Published on 03/10/2025
Supreme Court has granted an interim order staying execution of a Court of Appeal decision that struck out an appeal by businessman Patrick Bitature, his companies, and associates in their long-running loan dispute with South African investment firm, Vantage Mezzanine Fund II Partnership.
Justice Elizabeth Musoke, delivering the ruling, said the stay was necessary to preserve the status quo pending determination of the applicants’ substantive application for stay of execution.
“This Court has powers, under Rule 2 (2) of the Rules of the Supreme Court, to make such an interim order to stay the status quo until the hearing and determination of the substantive application for stay of execution,” Justice Musoke held on Friday.
The case stems from a December 11, 2014, agreement in which Vantage Mezzanine Fund II Partnership advanced $10 million to Simba Properties Investment Co Ltd, with Bitature and his companies Simba Telecom, Elgon Terrace Hotel, and Linda Properties as guarantors.
The lenders alleged default and initiated arbitration before the London International Chamber of Commerce.
On July 31, 2023, an arbitral tribunal issued a final award against Simba Properties, later supplemented with an addendum on 9 August 2023.
Vantage subsequently moved the Commercial Division of the High Court seeking recognition and enforcement of the award.
In November 2023, Justice Ocaya issued interim orders restraining Simba companies and their guarantors from altering ownership of mortgaged properties or shareholding, to secure Vantage’s interests.
Bitature and his associates filed a notice of appeal but Vantage challenged it. On August 22, 2025, Court of Appeal Justices Egonda-Ntende, Luswata, and Nambayo struck out the appeal, ruling that the Arbitration and Conciliation Act did not allow such an appeal.
The applicants then petitioned the Supreme Court, seeking both leave to appeal and stays of execution.
Counsel for the applicants, Brain Moogi Brian, argued that they had filed a competent notice of appeal on August 28, 2025 and a substantive stay application, satisfying conditions for an interim stay.
Vantage, represented by Kirunda & Co. Advocates, opposed the application, claiming the notice of appeal was defective and that there was no imminent threat of execution.
Justice Musoke disagreed, finding that while there may be some formalistic defects in the notice of appeal, it nonetheless indicates that the applicants are interested in appealing the decision in Court of Appeal Civil Application No. 305 of 2025 and is therefore sufficient for the relevant purpose.
On execution, the judge observed that “it should be possible to draw a reasonable inference that every successful party has an interest in ensuring the immediate execution of the decree.”
“I therefore find, on a balance of probabilities, that there is a likelihood of imminent execution,” the judge added.
Ruling
The Supreme Court therefore issued the following orders:
An interim stay of execution of the Court of Appeal’s decision in Civil Application No. 305 of 2025 pending determination of the substantive stay application.
Costs of the application to abide the outcome of the substantive stay application.
Justice Musoke stressed that questions over the court’s jurisdiction and competence of the intended appeal would be decided later.
“The main purpose of an interim order is preservation of the status quo to avoid rendering nugatory the determination of the substantive application for stay of execution and the appeal itself,” she stated.
The ruling delivered means Bitature and his companies retain a temporary reprieve from enforcement of the Court of Appeal decision as they pursue further remedies in the Supreme Court.
