An Applicant seeking stay of execution must meet the conditions set out in
Order 43 rule (3) of the Civil Procedure Rules.
The condition were espoused in the case of Lawrence Musiitwa Kyazze
Vs. Eunice Businge, Supreme Court Civil Application No. 18 of 1990
but more pronounced in the Supreme Court Case of Hon Theodore
Ssekikubo and Ors VS. The Attorney General and Ors Constitutional
Petition Application No. 003 of 2014 and these include:
a) The Applicant must show that he has lodged an Appeal and it is pending
hearing and the same has merit and a high possibility of success.
b) That substantial loss may result to the Applicant unless the stay of
execution is granted.
c) That the Application has been made without unreasonable delay.
d) That the Applicant has given security for due performance of the decree
and order as may ultimately be binding upon him.
My Lord, Permit me to make my submission on each of the following
conditions as below.
a) Whether the Applicants have lodged an Appeal with merit and a
likelihood of success.
MY LORD, the Applicants in this Application were the defendants/Counter
Claimants in the Civil Suit No. …. and the said suit was decided against the
Applicants who were the defendants/counter Claimants and being
aggrieved by the decision, orders of the trial judge Appeal to Court
of Appeal vide: Civil Appeal No………. and the same is still
pending hearing before the Court of Appeal.
That the Applicants on paragraph 3 of the Affidavit in support of the
Application stated that “The Applicants felt aggrieved by the decision of the
trial Judge and filed a Notice of Appeal at the High Court in Lira on the 1 st of
November, 2024 against the whole decision and orders resulting thereunder. They
also filed a letter requesting for proceedings on the same day. They have served
the respondents with the documents.”
That the Applicants went ahead to attached the Notice of Appeal
and the letter requesting for the certified record of proceedings to
enable them formulate the grounds of Appeals as per Annexure “B”
and “C” respectively.
My Lord, the Applicants have also demonstrated in the Affidavit in
support that the Civil Appeal No……. which is pending before the
Court of Appeal has very high likelihood of success making this
Application a proper for consideration for stay of execution in this Court.
The Applicants on paragraphs …….. of the Affidavit in support of the
Application stated that “The Applicants went ahead and filed Civil Appeal
No……….. of 2024 at the Court of Appeal of Uganda which now pending pre-trial
procedures” “That the Civil Appeal raises serious questions of law and the
Applicants have good grounds of appeal which will make the appeal to succeed
which include the following among others”
My Lord, f r o m t h e a b o v e , the Applicants have demonstrate t h a t t h e r e
is a serious triable issues which merit judicial consideration and
pronouncement by the higher Courts of record by way of Appeal
and this prove the strength and chances of the intended appeal and its likelihood
of success.
Here Court’s duty is to confirm that there is a pending Appeal and need not to go
into the merit of the said Appeal as doing so would be prejudging the Appeal
before hearing it.
Hon. Justice Mulangira J, in Nalwoga Vs. Edco Ltd & Anor MA. N0. 07 of 2013
observed that; in such applications, the Court ought to review the proceedings but
desist from prejudging the appeal or interfering with the order of the court. That is
the correct position for the purpose is only to preserve the status quo so that the
appeal if successful, will not be rendered nugatory.
Section 101 of the Evidence Act Provides that whoever desires any Court to give
judgment as to any legal right or liability dependent on the existence of facts which
he or she asserts must prove that those facts exist.
That Applicants have in this regard proved the existence of the Notice of Appeal
and Memorandum of Appeal and we submit that this ground has been satisfied.
It was further held in the case of Lawrence Musiitwa Kyazze Vs. Eunice
Busingye SCCA N0. 18 of 1990( 1992) IV KALR 55 that an application for stay
of execution pending appeal is designed to preserve the subject matter in dispute so
that the right of the appellant who is exercising his/her undoubted rights of appeal
are safeguarded and the appeal if successful, is not rendered nugatory.
