STAY OF EXECUTION (Order 22 rule 23, 26, Order 43 rule 4 CPR and S.

98 CPA)

Every judgment or decree of a court of competent jurisdiction takes effect immediately upon pronouncement
and every court has power to proceed to enforce such judgment or decree at once.

Although the court will not without good reason delay a successful party in obtaining fruits of his judgment, it
has power to stay execution if justice requires that the defendant should have this protection. Section 98 of
the CPA gives inherent powers to a court to take decisions which are pertinent to the ends of justice. It
provides that:

“Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such
orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

Stay of execution may be by the court that passed a decree or by the court to which an appeal has been made.

Under 0.22 r.26 where suit is pending in any court against the holder of a decree of such court, in the name of
the person against whom the decree was passed, the court may on such terms as to security or otherwise as it
thinks fit stay execution of the decree until the pending suit has been decided.

An appellate court may order the stay of execution of the judgement of a lower court but before it does so, the
lower court has powers to proceed to enforce its own judgement and regardless of the fact that an appeal
against the judgment is pending in a higher court.

Under O.43 r.4, the court has inherent jurisdiction over all judgement or orders and it can stay execution in
such cases. It provides that:

“(1) An appeal to the High Court shall not operate as a stay of proceedings under a decree or order appealed from
except so far as the High Court may order, nor shall execution of a decree be stayed by reason only of an appeal
having been preferred from the decree; but the High Court may for sufficient cause order stay of execution of the
decree.
(2) 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.
(3) No order for stay of execution shall be made under subrule (1) or (2) of this rule unless the court making it
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.
(4) Notwithstanding anything in subrule (3) of this rule, the court may make an ex parte order for stay of
execution pending the hearing of the application.
(5) Applications under subrules (1), (2) and (3) of this rule shall be by motion on notice; an ex parte order
under subrule (4) of this rule may be made on a summons in chambers.”
The practice that the court has adopted is that in the general application for stay of execution, it should be
made informally before the court which has decided the case when the judgment is delivered. The judge may
however direct that a formal application be presented on notice.

The jurisdiction of the court to stay execution where there is a pending suit arises from sec. 98 of the C.P.A and
O.22r26 CPR. The high court has inherent powers to stay its orders including those of execution irrespective of
whether there is an appeal. It is important to note that an order for stay of execution must only be granted if it
will serve a useful purpose. There are certain circumstances which have effect of a stay of execution.

a) an order for winding up of a company operates as a stay of execution on judgments against the
company.

b) An order for an interpleader has an effect of a stay.

c) A garnishee order absolute made against a judgement debtor operates as a stay against the judgment
creditor.

d) When a creditor who has obtained the judgment takes an order for payment in instalments, he cannot
afterwards apply for execution.

A stay of execution only operates to prevent the judgment creditor from putting into operation the legal
process of execution and does not affect any remedies executable outside court.

The principle of law to be followed in applications for stay f execution is whether substantial loss would arise in
not granting the order of stay and whether the dictates of justice demand so.

In the case of Walusimbi v Musenze (H.C.Miscellaneous Application 232 of 2018), Justice Luswata had this to
say:

“The general principle is that where an unsuccessful party is exercising their unrestricted right to appeal, it is the duty of the
Court to make such order for staying proceedings in the judgment appealed from as will prevent the appeal from being rendered
nugatory. See for example, Wilson Vrs Church (1879) Vol. 12 CH D 454 followed in Global Capital Save 2004 Ltd &
Another Vrs Alice Okiror & Another HCMA No. 485/2012. In Lawrence Musiitwa Kyazze Vs. Eunice Busingye SCCA
N0. 18 of 1990 ( 1992) IV KALR 55, it was held 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.
I do agree with the Supreme Court decision in Francis M. Micah Vrs Nuwa Walakira (1992-93) HCB 88 that there is no
specific provision enabling the High Court to grant a stay of execution of its decree pending an appeal. The same Court advised
however that such mandate is present through the inherent powers of Court, for example to preserve the status quo pending an
appeal. In my view, that decision is reflected in Order 43 rr. 4(2) in which every court to which an application for stay of
execution is filed, powers to stay execution of its decree is allowed; if sufficient cause is shown. The conditions that the Court
should consider before allowing an application to stay execution are given in Order 43 rr 4(3) i.e.:

(i) That substantial loss may result to the applicant unless the order is made

(ii) That the application has been made without unreasonable delay and,

(iii) That security has been given by the applicant for due performance of the decree or order as may ultimately be
binding upon him or her.
The Constitutional Court in her decision in Hon. Theodore Ssekikubo & Others Vs. The Attorney General and Another,
Constitutional Application N0. 06 of 2013, added another principle that that the applicant must establish that their appeal has a
likelihood of success. That decision is instructive.

On the issue of whether there is an arguable appeal, 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.”

See also: Erieza and Anor v Twesigye Eriyasi & Anor (HCMA 27 of 2020 at Masaka);