Semakula Stephen v Kibuuka Herbert (Civil Application 581 of 2026) [2026] UGCA 171 (28 April 2026)

THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CML APPLICATIOII NUMBER 581 of 2026 (Arising From Civil Appeal Number 362 of 2O2l SEMAKULASTEPHEN APPLICANT VERSUS KIBTruKA HERBERT RESPONDENT BEFORE: HON. MR. JUSTICE OSCAR JOHN KIHIKA, JA (Sitting as a single Judge) lntroductions This application was brought by Notice of Motion under Rules 2(2), 6121, 42121,43(lf and 44(1) of the Judicature (Court of Appeal Rules| Directlons, S.I. 13-10, and Section 12(1) ofthe Judlcature Act. It sought an order staying execution against the respondent, Kibuuka Hebert, in respect of the orders arising from High Court Civil Revision No. 2015 of 2015, pending the final disposal of Civil Appeal No. 362 of 2O2l before the Court of Appeal. When the matter carne up for hearing on the 2oth of April 2026, Mr. Semakula Stephen, the Applicant was in court. His lawyer, Mr. Kajeke was not present despite efforts by his RULING OF COURT client and the court to reach him on his known telephone contact. Neither the Respondent nor his advocates advocate Lukawgo & Co. Advocates were present in court. The application was dismissed on the day it came up for hearing and the court reserved the reasons to be given on the 22"d of April 2026. Unfortunately, due to ill health I was not able to deliver the reasons on the appointed date. The reasons a-re now advanced hereunder. Background The dispute originates from Civil Suit No. 10 of 2OO3/2o,o,6, formerly handled by the Magistrate Grade One Court of Mengo at Nateete and later referred to as having been handled at Mwanga II Court, Kampala. The applicant was dissatisfied with the judgment and decree in the lower court and challenged the same through Htgh Court Ctvtl Revieion No. 2O15 of 2O15. On 31 March 2O2I, I:Ion. Lady Justlce Olive Kazaar:we Mukwaya dismissed the applicant's revision application. The learned Judge found, among other things, that the application for revision was affected by inordinate delay, that the applicant had not properly explained the delay, that there appeared to have been concealment regarding earlier proceedings, and that the applicant was not entitled to revision of the lower court's judgment and decree. The applicant then lodged Civil Appeal No. 362 of 2O2L in the Court of Appeal. The memorandum of appeal challenges {" 2 A" U the High Court ruling principally on the ground that the learned Judge erred in dismissing the application for revision of the judgment and decree arising from Civil Suit No. 10 of 2OO3/2006. After the appeal was lodged, the respondent commenced steps toward execution. The applicant relies on a Notice of Eviction/Vacant Possession requiring him to vacate the suit property and on correspondence demanding handover of the property. He contends that the respondent's actions threaten to disturb the status quo before the appeal is heard. The applicant also filed an earlier application for stay in the High Court, Miscellaneous Application No. 2269 of 2021, which was dismissed. He has now moved this Court seeking stay of execution pending the hearing of his appeal. REASONS FOR DISMISSAL The conditions for grant of stay of execution are settled under Rule 6(2)(b) of the Judlcature (Court of Appeal Rules) Directions, which gives the Court discretion to stay execution where a notice of appeal has been lodged. The filing of an appeal does not itself operate as a stay. In Hon. Theodore Ssekikubo & Others v Attorney General & Another, Constitutlonal Appllcation No. O6 of 2O13, the Supreme Court restated the governing principles. An applicant must establish that: 1. There is a pending appeal with a likelihood of success, or at least a prima facie arguable case. The Court does not 3 determine the appeal at this stage, but must be satislied that the appeal raises serious questions fit for appellate consideration. 2. The applicant will suffer irreparable damage, or the appeal will be rendered nugatory if stay is refused. The applicant must show that execution will cause harm that cannot be adequately compensated or reversed if the appeal succeeds. 3. If the lirst two conditions are not clearly established, the Court considers the balance of convenience. The Court weighs which party is likely to suffer greater prejudice from either granting or refusing stay. 4. The application must be brought without unreasonable delay. A party seeking equitable relief must act promptly once threatened with execution. 5. Security for due performance may be required. Since stay is discretionary, Court may impose terms to protect the successful party from prejudice while preserving the applicant's right of appeal. Determinatlon of the applicatlon The term jurisdiction is delined in Block's La.w Dlctlonary, 12tt'edition, at page 1014, as ua coutt's power to decld.e a cq.ste or issue a decree." It is a foundational principle that jurisdiction is a creature of statute. Courts do not assume appellate authority unless expressly conferred. As the Supreme Court reaffirmed in Eseza Bgaklka a Natlonq.l Soclcl Sectrltg htnd, Chll 4 V Appeal No. 6 of 2027 [2025] UGSC 77, there is no such thing as inherent appellate jurisdiction; the right of appeal eists only where a statute explicitly provides for it. This constitutional and statutory architecture is clear. Article 134(2\ of the Constitution provides: nAn appeal shall lle to the Coura of Appeal from such declsloas of the Hlgh Court ds mag be prescrlbed bg lau" Section 10 of the Judicature Act, Cap. 16, reinforces this. It states as follows: u7O. Jurlsdlction of Court of Appeal An appeal shall lte to the Court, of Appealfrom declslons of the Htgh Coutt prescrlbed bg the Constlttttlon, thls Act or q.nu other laut' These provisions collectively underscore that the right of appeal must be expressly created by law. The question, therefore, is whether the Appellants possess a statutory right of appeal again st a revision order issued by the High Court. The Supreme Court has already pronounced itself on this precise issue. In Faustlne M,o,mbara a Benon Sebufisho, SCCzI .I\Io. Oa of 2027, the Court held unequivocally that no appeal lies from a revision decision of the High Court. The Court reasoned that an appeal is purely statutory. It found that Section 83 of the Civil Procedure Act, which establishes the High Court's revisionar5r jurisdiction, does not provide for an appeal. It further held that since no law prescribes an appeal from a revision decision, such a decision is final. The bd' Court finally concluded that the Court of Appeal has no jurisdiction to entertain an appeal arising from a revision order. As stated before, the Applicant's appeal stems from the dismissal of revision proceedings. Consequently, he has no right of appeal stemming from the decision of the High Court which dismissed the application for revision of the judgment and decree arising from Civil Suit No. lO of 2OO3 /2006. Revision is limited to jurisdictional error, illegality, material irregularity or miscarriage of justice. Section 83 of the Civil Procedure Act does not provide for an appeal arising out of an order of revision. The Applicant therefore has no right of appeal. Accordingly, the Applicant has failed to establish a prima facie case with likelihood of success. The first condition for stay of execution has not been satisfied. It is for the reasons advanced, that this application was dismissed. Both counsel for the Applicant and the Respondent are penalised in costs for non-appearance, which costs are to be paid to the Applicant. It is so ordered. Dated and Signed this 6 HON JUSTI KIHIKA 2026day