Court name
Court of Appeal of Uganda
Case number
Civil Application-2014/184
Judgment date
30 June 2014

Babwekyeka v Musimenta (Civil Application-2014/184) [2014] UGCA 23 (30 June 2014);

Cite this case
[2014] UGCA 23
Coram
Kakuru, JA

 

 

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CIVIL APPLICATION NO. 184 OF 2014

FULUMERA BABWEKYEKA………………………………..APPLICANT

VERSUS

MUSIIMENTA LYDIA……………………………………….RESPONDENT

 

CORAM:      HON. MR. JUSTICE KENNETH KAKURU, JA

                                          SINGLE JUSTICE

 

RULING

This is  an application for an interim order of  stay of the execution  of  a High Court decree  in  Kabale  High Court Civil Appeal No. 2 of  2011 delivered by The Hon. Mr. Justice J.W Kwesiga J, on           18th October  2012  in which the  learned Judge  dismissed the applicant’s appeal following a preliminary objection that had been raised by the respondent.

The brief background to this application is as follows:-

The applicant filed a suit No. 172 of 2009 at the Chief Magistrate’s Court in Kabale in which she sought a number of orders and declarations.  The suit was in respect of a claim for recovery of land. It was also in respect of other matters related to the estate of one Bernadette Baruhirabusha.

That suit was dismissed by her worship Deborah Wanume, on 9th February 2011.

 

 

The applicant herein being dissatisfied with the Judgment and decree of the Magistrate appealed to the High Court, at Kabale, vide High Court Civil Appeal No. 2 of 2011.

It appears that, at the High Court the parties were ordered to file written submissions after which Judgment would be delivered on notice.  The applicant did file written submissions. The respondent too filed written submissions but the applicant claims that neither she nor her counsel was served.

The court went on to deliver its Judgment on 18th October 2013. The applicant also claims she was never served with Judgment notice and as such she was not aware that the Judgment had been delivered until the time for filing an appeal had lapsed.

The applicant then filed an application in this court for leave to file a notice of appeal out of time. The same was granted by the Registrar of this court. She also filed this application.

In the meantime on 30th January 2014  the  respondent  through a court  bailiff  one  Richard  Muhanguzi issued  to the applicant  a notice of  eviction apparently in execution of the  decree of the Chief  Magistrate‘s  Court . The notice required the applicant to vacate the suit land within 7 (seven) days.

On 13th  November 2013 the Chief Magistrate  had  issued  to the  applicant  a  notice  to show  cause  why  a warrant  of arrest  should not issue  in execution  of  the Chief  Magistrate‘s court’s decree in Civil Suit No. 172  of 2009.

 

 

The notice required the applicant to appear in court on 16th January 2014.

The applicant then filed this application in this court seeking an interim order of stay of execution together with Court of Appeal Civil Application No. 183 of 2014 for a substantive order of stay of execution.

When this application came up for herring, the applicant was represented by Ms. Kasande-Murangira.  Neither the respondent nor her counsel was in Court. This court allowed the applicant’s counsel to proceed in the absence of the respondent as it was satisfied that the respondent had been duly served.

In the notice of motion herein the applicant seeks the following orders:-

“ a. Interim Stay of Execution of the Ruling / Decree in Civil Appeal no. 2 of 2011 be granted pending the hearing of the main application for stay of execution. Hereto attached is the copy of the Ruling /decree marked "JD".

 

  1.    Costs of this application be in the Cause.”

 

The grounds upon which this application is based are also set out in the notice of motion as follows;-

               

I          That the Magistrate's Court of Kabale Grade I delivered Judgment in Civil Suit No. 172 of 2009 against the applicant on the 9th day of

February 2011.

 

 

 

 

The Judgment and the uncertified decree are hereto attached and marked "JJ".

 

II           The applicant appealed to the High Court of Uganda

at Kabale against  the entire decision in civil appeal no. 2 of 2011. The said Court passed the judgment against the applicant without her knowledge. Hereto attached is the memorandum of appeal marked "MA".

 

III             Substantial loss shall occur to the applicant if this application is not granted.

 

IV             The applicant's miscellaneous application no 183 of 2014 for stay of execution which is hereto attached and marked "ME" filed in this Honourable Court has a high chance of success

 

V              It is fair and in the interest of justice that this application be granted.

 

 

In her affidavit in support of the notice of motion. The applicant deponed in paragraph 7 thereof as follows

7      “THAT I will suffer Substantial loss if this application is not granted as the bailiffs are threatening to evict me and my relatives from the suit land where we derive our livelihood. A copy of the letter from the bailiffs is hereto attached and marked "C". That my above stated lawyers wrote the Ag. Deputy Registrar, High Court of Uganda
at Kabale and the said Court bailiff warning them of unlawful execution, in vain. Hereto attached is the letter from my lawyers marked "FL".”

 

 

It appears clearly that the applicant herein by this application seeks to stay the decree of the High Court in Kabale Court Civil Appeal No. 2 of 2011 as set out in the notice of motion.

However, that decree simply dismissed the appeal. No other order was made in the result that, it left the decree of the Magistrate’s Court standing.

The respondent then sought to execute the decree of the Magistrate’s Court.  Paragraph 7 of the affidavit the applicant set out above clearly indicates that the threatened execution is in respect of Magistrate‘s Court’s decree and not in respect of the decree of the High Court.

On the other hand this application is for stay of execution of the High Court decree. The respondent has not sought to execute this decree. In any event it is not a decree capable of being executed as the High Court simply dismissed the appeal. Therefore, if this application is granted the threatened execution would still go ahead as there is no application before this court for stay of execution of the Magistrate’s Court’s decree.

I find that this application therefore is misconceived and without merit.

This application therefore fails and is hereby dismissed.

 

 

 

 

Since neither the respondent nor her counsel appeared before me and since no reply to this application is on record I make order as to costs.

I must clarify that I have entertained this application as a single Justice of this court under Section 12 of the judicature Act. Under that law a single Justice of this Court has jurisdiction to hear and determine any interlocutory matter before this court.

An application for a substantive order of stay of execution is an interlocutory matter.

Accordingly I also make an order dismissing the substantive  application for stay of execution  herein Court  of Appeal  Civil Application No. 183  of 2014 filed by the  applicant seeking  similar  orders and based on the  same facts for the reasons I have given in this application.

I also make no order as to costs in respect of that application.

 

Dated at Kampala this 30th day of June 2014.

 

 

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HON. MR. JUSTICE KENNETH KAKURU

JUSTICE OF APPEAL