Case Brief: Emmejje John & Anor v. Asegoit Anna

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Last updated on June 11th, 2024 at 10:38 pm

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Date of Judgement: 28th May, 2024

Court: Court of Appeal

Case Number: Civil Application No. 24 OF 2024

Judge: Justice Oscar Kihika (sitting as a Single Judge)

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Main Topic (s): Granting a stay of execution pending the determination of the main appeal

Summary Facts of the Case

In this case, the Applicants, Emmejje John, and Okacuga Emmanuel were administrators of the estate of their late polygamous father, Okacuga Martin and the respondent, Asegoit Anna Margaret, was one of the three wives of the said late Okacuga Martin, and therefore the applicants’ stepmother.

The Applicants, per Rule 6(2)(b) of the Court of Appeal Rules, applied to the Court of Appeal to stay the execution of orders of the High Court which ruled in favor of the respondent in a dispute about the division of compensation funds paid under the Standard Gauge Railway construction project which had displaced the respondent from the parcel of land bequeathed by her late husband.

The Applicants filed an appeal in the Court of Appeal challenging the decision of the High Court.

In this application, they argued that the respondent had already taken steps to execute the orders of the High Court and that if the temporary stay of execution was not granted by the Court of Appeal, they would suffer.

Legal Issues Before the Court

  • Whether a stay of execution of the High Court orders should be granted?

Decision of the Court

Court of Appeal Judge, Justice Oscar Kihika declined to grant the stay of execution of the High Court’s orders on the ground that the applicants had not met the required criteria per the case of Hon. Theodore Ssekikubo & Others V. Attorney General & Anor Constitutional Application No. 6 of 2013 namely that:

  • The Applicant must establish that his Appeal has a likelihood of success or a prima facie case of his right of Appeal;
  • It must also be established that the Applicant will suffer irreparable damage or that the Appeal will be rendered nugatory if a stay is not granted;
  • If 1 and 2 above have not been established, the Court must consider where the balance of convenience lies;
  • The Applicant must also establish that the Application was instituted without delay.

The learned Judge found that the applicants in this case had not attached their memorandum of appeal – indicating their grounds for appeal – to either their notice of appeal or the substantive appeal and, the court could not therefore assess whether or not their appeal had a likelihood of success or a prima facie case of right of appeal yet this is the most important consideration.

The Applicants did not even attach the High Court decision they were appealing from, the Justice found.

Further, the Applicants had not indicated they would suffer irreparable damage if the stay of execution is not granted.

Key Quote: ” It is incumbent upon the Applicant to avail evidence, or material to the court in order for it to establish whether or not the Applicant has a prima facie case on appeal… The Applicants in the instant case did not attach the Memorandum of Appeal nor did they deem it necessary to attach the decision of the High Court from which their appeal arises in order for this Court to assess the likelihood of success of the Applicants’ appeal. In the circumstances, I would therefore find that the Applicants have failed to establish a prima facie case on appeal or likelihood of success” – Justice Oscar Kihika.

Law Applied By Court

  • Gashumba Maniraguha v. Sam Nkudiye Supreme Court Civil Application No. 24 of 2015: likelihood of success is the most important consideration even though the Court is not at this stage deciding the Appeal
  • Osman Kassim Vs Century Bottling Company Ltd Civil Appeal No. 34 of 2019: Significance of attaching a memorandum of appeal

Counsel on Record

Applicants: Represented by Mr. Orkut Moses

Respondent: Unrepresented

Conclusion

This decision highlights the significance of attaching a memorandum of appeal to an application for a stay of execution to enable the Court of Appeal to assess the chances of the appeal succeeding to be convinced a case is not frivolous or vexatious to warrant staying the execution of orders of the High Court.

Key Quote: “Given that the Applicants have failed to satisfy the Court that they have a prima facie case and that they are likely to suffer irreparable damage, it is not necessary to determine this application on the balance of convenience.” – Justice Oscar Kihika.



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