THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(LAND DIVISION)
Miscellaneous Application No…..of 2022
Arising out of
(Miscellaneous Application No……of 2022)
Arising out of
(Civil Appeal No. 16 of 2022)
(Arising out of Land suit No.001 of 2018 at the Chief Magistrate
Court of Mukono at Nakifuma)
1. NAMALWA SPECIOZA
2. NAMUBIRU SHARON (Beneficiaries and intended Administrators of
the estate of the late Nakagwa Edith) …APPLICANTS/APPELLANTS
VERSUS
HAJI KITAKA KAVULU BADRU…………………………RESPONDENT
CHAMBER SUMMONS
(Under Article 126 (2) (e) of the Constitution of the Republic of
Uganda,1995, S.33 of the Judicature Act Cap 16 , S. 98 of Civil
Procedure Act Cap 71,Order 43 Rule 4 (5) of the Civil Procedure
Rules SI.71-1)
LET ALL PARTIES CONCERNED attend the learned judge in chambers on
the………day of ……………2022 at …………O’clock in the forenoon or soon
thereafter as Counsel for the Applicant can be heard on an Application for
orders that:
1. The interim order be issued staying execution of the judgment and
decree in Land civil suit No.001 of 2018 passed in the Chief
Magistrate Court of Mukono at Nakifuma pending the hearing and
determination of the substantive application for stay of execution.
2. Costs of the application be provided for.
TAKE FURTHER NOTICE that the grounds of this application are contained
in the affidavit attached hereto sworn by second applicant but in brief are:
a) THAT the applicants filed a notice of appeal and an appeal in this
court.
b) THAT the applicant have also filed a substantive application for stay of
execution pending the hearing and determination of the appeal in this
court which is likely to succeed.
c) THAT there is a serious or eminent threat of execution of the
judgment and decree and if an interim order staying execution is not
granted the hearing and determination of the main application for stay
of execution and appeal would be rendered nugatory.
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d) THAT the applicants shall suffer substantial loss if the interim order
for stay of execution is not granted.
e) THAT it is in the interests of justice that this application be granted by
this Honourable court.
Dated at Kampala this……………………………day of…………………………2022.
……………………………………………………
COUNSEL FOR THE APPLICANTS
GIVEN under my hand and seal of this honorable court this……….day
of……………………..2022.
………………………………………
REGISTRAR
DRAWN & FILED BY:
M/S LUFUNYA ASSOCIATED ADVOCATES
EXPLORER SUITES, SUITE NO. 3
PLOT 92
P.O.BOX 23539
WILLIAM STREET
KAMPALA
TO BE SERVED UPON:
M/S SSERYAZI MUGABI & CO. ADVOCATES
CENTENARY BANK BUILDING, OPPOSITE COLLINE HOTEL
PLOT 22 JINJA ROAD, 2ND FLOOR SUITE B11
P.O. BOX 12611,
KAMPALA
2
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(LAND DIVISION)
Miscellaneous Application No…..of 2022
Arising out of
(Miscellaneous Application No……of 2022)
Arising out of
(Civil Appeal No. 16 of 2022)
(Arising out of Land suit No.001 of 2018 at the Chief Magistrate
Court of Mukono at Nakifuma)
1. NAMALWA SPECIOZA
2. NAMUBIRU SHARON (Beneficiaries and intended Administrators of
the estate of the late Nakagwa Edith)…APPLICANTS/APPELLANTS
VERSUS
HAJI KITAKA KAVULU BADRU…………………………RESPONDENT
AFFIDAVIT IN SUPPORT OF THE APPLIACTION
I NAMUBIRU SHARON of M/s Lufunya Associated Advocates, Plot 92, P.O.
Box 23539, William Street, Kampala do hereby make solemn oath and state
as hereunder:
1. THAT I am a female adult Ugandan of sound mind, a resident of
Kauga Village, Nsuube /Kauga Parish, Mukono Division County,
Mukono District a Beneficiary and intended Administrator of the estate
of the late NAKAGWA EDITH (hereinafter referred to as the
deceased) duly competent to swear this affidavit in that capacity (see
copy of my National I.D card attached marked “A”).
2. THAT the deceased was a defendant in land civil suit No.001 of
2018 in the Chief Magistrate Court of Mukono at Nakifuma and
judgment was passed against her on 23rd June 2022.
3. THAT dissatisfied with the whole of it, on 4th July 2022, the
deceased through her lawyers lodged a notice of appeal in this court’s
registry at Mukono, extracted a decree and requested for certified
record of proceedings which were availed to her lawyers on 6th July
2022(see copy of the notice of appeal, decree and record of
proceedings attached marked “B”, “C”&“D” respectively).
4. THAT before her lawyers could file the present appeal, she died on
26th July 2022 and was buried the following day on the suit land
which is the subject matter of the present appeal.
5. THAT I and the first applicant who is the deceased’s first born
daughter being beneficiaries and intended administrators of the
deceased’s estate through the deceased’s lawyers, we filed Civil
Appeal No. 16 of 2022 on 8th August 2022 in this court, although
copies of the Memorandum of Appeal and an application for
substitution of our names in place of hers filed together have not yet
3
been returned to us, but we are in possession of copies of
submissions for the application bearing the number of the appeal and
said application (see copy of the submissions attached hereto
marked “E”).
6. THAT we have filed Miscellaneous Application No………….of
2022 in this court for stay of execution of the aforementioned
judgment and decree which has a likelihood of success pending
hearing and determination in this court (see copy of the said
application attached hereto marked “F”).
7. THAT there is a serious and imminent threat of execution of the
judgment and decree as the respondent has already initiated the
process of execution by applying in the trial court for an eviction order
against our relative which is scheduled to be heard on 31st August
2022 at 2:30 pm (see copy of the said application attached
hereto marked “G”).
8. THAT substantial loss shall be suffered by me, the first Applicant and
other beneficiaries of the estate of the deceased if an interim stay of
execution is not granted by this honourable court pending the hearing
of the main application for stay of execution.
9. THAT I swear this Affidavit in support of an application for an interim
stay of execution pending the hearing and determination of
substantive application for stay of execution.
10. THAT it is in the interests of justice that this Honourable Court grants
this application.
11. THAT whatever is stated herein is true and correct to the best of my
Knowledge and belief, save for the contents whose source of
information is herein disclosed.
SWORN at Kampala by the said
NAMUBIRU SHARON this…….day of…………………2022
…………………………………….
DEPONENT
BEFORE ME
……………………………………………….
COMMISSIONER FOR OATHS
4
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(LAND DIVISION)
Miscellaneous Application No…..of 2022
Arising out of
(Miscellaneous Application No……of 2022)
Arising out of
(Civil Appeal No. 16 of 2022)
(Arising out of Land suit No.001 of 2018 at the Chief Magistrate
Court of Mukono at Nakifuma)
1. NAMALWA SPECIOZA
2. NAMUBIRU SHARON (Beneficiaries and intended Administrators of
the estate of the late Nakagwa Edith)…APPLICANTS/APPELLANTS
VERSUS
HAJI KITAKA KAVULU BADRU…………………………RESPONDENT
APPLICANT’S SUMMARY OF EVIDENCE
The Applicants/Appellants shall rely on the affidavit deponed by the second
Applicant and annextures to it as evidence to prove that an interim order
staying execution should be granted by this honourable court in the interests
of justice pending the hearing and determination of the substantive
application.
List of Witnesses
1. The Applicants/Appellants
2. Any others with leave of Court
List of Documents
1. All Annextures attached to the Affidavit on this application
2. Any others with leave of Court.
List of Authorities
1. The 1995 Constitution of the Republic of Uganda
2. The Civil Procedure Act Cap.71
3. The Succession Act Cap 162
4. The Judicature Act Cap. 13
5. The Evidence Act Cap 6
6. The Civil Procedure Rules S.I 71-1
7. Case Law
8. Any others with leave of Court.
DATED at KAMPALA this …………………….day of …………….2022.
………………………………………….
COUNSEL FOR THE APPLICANTS
5
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(LAND DIVISION)
Miscellaneous Application No…..of 2022
Arising out of
(Miscellaneous Application No……of 2022)
Arising out of
(Civil Appeal No. 16 of 2022)
(Arising out of Land suit No.001 of 2018 at the Chief Magistrate
Court of Mukono at Nakifuma)
1. NAMALWA SPECIOZA
2. NAMUBIRU SHARON (Beneficiaries and intended Administrators of
the estate of the late Nakagwa Edith)…APPLICANTS/APPELLANTS
VERSUS
HAJI KITAKA KAVULU BADRU………………………..RESPONDENT
APPLICANTS’ WRITTEN SUBMISSIONS
My Lord, this is an application for an interim order for stay of execution of
judgment and decree brought by way of a Chamber Summons under Article
126 (2) (e) of the Constitution of the Republic of Uganda,1995, Section 33 of
the Judicature Act Cap 16 , Sections 29(2) and 98 of Civil Procedure Act Cap
71,Order 43 Rule 4 and 5, and the applicants are seeking for orders that; An
interim order be issued staying execution of the judgment and decree in
Land civil suit No.001 of 2018 passed in the Chief Magistrate Court of
Mukono at Nakifuma pending hearing and determination of the substantive
application for stay of execution and that costs be provided for.
The application is supported by an Affidavit deponed to by the second
Applicant in which the grounds for it are more buttressed but in brief they
are;
a) THAT the Applicants have filed a notice of appeal and an appeal in this
court.
b) THAT the Applicants have also filed a substantive application for stay
of execution in this court pending hearing and determination which is
likely to succeed.
c) THAT there is a serious or eminent threat of execution of the
judgment and decree and if an interim order staying execution is not
granted the hearing and determination of the main application for stay
of execution pending the hearing of the appeal would be rendered
nugatory.
d) THAT the applicants shall suffer substantial loss if the interim order
for stay of execution is not granted.
e) THAT it is in the interests of justice that this application be granted by
this Honourable court.
6
Justice Arach Amoko while handling an application for an interim stay of
execution of a decree in the Supreme Court case of China Henan
International Cooperation Group Company Limited vs Justus
Kyabahwa Civil Application No. 30 of 2019 stated that;
“In cases of urgency, this court is empowered to issue interim
orders as a stop gap measure to ensure that the substantive
application is not rendered nugatory.” This power is granted to
court………………in order to achieve the ends of justice”
My Lord, the principles for the grant of an interim order for stay of execution
were set out in the Supreme Court case of Hwan Sung Industries Limited
vs Tajdin Hussein and Others, Civil Application No.19 of 2008 where
Okello JSC, (as he then was) said;
“For an application for an interim order of stay, it suffices to show
that a substantive application is pending and that there is a serious
threat of execution before hearing the substantive application. It is
not necessary to pre-empt the consideration of matters necessary in
deciding whether or not to grant the substantive application for
stay.”
The Supreme Court in the case of Patrick Kaumba vs Ismall Dabule Civil
Application No.3 of 2018 SCCA, set out conditions to be considered while
dealing with an interim order for stay of execution:-
1. There must be on record a competent notice of appeal.
2. There must be a substantive application.
3. There must exist a threat of execution.
Applying the above to the instant application, my Lord in paragraph 4 of the
Affidavit deponed by the second applicant in support of this application. The
deponent averred that;
“….on 4th July 2022, the deceased through her lawyers lodged a
notice of appeal in this court’s registry at Mukono….”
She even attached the said notice of appeal to the Affidavit marked “B” and
in paragraph 5 of the aforementioned affidavit she has clearly averred that;
“….through the deceased’s lawyers, we filed Civil Appeal No. 16 of
2022 on 8th August 2022 in this court, although copies of the
Memorandum of Appeal and an application for substitution of our
names in place of hers filed together have not yet been returned to
us but we are in possession of copies of submissions for the
application bearing the number of the appeal and said application.”
She attached a copy of the said submissions for the application marked “E”
as proof that there is already an appeal which was filed in this court since the
submissions bear its number.
Regarding principle number two for the grant of an interim stay of execution
that there must be a substantive application, My Lord in paragraph 6 of the
said Affidavit attached to this application, the deponent further averred that;
7
“………..we have filed Miscellaneous Application No………….of 2022
for stay of execution of the aforementioned judgment and decree…”
She even attached a copy of the said application to the Affidavit marked “F”
as proof of existence of a substantive application for stay of execution filed
and pending hearing and determination in this court.
On the last ground of existence of serious threat of execution, the second
Applicant in paragraph 7 of her deposed affidavit averred that;
“…the respondent has already initiated the process of execution by
applying in the trial court for an eviction order against our relative
which is scheduled to be heard on 31st August 2022 at 2:30 pm.”
In proof of that, she attached a copy of the application filed in the trial court
for an eviction order against their relative to be evicted from the decreed
property marked “G”.
Paragraph (c) of the decree extracted from the trial court attached hereto
marked “C” states that;
“© An eviction order does issue against the defendant, her agents,
servants and any one claiming title from her.”
My Lord Justice Opio Aweri in the case of Osman Kassim Ramathan vs
Centuring Bottling Company Limited Civil Application No.35 of 2019
stated that;
“Execution is a process not an event……………..………in its widest
sense signifies the enforcement of or giving effect to the judgments
or orders of justice. Black’s Law Dictionary 5 th edition defines
execution in the following terms:-
“……………..it is the carrying out of some act or course of conduct to
its completion and putting into force, completion, fulfillment, or
perfecting of anything or carrying into operation and effect”.
Applying the above to the instant facts of this application, it should be
concluded that there exists a serious and imminent threat as the respondent
is trying to give effect to the judgment, decree and orders of the trial court
and this condition is also satisfied by the applicants justifying the grant of an
interim order for stay execution of the judgment and decree pending the
hearing and determination of the substantive application filed in this court.
In the Supreme Court case of China Henan International Cooperation
Group Company Limited vs Justus Kyabahwa Justice Arach Amoko while
handling an application for an interim stay of execution of a decree stated
that;
“In cases of urgency, this court is empowered to issue interim
orders as a stop gap measure to ensure that the substantive
application is not rendered nugatory.” This power is granted to
court………………in order to achieve the ends of justice”
8
And In the Supreme Court case of Gashumba Maniraguha vs Sam
Nkundiye SCCA No.24 of 2015 court found that the applicant in that case
had met the criteria for the grant of an interim stay of execution after
satisfying the 3 conditions mentioned herein above.
My Lord, the second applicant’s averments in paragraphs 3, 5, 6 and 7 of
her deposed Affidavit attached to this application supported by annextures
“B”,”E”,”F” and “G” are evidence enough justifying the granting of this
application for an interim stay of execution pending the hearing and
determination of the substantive application filed and pending hearing in this
court, therefore I pray that this honourable court in the interests of justice
should allow this application and grant the interim order staying execution.
Thus in the Supreme Court case of Osman Kassim Ramathan vs
Centuring Bottling Company Limited Cited (supra) Justice Opio Aweri
stated that;
“In a nutshell an interim order is a first aid intervention pending a
substantive intervention.”
DATED at KAMPALA this …………………….day of ……………………………..2022.
………………………………………………
M/S: LUFUNYA ASSOCIATED ADVOCATES
ADVOCATES FOR THE APPLICANTS
DRAWN & FILED BY:
M/S LUFUNYA ASSOCIATED ADVOCATES
EXPLORER SUITES, SUITE NO. 3
PLOT 92
P.O.BOX 23539
WILLIAM STREET
KAMPALA
TO BE SERVED UPON:
M/S SSERYAZI MUGABI & CO. ADVOCATES
CENTENARY BANK BUILDING, OPPOSITE COLLINE HOTEL
PLOT 22 JINJA ROAD, 2ND FLOOR SUITE B11
P.O. BOX 12611,
KAMPALA
