Stay of execution pending appeal

Court may stay execution where the circumstances of the case justify such a stay. It is
therefore incumbent upon the applicant in every application of stay of execution to
satisfy court that grounds exist for grant of a stay of execution. The assumption that
once a party has filed an appeal a stay of execution must follow as a matter of course
has no legal basis. See Kyambogo University v Prof Isaiah Omolo Ndiege (Court of
Appeal CIVIL APPLICATION NO. 341 OF 2013) [2013] UGCC 13
The considerations for grant of stay of execution pending appeal were clearly stated by
Justice Kakuru in Kyambogo University v Prof Isaiah Omolo Ndiege (Court of Appeal
CIVIL APPLICATION NO. 341 OF 2013) [2013] UGCC 13;
This position of the law has been followed by this court in numerous applications of
this nature. That this Court must ensure that an appeal if successful is not rendered
nugatory. In my view this is the most important ground that court must consider in an
application of this nature.
From the above the applicant ought to satisfy the following conditions

1. That the applicant has lodged a notice of appeal in accordance with Rule 76 of
the Rules of this Court.
2. That a substantive application for stay of execution has been filed in this court
and is pending hearing.
3. That the said substantive application and the appeal are not frivolous and they
have a likelihood of success.
4. That there is a serious and imminent threat of execution of the decree or order
and that if the application is not granted the main application and the appeal will
be rendered nugatory.
5. That the application was made without unreasonable delay
6. The applicant is prepared to grant security for due performance of the decree.
7. That refusal to grant the stay would inflict greater hardship than it would avoid.

These considerations were reiterated by the Constitutional Court in Omar Awadh Omar
and 10 Ors v Attorney General Constitutional Court Civil Application No. 02 of 2015.

The Supreme Court and Court of Appeal have been clear that the applicant must first
show that there is a serious and imminent threat of execution of the decree or order.
In Attorney General V Walugembe Daniel Court of Appeal Civil Application No. 390
of 2018 it was held that an application for stay of execution is without doubt premised
on a threat of execution of an order or decree appealed from. Therefore an application
such as this seeking orders for stay of execution must first satisfy the Court that indeed
the orders or the decree appealed from is capable of being stayed and there is an
inherent danger of execution.
The authorities have been summarized in; Rukikaire v INCAFEX Ltd (CIVIL
APPLICATION NO 11 OF 2015) [2015] UGSC where court stated;
This Court has stated in several cases including Hon. Theodore Ssekikubo and 3 Others
vs The Attorney and Others Constitutional (supra)  In the same case, the Court stated
further in the paragraph referred by Mr. Walubiri that the:

“Consideration for the grant of an interim order of stay of execution or interim

injunction is whether there is a substantive application pending and whether there is a
serious threat of execution before the hearing of the substantive application. Needless
to say, there must be a Notice of Appeal.”

The Court referred to Hwang Sung Industries Ltd (supra)  where Okello JSC had held
that:

“… 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 the hearing of the pending
substantive application.

It is not necessary to pre-empt consideration of matters necessary in deciding whether

or not to grant the substantive application for stay.”

In Alcon International,  Okello JSC, restated the position, after referring to his decision
in Hwang Sung Industries Ltd (supra)  as follows:

“I  stand by that statement. Upon being satisfied that the notice of appeal has been
lodged in accordance with Rule 72 of the Rules of this court, it is only necessary for the
court to satisfy itself, on evidence, that a substantive application is pending and that
there is a serious threat to do the act complained of before the substantive application
is heard and determined. Lodgment of the notice of appeal in accordance with rule 72
ensures the competence of the pending substantive application. There is therefore, no
need to pre-empt consideration of matters of substance, necessary for the success of the
substantive application.…”

The Court has also stated in the cases of Yakobo Sekungu and Others v Crensio
Mukasa, (Civil Application No. 05 of 2013)  and  Guiliano Gariggio vs Claudio Casadio
(Civil Application No. 03 of 2013),   that:
 “…the granting of interim orders is meant to help parties to preserve the status quo
and then have the main issues between them determined by the full Court as per the
Rules.”

In Rukikaire case, the Supreme Court refused to grant stay of execution after finding
that the evidence of a serious threat has not been availed to court. In the premises, and
for the reasons given above, I have no evidence upon which to base the exercise of the
court’s discretion to grant the order sought. I accordingly disallow the application, with
costs to the Respondent.

The same principle was emphasized by the Supreme Court in Zubeda Mohamed &
Anor v Wallia & Anor (CIVIL REFERENCE NO.07 0F 2016) [2017] UGSC 7 which
referred to the decisions in Hwangsung supra and Sekikuubo supra
 And noted that “In our considered opinion and upon careful perusal of the record
before us, we find that the evidence of eminent danger of execution was not strong
enough to justify the grant of an interim order in the absence of a warrant of execution
or a Notice to Show cause why execution should not issue from the executing court.

Further in Omar Awadh Omar and 10 Ors v Attorney General Constitutional Court
Civil Application No. 02 of 2015. Court stated that as to whether or not there is serious
imminent threat of execution is a question of fact that requires proof. No proof has been
provided. There is nothing on record to show that an application for execution has been
lodged in this Court. And on that ground Court dismissed the application for stay of
execution.

It is our submission that the applicant in this case has not demonstrated that there is
imminent threat of execution. Among the grounds on which this application is based
and the supporting affidavit, the applicant has not averred threat of execution. This is
clearly brought out by paragraph 7 of the first respondent’s affidavit in reply.

Further, it is our submission that the order sought to be stayed is incapable of being

executed. A dismissal order is a negative order which cannot be stayed as there is

nothing positive in it.

The law recognizes that not every order or decree is capable of being executed or an

appeal therefore warrants a grant of stay of execution. See Attorney General V

Walugembe Daniel Court of Appeal Civil Application No. 390 of 2018

In Burundi Tobacco Co. S.A.R.L V British American Tobacco (U) Ltd Court of

Appeal Civil Appeal Reference NO. 22 OF 2010. An order of stay of execution can

only be granted where the order sought to be stayed is capable of execution in any of

the ways prescribed under Section 38 of the Civil Procedure Act, which concerns an

order not yet implemented or executed.

This was also emphasized in Omar Awadh Omar and 10 Ors v Attorney General
Constitutional Court Civil Application No. 02 of 2015.

Where court held that there must be an order capable of being executed.

In Finasi/Roko Consturction SPV Ltd and anor v Roko Construction Ltd Court of
Appeal Civil Application No. 220 of 2019, The court of appeal emphatically held that a
negative order is incapable of being executed as it does not require an execution
process.

At page 12 it is stated thus;

“for this reason, I will first deal with the issue of whether there is any order
capable of being stayed before I consider any submissions in the application
itself.

I have read through the orders appealed against and have failed to perceive how
the impugned orders can be construed as orders capable of execution that may
be stayed. The wording of the temporary injunctive order is clearly negative in
that it restrains the applicants from evicting the respondent to this application
from the site of the proposed construction of a hospital building. Such an order
on the face of it is not capable of being stayed because it does not require
execution process to put the judgment creditor into enjoyment of the fruits of the
order and particularly by putting the respondent into possession which is the
 crux of the issue. It merely restrains the applicants from carrying out certain acts.
For emphasis it is a negative order or a restraint order………………..any negative
order by its nature is not capable of execution through the breach of the order
can be considered contempt of court order capable of subjecting the directors of
the applicants to proceedings for contempt of court order. ……..it has been held
that an order which is incapable of execution cannot be stayed.

Court quoted the Court of Appeal of Kenya in Exclusive Estate Limited vs. Kenya

Posts and Telecommunications Corporation and Another [2005] 1 EA 53 (CA) and also

the case of Mugenyi and Co. Advocates vs. National Insurance Corporation Civil

Appeal No 13 of 1984 Reported in [1992 – 1993] HCB 82 in support of the principle that

a dismissal order is a negative order incapable of being executed and for which an

application for stay of execution ought not to be allowed.

Infinity Telecom Uganda Ltd v Eco Bank Uganda Ltd & Anor (MISCELLANEOUS
APPLICATION NO 2129 OF 2016) [2017] 

Held; The Court has no jurisdiction to stay any action by private juridical persons
unless there is a positive order of court for something to be done or enforced. Even if
the injunction was refused, the court has no power to stay a negative order of dismissal
of the injunction. In Exclusive Estate Limited vs. Kenya Posts and
Telecommunications Corporation and Another [2005] 1 EA 53 (CA) it was held by the
Court of Appeal of Kenya that stay of execution envisaged under rule 5 (2) (b) of the
Court of Appeal Rules of Kenya is the execution of a decree capable of execution in any
of the methods stipulated under the equivalent of our section 38 of the Civil Procedure
Act. The Court further held that a decree holder as defined under the Civil Procedure
Act means a person in whose favour a decree capable of execution has been passed. In
that case the order which had been made dismissed the suit and was a negative order in
that it was not capable of execution. It was held that a negative order can only be set
aside by the appellate court. Section 38 of the Civil Procedure Act provides for the
various modes of execution in the following words:

a. by delivery of any property specifically decreed,

b. by attachment and sale, or by sale without attachment, of any property,
 c. by attachment of debts,
d. by arrest and detention in prison of any person,
e. by appointing a receiver, in such manner as the nature of the relief granted may
require.”

It envisages an order which is not yet implemented or executed and which is capable of
execution. For the order or decree to be satisfied, the judgment creditor or an officer of
the court such as a bailiff must force or compel the judgment debtor or 3rd party such as
the Garnishee using any of the modes provided for under section 38 of the Civil
Procedure Act to implement the order or decree..

In the case of Mugenyi and Co. Advocates vs. National Insurance Corporation Civil
Appeal No 13 of 1984 Reported in [1992 – 1993] HCB 82, the Court of Appeal held inter
alia that under Section 2 of the Civil Procedure Act an order of dismissal of a suit for
default is not a decree and accordingly the Respondent who was the Applicant in the
High Court was not a decree holder and thus there was a valid objection to an order for
stay of execution pending hearing a suit

There are a number of decisions from Kenyan Courts in support of the above principle
that where a suit is dismissed, the resultant order is a negative order incapable of being
executed.

In Catherine Njeri Maranga v Serah Chege & another [2017] eKLR

Held;

The authorities on stay of execution pending appeal are clear that for an order of stay of
execution to lie, there must be positive requirements therein which would or could be
affected or tampered by the stay. In Western College of Arts and Applied Sciences v
Oranga & Others (1976-80) 1 KLR, the Court of Appeal for East Africa stated in respect
of stay of execution, stated as follows:

“But what is there to be executed under the judgment, the subject of the
intended appeal" The High Court has merely dismissed the suit with
costs. Any execution can only be in respect of costs. In Wilson v Church
the High Court had ordered the trustees of a church to make a payment
out of that fund. In the instant case the High Court has not ordered any
parties to do anything, or to refrain from doing anything, or to pay any
 sum. There is nothing arising out of the High Court Judgment for this
Court, in and application for stay, it is so ordered”

. In the application before me, as in Western College, there is nothing which the
Magistrates Court has ordered to be done or to refrain from being done. All it has done
is to dismiss an application dated 28th March, 2017 resulting in the lifting of a temporary
stay that had been granted pending that outcome. Indeed that stay became
automatically discharged by the dismissal of the application.

In Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union

(Kenya) [2015] e KLR the Court of Appeal (Kantai J.A ) held as follows:

‘An order for stay of execution[pending appeal] is ordinarily an interim

order which seeks to delay the performance of positive obligations that
are set out in a decree as a result of a Judgment. The delay of performance
presupposes the existence of a situation to stay – called a “positive
order” – either an order that has not been complied with or has partly
been complied with. See, for this general proposition, the holding of the
Court of Appeal of Uganda in Mugenyi & Co. Advocates v National
Insurance Corporation (Civil Appeal No. 13 of 1984) where it was stated:

‘….. an order for stay of execution must be intended to serve a purpose

…..’ ” (emphasis supplied).

Further, in the more recent case of Kenya Commercial Bank Limited v Tamarind
Meadows Limited & 7 Ors [2016] eKLR, the Court of Appeal expounded on stay of
execution stating:

“16. In Kanwal Sarjit Singh Dhiman v. Keshavji Juvraj Shah [2008]

eKLR, the Court of Appeal, while dealing with a similar application for
stay of a negative order, held as follows:

“The 2nd prayer in the application is for stay (of execution) of the order
of the superior court made on 18 th December, 2006. The order of 18th
December, 2006 merely dismissed the application for setting aside the
judgment with costs. By the order, the superior court did not order any of
the parties to do anything or refrain from doing anything or to pay any
sum. It was thus, a negative order which is incapable of execution save in
 respect of costs only (see Western College of Arts & Applied Sciences vs.
Oranga & Others [1976] KLR 63 at page 66 paragraph C).”

17. The same reasoning was applied in the case of Raymond M. Omboga
v. Austine Pyan Maranga (supra), that a negative order is one that is
incapable of execution, and thus, incapable of being stayed. This is what
the Court had to say on the matter:

“The Order dismissing the application is in the nature of a negative order

and is incapable of execution save, perhaps, for costs and such order is
incapable of stay. Where there is no positive order made in favour of the
respondent which is capable of execution, there can be no stay of
execution of such an order … The applicant seeks to appeal against the
order dismissing his application. This is not an order capable of being
stayed because there is nothing that the applicant has lost. The refusal
simply means that the applicant stays in the situation he was in before
coming to court and therefore the issues of substantial loss that he is
likely to suffer and or the appeal being rendered nugatory does not
arise…”

In light of the above authorities, there is nothing to stay in the present matter and the
application is hereby dismissed, on that ground.

The above authorities were also considered in Shade Manufacturers and Hotel Limited
v Serah Mweru Mutuu & 3 others [2018] eKLR

The applicant seeks to stay the execution of the orders in HCMA No. 320 of 2019
wherein the learned trial judge dismissed the applicant’s suit against the
respondents. This is clearly a negative order and based on the above authorities is
incapable of being executed and an order for stay of execution cannot be granted.