One that cannot be atoned for in damages. (See American Cynamid Co Ltd. vs Ethicon Ltd ll97sl AC 396. [36] I have no basis to find that the Applicant will suffer irreparable damages, considering the facts of this case. The Applicant has failed to demonstrate that he would suffer irreparable damages if the stay is not 10 15 20 30 Page 10 of 11 5 granted and the appeal succeeds. Furthermore, the Applicant has not demonstrated that the Respondents cannot compensate them when the appeal is found in their favour l37l Consideringthe evidence on record, the Applicant haspaid asubstantial sum of the damages and demolition has already occurred, the balance of convenience is in the interest of the Respondent. [38] I am empowered under Rule 2(2) to make such orders as may be necessary for attaining the ends ofjustice or to prevent abuse ofthe process ofany such Court. I find that it is in the interest ofjustice that this application is denied. [39] I find that this application has no merit. It is hereby dismissed. Decision The application is accordingly dismissed, with costs in the cause. 10 15 I so order. 20 Dated, signed and delivered at Kampala this 2025. * Day u9 ol F C. GASHIRABAKE JUSTICE OF APPEAL Page 11 of 11