High Court at Kabale Rules That an Unappealed Taxed Bill of Costs Does Not Meet the Requirement for a Discretionary Stay of Execution.

Snapshot

The High Court of Uganda at Kabale has emphasised that an application for stay of execution pending an appeal from the High Court to the Court of Appeal is a discretionary remedy and that the mere filing of a notice or memorandum of appeal does not, by itself, entitle an applicant to a stay of execution. In Mary Martin v Kakuru Moses & 2 Others, Miscellaneous Application No. 007 of 2026, arising from Civil Suit No. 36 of 2017, the High Court considered an application seeking a stay of execution of a decree and orders pending the determination of an appeal in the Court of Appeal.

The Court held that although the applicant had established some of the requirements for a stay, including the filing of an appeal and the fact that the application had been filed without delay, the application ultimately failed because the execution sought to be stayed related only to a taxed bill of costs amounting to UGX 29,260,000, against which the applicant had not appealed.

The Court further found that the applicant had failed to demonstrate that refusal of the stay would render the intended appeal nugatory, that the respondents would be unable to refund the money if the appeal succeeded, or that the subject matter of the appeal was otherwise at risk of being defeated by execution.

FACTS

Mary Martin, the applicant, had been the plaintiff in Civil Suit No. 36 of 2017 before the High Court at Kabale. Following the determination of the substantive suit, the applicant lodged an appeal against the judgment and orders of the High Court.

The applicant subsequently approached the High Court by way of Miscellaneous Application No. 007 of 2026 seeking, principally, an order staying execution and implementation of the decree and orders in Civil Suit No. 36 of 2017 pending the determination of her appeal before the Court of Appeal.

The application was brought under Section 98 of the Civil Procedure Act, Cap. 282, Section 37 of the Judicature Act, Cap. 16, and the relevant provisions of Order XLIII and Order LII of the Civil Procedure Rules.

The applicant sought orders of a stay of execution and implementation of the decree and orders in Civil Suit No. 36 of 2017 pending determination of the appeal; and Costs of the application to abide the outcome of the appeal.

The applicant relied on several grounds, including that she had appealed against the judgment of the High Court; that the intended appeal raised substantial questions of law and fact; that unless execution was stayed, the appeal would be rendered nugatory; that the application had been brought without unreasonable delay; that the appeal had a likelihood of success; and that she would suffer substantial loss or great injustice if execution proceeded.

It was further averred that a bill of costs arising from the successful parties' litigation had been taxed in Taxation Application No. 055 of 2025, resulting in a certificate of taxation for UGX 29,260,000, dated 21 January 2026.

The applicant also stated that she faced an imminent threat of execution and that a notice to show cause had been issued against her.

The respondents opposed the application. They contended that the applicant's affidavit was replete with falsehoods and that the filing of an appeal did not automatically operate as a stay of execution.

The respondents further submitted that the applicant had not demonstrated how the intended appeal would be prejudiced or rendered nugatory if execution proceeded. They also maintained that the appeal had no likelihood of success and that the application had been brought merely to prevent them from enjoying the fruits of their judgment.

LEGAL REPRESENTATION

The applicant, Mary Martin, was represented by M/s Elgon and Co. Advocates.

The 1st, 2nd and 3rd respondents were represented by M/s Twikirize and Co. Advocates.

The Court noted that the application was argued by way of pleadings.

SUBMISSIONS OF THE APPLICANT

The Applicant argued that the court should exercise its power to stay execution of the decree in Civil Suit No. 36 of 2017 pending determination of her appeal. She submitted that she had duly filed Civil Appeal No. 51 of 2026 on 2nd March 2026 and that a certificate of taxation dated 21st January 2026 had fixed costs at UGX 29,260,000/=. She further contended that a notice to show cause had been entered against her, creating an imminent threat of execution for court’s intervention.

Furthermore, the applicant argued that the appeal raised substantive questions of law and fact and would be rendered nugatory absent a stay. She maintained that the application was timely and made in the face of imminent execution. In her view, the appeal had a likelihood of success that she would suffer substantial loss or great injustice without a stay. She additionally argued that the respondents would not be prejudiced by a grant of the stay and that the interests of justice favoured a stay pending disposal of the appeal.

Accordingly, she sought an order staying execution of the decree and orders in Civil Suit No. 36 of 2017, with costs of the application to abide the outcome of the appeal.

SUBMISSIONS OF THE RESPONDENTS

The Respondents argued that the application did not meet the legal threshold for a stay of execution and should be dismissed. They contended that the applicant's affidavit contained falsehoods, the taxed bill of costs was appropriate in the circumstance and that the applicant had not appealed the taxation decision.

Furthermore, they argued that mere filing of an appeal does not automatically warrant a stay of execution. In their view, the Applicant had not demonstrated how the intended appeal would be negated or rendered nugatory in absence of a stay and that the appeal itself lacked a substantive basis and no likelihood of success.

They also argued that the Applicant had failed to demonstrate any risk of irreparable loss and that the application was brought in bad faith as a frantic attempt to deny the judgment creditors the fruits of a judgment obtained after protracted litigation.

They accordingly prayed court to dismiss the application and allow the execution to proceed.

COURT'S FINDINGS

On whether the application for stay of execution discloses a basis for the relief sought

The court began by noting that a stay of execution pending an appeal from the High Court to the Court of Appeal is not expressly provided for in the Civil Procedure Act or Civil Procedure Rules by referring to Section 78 of the Civil Procedure Act, which governs the venue of appeals and provides that where an appeal from any order is allowed, it lies to the court to which an appeal would lie from the decree in the suit in which the order was made.

The court further reiterated that Order XLIII of the Civil Procedure Rules deals generally with appeals to the High Court, but does not address stays pending appeal to the Court of Appeal and court relied on the High Court decision in Ejulu Martin v. Itobu Margaret, HCMA 160 of 2022, where Adonyo J reiterated that there is no specific rule in the Civil Procedure Rules governing a stay of execution where the appeal lies to the Court of Appeal, and that this falls within the court's inherent powers.

Court further relied on Section 98 of the Civil Procedure Act to exercise its inherent powers to grant orders necessary for the ends of justice and that this power is invoked precisely where written law is silent, as was the case in the present case, since no statute expressly addresses a stay of execution pending appeal from the High Court to the Court of Appeal. On this, the court reinforced the reasoning by reference to the East African Court of Justice's decision in East Africa Law Society v. The Attorney General of the Republic of Uganda, Reference No. 7 of 2012, which applied an analogous inherent-powers rule and observed that a stay serves the commonsense purpose of avoiding conflicting decisions and preventing outcomes from being rendered nugatory. The court found this reasoning "sound" and applicable, confirming that Section 98 (and no other provision) was the source of its jurisdiction to grant the relief sought.

The court applied the five-factor standard set out by the Supreme Court in Hon. Ssekikubo & 3 Ors v. Attorney General & 4 Ors, Constitutional Application No. 06 of 2013, for evaluating an applicant's eligibility for a stay pending appeal and proceeded to apply each factor to the facts as follows;

1. Filing of notice of appeal and steps to prosecute it.  A notice of appeal had been filed and was exhibited in the applicant's pleadings.

2. Triable issues with a strong likelihood of success. The court found that the memorandum of appeal raised at least two arguable points of law in Grounds 1 and 2 although these points were found not to affect the 3rd respondent, who was not in privity of contract with the applicant. The court referenced Lawrence Musiitwa Kyazze v. Eunice Businge, S.C. Civil Application No. 18 of 1990, for the proposition that an appeal need only show some prospect of success, and found this threshold met, though only in a limited sense.

3. Irreparable damage absent a stay. The court found this ground "not well articulated" in the application. Citing DFCU Bank v. Crane Management Services, Miscellaneous Application No. 235 of 2025, 2025 UGHC 142 (Mubiru J.), the court noted the principle that a stay will not be granted where execution of a judgment does not impair the character of the appeal. Here, execution related only to the taxed bill of costs; the underlying suit property had already been transacted upon by the applicant and the 1st and 3rd respondents, with the 3rd respondent being both in possession and the registered proprietor. The court also noted Mubiru J.'s observation that a stay applicant may need to show the respondent's insolvency a higher threshold the applicant here did not attempt to meet.

4. Balance of convenience. The court found the sum in issue (UGX 29,260,000/=) to be a taxed bill of costs that the applicant had not challenged on appeal, indicating her acceptance of that figure. There was no verified allegation of an imminent threat to the subject matter of the suit itself (e.g., an impending sale of the property).

5. Absence of delay. The application was filed on 30th April 2026, the same day the notice to show cause was filed, and the court accepted this as timely. However, the court immediately qualified this finding by observing that, absent any appeal against the taxation decision, the application appeared to have been brought in bad faith.

The court answered the first issue in the negative; the application did not disclose a sufficient basis for the grant of a stay.

On what remedies are available to the parties?

The court reiterated that a stay of execution is a discretionary remedy, requiring the court to weigh the applicant's interest in pursuing her appeal against the respondents' interest, having litigated for nine years before securing judgment on 11th November 2025.

The court identified three factors favouring the applicant (the filing of a notice and memorandum of appeal, and the promptness of the application following service of the notice to show cause) against two factors weighing against her (i) the execution related solely to a taxed monetary sum which she had not appealed, removing any risk that the appeal itself would be rendered nugatory; and (ii) she had not adduced evidence that the respondents lacked the means to refund the taxed costs should she succeed on appeal, nor shown what aspect of her claim would be rendered nugatory absent a stay.

The court concluded that while some statutory basis for the application existed, it did not meet the threshold necessary for the exercise of judicial discretion in the applicant's favour, characterising the application as an afterthought triggered by the notice to show cause rather than a genuine response to risk of injustice. The court noted that the interests of justice required that the respondents who had been out of pocket for a long period be reimbursed the taxed costs, failing which the concluded court proceedings would themselves be rendered nugatory.

HOLDING

The application for stay of execution failed. The court held that the applicant had not met the threshold required for the exercise of the court's discretion to grant a stay, particularly on the irreparable-harm and balance-of-convenience limbs of the applicable test.

Final Orders

1. The application is dismissed.

2. Costs are awarded to the respondents.

The court further noted, as an ancillary observation rather than a formal order, that the applicant remains at liberty to file a fresh application for stay of execution before the Court of Appeal.

Summarised by Gerald

Lawpoint Uganda Student Ambassador

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KEY TAKEAWAYS

1. Filing an appeal does not automatically stay execution

   The decision reinforces the principle that the filing of a notice or memorandum of appeal does not, by itself, suspend execution of a judgment or decree.

   An applicant must independently satisfy the applicable requirements for a stay.

2. The High Court clarified that there is no specific provision in the Civil Procedure Rules expressly governing a stay of execution where an appeal lies from the High Court to the Court of Appeal.

   The Court therefore exercises its inherent jurisdiction under Section 98 of the Civil Procedure Act to make orders necessary for the ends of justice.

   
   

3. The five-prong test remains central in applications for stay of Execution pending appeal as observed in Hon. Ssekikubo & 3 Ors v. Attorney General & 4 Ors, Constitutional Application No. 06 of 2013

An applicant should demonstrate:

1. Filing of the notice of appeal and steps towards prosecution;

2. An arguable appeal with prospects of success;

3. Likelihood of irreparable damage if stay is refused;

4. A balance of convenience favouring the stay; and

5. That the application was made without delay.

Satisfying only some of these requirements will not necessarily result in a stay.

4. An arguable appeal is not enough

The applicant in this case demonstrated that her memorandum of appeal contained arguable points of law. Nevertheless, the Court declined to grant a stay because the other requirements had not been established. An applicant must therefore demonstrate more than the existence of arguable grounds of appeal.

5. Substantial loss must be specifically demonstrated

A party seeking a stay should provide concrete evidence explaining how execution will cause substantial or irreparable prejudice. A general assertion that the appeal will be rendered nugatory is unlikely to be sufficient. The applicant should identify the particular aspect of the appeal that execution threatens and explain precisely how that threat arises.

6. Monetary execution requires careful consideration of refundability

Where execution concerns a monetary award or taxed costs, an applicant should consider demonstrating circumstances showing that recovery of the money would be difficult if the appeal succeeds. The ruling indicates that the financial ability of the successful party to refund the money may be relevant where the applicant alleges that payment would cause irreparable prejudice.

7. Where execution is based on a certificate of taxation, an applicant seeking to stay execution should carefully consider whether the taxation itself has been challenged. In this case, the applicant had not appealed against the taxation decision concerning the UGX 29,260,000 bill of costs. The Court considered this omission significant and found that the applicant was, in effect, seeking to stay execution of a monetary award which she had not challenged.

8. The Court distinguished between execution that threatens the subject matter of an appeal and execution that merely seeks recovery of taxed costs. Where the property forming the subject matter of the original dispute has already been dealt with and execution relates only to costs, an applicant may face greater difficulty demonstrating that the substantive appeal will be rendered nugatory.

CONCLUSION

The decision in Mary Martin v Kakuru Moses & 2 Others provides an important reminder that a stay of execution is an exceptional and discretionary form of interim relief, rather than an automatic consequence of an appeal.

The High Court recognised the applicant's right to pursue her appeal and acknowledged that the appeal contained arguable points of law. However, the Court ultimately found that the applicant had not established that execution of the UGX 29,260,000 taxed bill of costs would prejudice or render the appeal nugatory.

Of particular significance was the applicant's failure to challenge the taxation decision itself, coupled with the absence of evidence demonstrating irreparable loss or the respondents' inability to refund the money if the appeal succeeded.

The ruling therefore calls for the need to carefully distinguish between the subject matter of the substantive appeal and the subject matter of execution, and to place concrete evidence before Court demonstrating why execution would cause prejudice that cannot adequately be remedied after the appeal.

The decision also reinforces the broader principle that the right to appeal must be balanced against the successful litigant's right to enjoy the fruits of judgment, particularly where litigation has already endured for a prolonged period.

An applicant seeking a stay of execution pending an appeal from the High Court to the Court of Appeal must establish the recognised five-pronged test. The existence of an appeal, even one raising arguable points of law, will not by itself justify a stay where the applicant fails to demonstrate irreparable prejudice, a risk of the appeal being rendered nugatory, or a balance of convenience in their favour.