Scribd
Upload
134 views5 pages

Ruling URA Vs Mohammed Tumusiime

This ruling concerns an application by Uganda Revenue Authority seeking a stay of execution of a judgment against Mohammed Tumusiime. The court analyzed the conditions for granting a stay, including whether the appeal has merit and if irreparable loss would result. However, URA failed to prove Tumusiime lacked capacity to repay the funds or that recovery would be impossible. As such, the court dismissed the application, finding URA did not demonstrate strong grounds to deprive Tumusiime of the judgment's benefits by granting a stay.

Uploaded by

katz
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
134 views5 pages

Ruling URA Vs Mohammed Tumusiime

This ruling concerns an application by Uganda Revenue Authority seeking a stay of execution of a judgment against Mohammed Tumusiime. The court analyzed the conditions for granting a stay, including whether the appeal has merit and if irreparable loss would result. However, URA failed to prove Tumusiime lacked capacity to repay the funds or that recovery would be impossible. As such, the court dismissed the application, finding URA did not demonstrate strong grounds to deprive Tumusiime of the judgment's benefits by granting a stay.

Uploaded by

katz
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 5

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA


CIVIL DIVISION
MISCELLANEOUS APPLICATION NO. 0440 OF 2022
(Arising Out of Civil Suit No. 480 OF 2016)
UGANDA REVENUE
AUTHORITY:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT
VERSUS
MOHAMMED
TUMUSIIME::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
BEFORE: HON. JUSTICE SSEKAANA MUSA
RULING
This is an application brought under Section 98 of the Civil Procedure Act, Cap. 7;
Section 33 of the Judicature Act, Cap. 13 and Order 43 Rule 4 (2) & (4) of the Civil
Procedure Rules, S.I 71-1, seeking orders that an order for stay of execution be
issued against the respondent and her agents staying execution and or any
enforcement against the applicant in respect of the judgment in HCCS No. 480 of
2016 delivered on 12th July 2019 and ruling vide the Taxation Application No. 176
of 2019 (arising out of HCCS No. 480 of 2016) delivered on 13th April 2022 by this
Honorable Court, until an appeal of the same is disposed and that costs of this
application be provided for.
The application was supported by the affidavit of Bakanansa Hilda Walaga, an
advocate in the applicant’s legal department whose grounds were briefly that the
applicant filed an appeal that was pending hearing and that the applicant would
suffer irreparable loss and the appeal rendered nugatory if the same was not
granted.
The respondent opposed this application on grounds that it was incompetent,
vexatious, and frivolous and filed to frustrate him from harvesting the fruits of his
judgment and prayed that the same be dismissed with costs.
The parties filed submissions that were considered by this court.
The purpose of an application of this kind is to preserve the subject matter in
dispute so that the rights of the appellant who is exercising his/her undoubted
right of appeal are safeguarded and the appeal if successful, is not rendered
nugatory. See Lawrence Musiitwa Kyazze vs. Eunice Busingye SCCA NO. 18 of
1990 [1992] IV KALR 55.
The conditions for granting a stay of execution pending appeal are mainly two;
a. Whether there is an arguable appeal.
b. Whether the appeal would be rendered nugatory if such application is not
granted.
Order 43 Rule 4(3) of the Civil Procedure Rules provides the following conditions
before an order for stay of execution is granted;
(a) that substantial loss may result to the party applying for stay of execution
unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance
of the decree or order as may ultimately be binding upon him or her
Counsel for the applicant submitted that the applicant had already filed an appeal
and conferencing notes before the Court of Appeal and the appeal has a high
likelihood of success. In opposition, counsel for the respondent submitted that a
mere glance at the memorandum of appeal showed that the appeal had no merit
and no chance of success because the criminal charges brought against the
respondent were dismissed for a lack of merit, and the state never appealed.
In the assessment of whether the appeal has a likelihood of success, this court
ought not to delve into the merits of the appeal that is; prejudge the appeal but
rather determine whether the appeal raises arguable points to be determined by
the court of appeal. The applicant raises grounds of appeal that show that a prima
facie case has been established.
The applicant pleaded that it would suffer irreparable loss and that the appeal
would be rendered nugatory if this application was not granted. The applicant
contended that the respondent has no known source of income or assets
equivalent to the sums awarded and that the respondent’s whereabouts were
unknown to the applicant which would make it hard to recover the amounts once
the appeal was successful.
Counsel for the respondent denied these contentions and submitted that the
applicant had not proved the respondent’s incapacity to repay the monies to the
satisfaction of the court.
Analysis
The principles under which applications of this nature are determined were well
set out in the case of Kyambogo University vs Prof Isaiah Omolo Ndiege Civil
Application No. 341 of 2013 (C.A) Justice Kenneth Kakuru JA (RIP) citing various
decisions including the Supreme Court decision in Lawrence Musiitwa Kyazze vs
Eunice Busingye Civil Application No. 18 of 1990 restated the conditions for a
stay of execution order as follows;
I. That the Applicant must show that he has lodged an appeal which is
pending hearing.
II. That the said pending appeal is not frivolous and it has a likelihood of
success.
III. That there is a serious and imminent threat of execution of the decree and if
not stayed the appeal will be rendered nugatory.
IV. That the application was made without unreasonable delay.
V. That the Applicant is prepared to give security due performance of the
decree and;
VI. That refusal to stay would inflict greater hardship than it would avoid.
VII. The power to grant or refuse a stay is discretionary.
It is trite law that the duty and burden of proof lies on the Applicant because they
are the ones who seek to get a decision of this court in their favour. See Sections
101 and 102 of the Evidence Act. O.43 r 4(2) of the Civil Procedure Rules S1. 71-1
under which this application was filed provides thus;
“Where an application is made for stay of execution of an appealable
decree before the expiration of the time allowed for appealing from the
decree, the court which passed the decree may on sufficient cause being
shown order the execution to be stayed.”

No order for stay of execution shall be made under sub rule (1) unless the court is
satisfied –(a) that substantial loss may result to the party applying for stay of
execution unless the order is made;(b) that the application has been made without
unreasonable delay; and (c) that security has been given by the Applicant for the
due performance of the decree or order as may ultimately be binding upon him or
her.

In the case of Kyambogo University vs Prof. Isaiah Omolo Ndiege Civil


Application No. 341 of 2013 (C.A) Justice Kenneth Kakuru J.A (RIP) held as
follows;
“there is no evidence whatsoever that there is an impending or imminent threat of
execution, no such evidence was provided. No warrant of execution has been
issued or even applied for….”.

In this case, the Applicant has not demonstrated that the loss (if any) will not be
capable of monetary atonement by the Respondent. There seems to be a
common thinking among litigants that court can grant a stay of every decree as an
automatic right by alleging substantial loss which is wrong. While exercising the
discretion conferred under the law of stay of execution, the court should duly
consider that a party who has obtained a lawful decree/order is not deprived of
the fruits of that decree except for good and cogent reasons.

The substantial loss must be proved with cogent evidence in order for the court to
be able to assess the impact and potential loss or handicap the organization will
suffer. The applicant failed to show that they will not be able to recover the said
monies if they succeeded in the appeal.
The inability of the victorious party to be able to refund the decretal amount in
the event of a successful appeal is one of such special circumstances if
proved. See Pan African Insurance Company (U) Ltd v International Air Transport
Association [2008] UGCommC 24
The applicant merely stated that the respondent lacked the capacity to refund the
monies if the appeal was successful but led no evidence to prove the same. The
respondent provided his address in paragraph 11 of the affidavit in reply which he
stated was the same since the commencement of the head suit. By so doing, the
respondent rebutted the applicant’s allegation that they did not know his
whereabouts. The applicant ought to have led evidence to show this court that
the respondent indeed lacks the capacity to refund the monies if the appeal is
successful.
The applicant has therefore failed to prove that irreparable loss will be suffered
and the appeal rendered nugatory if the application is not granted. The applicant
has not adduced any evidence to show that the respondent will not be able to
restore it to the status quo ante if its appeal succeeds
So long as the decree/order is not set aside by a competent court, it stands good
and effective and should not be lightly dealt with so as to deprive the holder of
the lawful decree/order of its fruits. Therefore a decree/order passed by a
competent court should be allowed to be executed unless a strong case is made
out on cogent grounds no stay should be granted. Otherwise every judgment
debtor would file an appeal as a way of stopping the successful parties from
enjoying the fruits of litigation.

With the above analysis, I hereby dismiss this application with costs.

I so order.

Ssekaana Musa
Judge
24th April 2023

You might also like