Justice Collins Acellam of the Civil Division of the High Court has allowed Makerere university to recover Shs10m from its alumnus Robert Rutaro who is also a personal lawyer to former Inspector General of police Gen Edward Kale Kayihura.
The decision resulted from an application Rutaro filed to stay the university’s efforts from recovering Court awards from him after losing a case filed against the university and the board of trustees of Makerere university convocation, an association which brings together all Makerere university alumnus.
In his case, Rutaro was challenging the legality, rationality, and procedural propriety of the annual general meeting of the university convocation held on 30 December 2022.
However, Justice Boniface Wamala dismissed his case and awarded costs and general damages to the respondent which allowed them to start the process of executing the orders of the Court to recover Shs10m.
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Rutaro was scared of the move and file the stay of execution application on grounds that he filed an appeal challenging justice Wamala’s decision and chances are high that justices of the Court of Appeal will overturn the said decision.
Through an evidence affidavit, Yusuf Kiranda the university secretary told Court that there is no threat of executing judge Wamala’s orders which warranted stay of execution orders and even although the bill of costs had been taxed, no execution proceedings have commenced and no demand for payment has been made against Rutaro.
He further told Court that Rutaro’s application has been overtaken by events and that its determination would serve no practical purpose.
In his ruling, the judge stated that the Court must finally weigh the competing prejudice to the parties whereby Rutaro has the undoubted right to prosecute his appeal and to seek appropriate protection where enforcement of the judgment would defeat that appeal.
On the other hand, the university equally had legitimate entitlement, as a successful party has a right to enjoy the fruits of the judgment unless sufficient cause is shown for withholding them.
“The appellate process deserves protection, but a stay is not granted simply because an appeal exists. Otherwise, every unsuccessful litigant would obtain an automatic suspension of a decree by lodging an appeal, contrary to the very nature of a discretionary stay jurisdiction,” the judge stated.
He added that the pending appeal cannot become wholly moot merely because taxation was completed.
He agreed with Kiranda who testified under oath that there is neither a demanded for payment nor do they presently intend to execute it and Rutaro has neither furnished nor offered security for due performance of the decree.
“When those considerations are weighed cumulatively, the balance does not favour withholding execution of a decree which remains valid and enforceable merely upon the general assertion that an appeal is pending,” the judge stated.
He dismissed the application noting that the sufficient grounds for the exercise of this court’s discretion to stay the execution of the judgment and decree pending determination of the appeal.
