THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 948 OF 2020
(ARISING FROM CIVIL APPEAL NO. 44 OF 2016)
(ARISING FROM CIVIL SUIT NO.177 OF 2010 IN CHIEF MAGISTRATE’S COURT OF NABWERU)
REBECCA NABUNYA IGA::::::::::::::::::::::::::::::: APPLICANT
SENTEZA KABALI BUNYA::::::::::::::::::::::::::::::::RESPONDENT
Before: Hon. Lady Justice Olive Kazaarwe Mukwaya
This Application is brought for stay of execution under section 33 of the Judicature Act Cap 13, section 98 of the Civil Procedure Act Cap 71, Order 22 rule 23 and 26, Order 43 rule 4 and Order 52 rules 1 and 3 of the Civil Procedure Rules S.I 71-1.
Specifically, the Applicant seeks for orders that;
- The execution of the decree and judgment of the High Court in Civil Appeal No.44 of 2016 and that of the lower court in Civil Suit No. 117 of 2010 be stayed pending the hearing and determination of the Appeal in the Court of Appeal.
- Costs of the application be provided for.
The grounds of the application as set out in the affidavit in support are briefly that;
- Civil suit No.177 of 2010 was determined against the Applicant and in favour of the Respondent. The trial Magistrate directed the Respondent to petition the High Court for cancellation of the entry of the name of the Applicant on the suit property and replace it with that of the Respondent. General damages and costs were also awarded to the Respondent.
- The Applicant was dissatisfied with the decision of the trial Court and filed an Appeal to the High Court, Civil Appeal No.44 of 2016. The Appeal was dismissed with costs on the 17th May 2017 and the judgment and orders of the trial Court were upheld.
- A Notice of Appeal was filed in the High Court by the Applicant on the 31st May 2017 but owing to negligence of her former lawyers it was not filed in the Court of Appeal. The Applicant’s new advocates have filed Civil Application No. 107 of 2020, before the Court of Appeal for extension of time within which to file the appeal.
- The Applicant was on the 21st July 2020 served with a letter from the Respondent’s Advocates demanding that she provide vacant possession of the suit property to the Respondent.
- The appeal has high chances of success since it raises serious questions of law concerning lack of jurisdiction by the trial magistrate grade one to hear and determine the matter and the failure to detect and strike out the amended Plaint which was filed without leave of court.
The Respondents did not appear in Court when this application came up for hearing. By way of letter received on the 17th August 2020, Counsel for the Respondents explained that he misread the time on the hearing notice and appeared in court later than scheduled. There is an Affidavit of Reply on the record filed on the 13th August 2020. Counsel implored this Court to consider his written submissions. In the interests of justice, I allowed the prayer.
- There is nothing to be stayed as the consequential orders for the cancellation of the certificate of title were already granted by the Hon. Lady Justice Alexandra Nkonge Rugadya on the 23rd February 2018 and have already been effected. A copy of the Order was attached and marked ‘A’.
- The Applicant did appeal against the orders of the trial magistrate and the appeal was dismissed with costs vide Civil Appeal No. 44 of 2016. A copy of the judgment and decree were attached and marked ‘B’ and ‘C’.
- The consequential orders were issued in the name of the Respondent. A copy of the Certificate of title was attached and marked ‘D’.
- There is no pending appeal as averred by the Applicant.
- The Respondent has already caused the registration of the title to the suit property into his name and there is no need for stay of execution.
The Respondent concluded that the application is barred in law and ought to be dismissed with costs.
Counsel for both parties filed written submissions which this Court considered.
Whether the Applicant has established sufficient grounds for grant of a stay of execution of the decree and judgment of the High Court in Civil Appeal No.44 of 2016 and that of the lower court in Civil Suit No. 117 of 2010?
Order 22 rule 6 provides as follows;
Where a suit is pending in any court against the holder of a decree of such court in the name of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.
The application before this court is bizarre. Civil suit 117 of 2010 was appealed against by the Applicant vide Civil Appeal No.44 of 2016. She lost the appeal. Court upheld the judgment and orders of the trial court. By the time this application was made, consequential orders following the appeal judgment had been executed. To top it all there is no appeal pending in the Court of Appeal against Civil Appeal No. 44 of 2016. There is only a reference to the Applicant’s attempt to seek to have her application for extension of time within which to file an appeal. No documentary evidence was attached to support this assertion.
In short, the application is misconceived. There are no grounds whatsoever to support the grant of the application. It has been overtaken by the events which ought to have been within the knowledge of Counsel for the Applicant if he had exercised due diligence.
I hereby dismiss the application. I shall not make any orders on costs because I am of the firm view that the Applicant was misled by her advocate on the chances of success of this application.
Olive Kazaarwe Mukwaya
20th August 2020
Delivered by email to: M/S. Jolly Mutumba & Co. Advocates for the Applicant
M/S Jambo & Co. Advocates for the respondent.