THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA
CIVIL APPLICATION NO. 147 OF 2014
(Arising from Civil Application No. 146 of 2014)
5 AIDS HEALTH FOUNDATION ==================== APPLICANT
-VERSUS-
DR. STEPHEN MIREMBE KIZITO ============== RESPONDENT
CORAM: HON. MR. JUSTICE KENNETH KAKURU, JA
10 (Single Justice)
RULING
This application is brought under Rules 42(1) (2) and 6 (2) of the
Rules of this Court. The applicant seeks an interim order of stay of
15 execution pending a substantive application for stay of execution.
The substantive order of stay of execution itself is pending the
hearing and determination of the appeal herein.
The application seeks to stay the order of The Hon. Lady Justice
Margaret C. Oguli-Oumo, J in High Court Miscellaneous Application
20 No. 107 of 2013, itself arising out of Civil Suit No. 25 of 2005. In
her decision dated 20th February 2014 the learned judge awarded
1
Shs.10,000,000/= as general damages to the respondent. She also
awarded him Shs. 15,000,000/= as punitive damages and costs.
This application seeks to stay the execution of the order of the High
Court pending appeal. I presume that this application was fixed
5 before me as a single justice of appeal for disposal pending the
hearing and determination of the substantive application for stay of
execution because it was assumed that a single justice of appeal
has no jurisdiction to hear and determine a substantive application
for stay of execution.
10 This presumption is based probably on the reading of Rule 53 of
the Rules of this Court.
This Rule provides as follows;-
“53. Hearing of applications
(I) Every application, other than an application
15 included in subrule (2) of this rule, shall be
heard by a single judge of the court; except that
any such application may be adjourned by the
judge for determination by the court.
20 (2) This rule shall not apply to-
(a) an application for leave to appeal or for a
certificate that a question or questions of
great public or general importance arise:
2
(b) an application for a stay of execution,
injunction or Stay of proceedings.”
5 However Section 12 of the Judicature Act stipulates as follows:-
“12(1) A single Justice of the court of appeal may
exercise any power vested in the court of
appeal in any interlocutory cause or
matter before the court of appeal.”
10 An application for stay of execution, injunction or stay of
proceedings pending an appeal in this Court is an interlocutory
matter. A single justice of this Court therefore has jurisdiction to
entertain it under the Judicature Act. The Judicature Act takes
precedence over the Rules of this Court.
15 It seems to me that Rule 53 above refers to stay of execution,
injunction and stay of proceedings pending appeal from this Court
to the Supreme Court and not application pending appeals to this
Court.
Be that as it may, Rules 6 (2) and Rule 42 of the Rules of this
20 Court seem to grant a single Justice of this court jurisdiction to
hear and determine such applications without restrictions.
It is my considered view that applications under Rules 6 (2) and 42
of the Rules of this Court may be heard and determined by a Single
Justice of this Court provided they relate to interlocutory matters.
3
I will therefore proceed to consider this application as if it were a
substantive application for stay of execution.
This court has before determined such applications and will
continue to do so. However, the High Court too has concurrent
5 jurisdiction over such matters. The High Court has jurisdiction to
hear and determine an application for stay of execution pending
appeal to this Court, an injunction, and a stay of proceedings.
The Rules of this Court require that where this Court and the High
Court have concurrent jurisdiction over a matter, such a matter
10 ought to be brought in the High court first.
In this regard Rules 42 of the Rules of this Court provides as
follows:-
“42. Order of hearing applications
(1) Whenever an application may be made either
15 in the court or in the High Court it shall be
made first in the High Court.
(2)Notwithstanding subrule (1) of this rule, in civil
or criminal matter, the court may, on
application or of its own motion, give leave to
20 appeal and grant a consequential extension of
time for doing any as the justice of the case
requires, or entertain an application under rule
6 (2) (b) of these Rules, in order to safeguard the
right of appeal, notwithstanding the fact that
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no application for that purpose has first been
made to the High Court.”
The above Rule therefore requires that such an application be
brought before the High Court first.
5 This was the decision and the guidances provided by the Supreme
Court in the case of Lawrence Musiitwa Kyazze vs Eunice
Busingye, Supreme Court Civil Appeal No.18 of 1990.
In that case the Supreme Court observed and held as follows;-
“The practice that this Court should adopt, is
10 that in general application for a stay should
be made informally to the judge who decided
the case when judgment is delivered. The
judge may direct that a formal motion be
presented on notice (Order XLVIII rule 1.),
15 after notice of appeal has been fi1ed. He may
in the meantime grant a temporary stay for
this to be done. The parties asking for a stay
should be prepared to meet the conditions set
out in Order XXXIX Rule 4(3) of the Civil
20 Procedure Rules. The temporary application
may be ex parte if the application is refused,
the parties may then apply to the Supreme
Court under Rule 5(2) (b) of the Court of
Appeal Rules where again they should be
5
prepared to meet conditions similar to those
set out in Order XXXIX Rule 4(3). However
there may be circumstances when this Court
will intervene to preserve the status quo. In
5 cases where the High Court has doubted its
jurisdiction or has made some error of law or
fact, apparent on the face of the record
which is probably wrong, or has been unable
to deal with the application in good time to
10 the prejudice of the parties in the suit
property, the application may be made direct
to this Court. It may however be that this
Court will direct that the High Court would
hear the application first, or that an appeal
15 be taken against the decision of the High
Court, bearing in mind the interests of the
parties and the costs involved. The aim is to
have the application for stay speedily heard,
and delays avoided”
20
At that time in 1990 appeals from the High Court went straight to
the Supreme Court as this court had not yet been established.
However, the position of the law has not changed. The above
decision is still good law, the recent authorities including that of
25 Margaret Kato and Joel Kato vs Nuulu Nalwoga (Supreme Court
6
Civil Application No. 11 of 2011) (unreported) which was cited
to me by learned counsel for the applicant notwithstanding.
In the Lawrence Musiitwa Kyazze case (supra) the Supreme Court
set out the conditions that must be present before an applicant may
5 file an application in this Court first, without having filed it at the
High Court.
These conditions were set out as follows;-
(1) There must be substance to the application both
in form and content;
10 This court would prefer the High Court to deal
with the application for a stay on its merits
first, before the application is made to the
Supreme Court. However, if the High Court
refuses to accept jurisdiction, or refuses
15 jurisdiction for manifestly wrong reason, or
there is great delay, this court may intervene
and accept jurisdiction in the interest of
justice.
(2) This court may in special and probably rare
20 cases entertain an application for a stay before
the High Court has refused a stay, in the
interests of justice to the parties. But before the
court can so act it must be apprised of all the
facts”
7
The reason why applications of this nature ought to be filed in the
High court first is apparent to me. It saves time and resources. The
High Court which issued the decree or order is better placed to hear
and determine the matter without delay. There are more High Court
5 judges stationed throughout the country. It takes longer for
applications of this nature to be heard and determined in this
Court.
No reason whatsoever was adduced by the applicant as to why this
application could not be heard and determined by the judge who
10 issued the decree.
No reason was advanced by the applicant as to why they did not
comply with the provisions of Rule 42 (1) of the Rules of this Court.
I have found no reason to suggest that the issues raised in this
application constitute rare and special circumstances that require
15 this Court to entertain it first.
I accordingly dismiss it.
The applicant is advised to comply with Rule 42 (1) of the Rules of
this Court and file the application before the High Court, if he so
desires.
20 The applicant shall pay the costs of this application.
This decision also applies to Miscellaneous Application No. 146 of
2014 the main application herein, which is also hereby dismissed
8
under Rule 2 (2) of the Rules of this Court with no order as to
costs.
Dated at Kampala this 22nd day of May 2014.
5 .........................................
HON. KENNETH KAKURU
JUSTICE OF APPEAL.
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