THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(EXECUTION AND BAILIFFS DIVISION)
MISCELLANEOUS APPLICATION NO. 2604 OF 2016
(ARISING FROM EMA NO. 1250 OF 2016)
(ARISING FROM CIVIL SUIT NO. 299 OF 2016)
MUGOYA MAWAZI ……………..……………..…………… APPLICANT
LUTAAYA GODFREY ………………..…………..………….. RESPONDENT
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
By this application made under S.98 CPA, S.33 Judicature Act, 0.52 rr 1 and 3 C.P.R, the Applicant sought orders of this court staying execution of the decree in Civil Suit 299/2016, pending the determination of MA 1129/2016 filed at the Commercial Court, for setting aside the decree and orders.
Costs of the application were also applied for.
The grounds of the application are that:-
- Civil Suit 299/16 from which this execution arises is being challenged under MA 1129/2016, filed at the Commercial Court.
- If stay is not granted, the said application will be rendered nugatory.
- There is a serious threat of execution of the said decree which if not stayed will cause the Applicant to suffer substantial loss.
- The Applicant has a good defence to the Respondent’s claim at the Commercial Court, with a high likelihood of success.
The application was made without delay and it is only fair and equitable that execution is stayed.
The application is supported by the affidavit of the Applicant.
There is no affidavit in reply although the affidavit of service on record dated 03.02.17 has a copy of the motion attached to it indicating that it was received by F.X. Ogwado & Co. Advocates on 18.12.16.
There is also another affidavit of service dated 28.02.17 to the effect that the same Advocates were served with hearing notice for 09.03.07, and although received, indicates that a fresh hearing date be given as Counsel would not be available.But still, no affidavit in reply was filed.
On 09.03.17, when the matter was again called for hearing, court allowed the Applicant to proceed exparte for the reasons above stated.
Counsel for the Applicant went through the application, the grounds thereof and the supporting affidavit.He emphasized that there was no affidavit in reply.
He then submitted that, the judgment and orders out of which execution arises have been challenged.And that unless a stay is granted, the application will be rendered nugatory, yet it has a high likelihood of success.There was no service of court process, he added and the judgment is being challenged.
Further that, court will grant stay execution if satisfied that irreparable damage will occur.And that court also has inherent powers in matters of stay to review evidence and determine if it is just and equitable to stay execution.
And that, it is also trite law that where a party is served and fails to respond, then court must take it that the application is not contested.Otherwise, there would be an affidavit in reply.
Counsel prayed court to exercise its inherent powers and allow application so that the ends of justice can be met.
Whether execution should be stayed.
It is not disputed that court has discretion to grant stay of execution, although the power ought to be “exercised judiciously and where it appears equitable to do so, with a view to temporarily preserving the status quo”.
The guiding principles to be considered in deciding whether to grant stay of execution are well established by decided cases.Refer to Malinga Noah and 2 Others vs. Akol Henry CA MA 203/2015.I do not find it necessary to repeat them in this case.
However, I take cognizance of the fact that “in applications of this nature, the guiding principles depend on the individual circumstances and merit of each case. The individual circumstances of each case would determine whether the case falls within the scope and parameters of any other laid down principles”. – Refer to East African Development Bank vs. Blueline Enterprises Ltd  2EA 51 (CAT).
In the present case, the Applicant seeks to set aside the decree and attendant orders in Civil Suit 299/2016 out of which the execution arises.In order to do so, he has filed MA 1129/2016 at the Commercial Court.
The Applicant contends that if stay is not granted, the application before the Commercial Court will be rendered nugatory.
However that, there is a serious threat of execution and if it is not stayed the Applicant will suffer substantial loss.
And that since the application was made without delay; it is only just and equitable that it be granted.
The application as already stated herein is supported by an affidavit.However, there is no affidavit in reply, although the Respondent was served as clearly indicated in the affidavits of service earlier referred to in this ruling.
In the circumstances, this court finds that the application of the Applicant is not contested and should therefore be allowed.This is based on the principle that “an averment on oath which is neither denied nor rebutted is admitted as a true fact”. – See the case of Nalubega Gladys and 3 Others vs. Sebulugise Henry HCCS 44/2010.
Without any affidavit in reply, it means that the application and what is stated in the affidavit in support of the Applicant are admitted as true.And this court finds that unless execution is stayed to allow the Applicant prosecute the application No. 1129/2016 pending before the Commercial Court, he is likely to suffer irreparable damage.
For all those reasons, the application is allowed and stay of execution is granted pending the disposal of MA 1129/2016 before the Commercial Court.
Costs will abide the outcome of the application before the Commercial Court.
Flavia Senoga Anglin