Wakilii

Incafex Ltd v James Kabatereine (Civil Misc Application No. 16 of 1997)

Court of Appeal · [1997] UGCA 8 · 1997 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out an appeal as incompetent
Decision
Respondent's appeal struck out as incompetent

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Holding

The Court of Appeal held that an appeal does not lie as of right against an interim order staying execution of a decree. Under section 68 of the Civil Procedure Act read with Order 40(1) of the Civil Procedure Rules, only orders expressly listed are appealable as of right; an order staying execution is not among them. An appeal from such an order lies only with leave of the trial court or the appellate court, applied for by motion on notice to the trial court in the first instance. As the respondent neither sought nor obtained leave, his appeal was incompetent and was struck out.

Facts

The respondent had sued the applicant company and a court broker in the High Court for damages for trespass, detinue and conversion of his tractor, which had been attached and sold pursuant to a High Court execution order arising from an election petition. The trial judge found the execution unlawful, ordered restoration of the tractor, and awarded the respondent UGX 10,000,000 in general damages against both defendants jointly and severally, plus punitive damages against the broker. Subsequently the trial judge issued an interim order staying execution of her judgment pending a review. The respondent appealed against that interim stay order. The applicant then moved the Court of Appeal to strike out the appeal as incompetent, contending that no appeal lay against an interim order, or alternatively that any appeal lay only with leave, which the respondent had neither sought nor obtained.

Issues

  1. Whether an appeal lies as of right against an interim order staying execution of a decree.
  2. Whether the respondent's appeal was competent without leave of the Court having been sought or obtained.

Orders

  • Application to strike out the appeal allowed.
  • The respondent's appeal (Civil Appeal No. 8 of 1997) struck out as incompetent.
  • The respondent to bear the applicant's costs of the application.

Key headnotes

Civil Procedure — Appeals — Interim Orders — Right of Appeal Distinguished from Appeal with Leave
An appeal lies as of right only against orders expressly listed in Order 40(1)(1) of the Civil Procedure Rules; an order staying execution of a decree is not so listed and is appealable only with leave of the trial court or the appellate court.
Civil Procedure — Appeals — Leave to Appeal — Procedure and Competence
Where an order is not appealable as of right, an applicant must first apply for leave to appeal to the trial court by motion on notice under Order 40(1)(3) before lodging an appeal; failure to obtain leave renders the appeal incompetent and liable to be struck out.
Civil Procedure — Appeals — Competence — Merits Irrelevant to Right of Appeal
The likelihood that an appeal will succeed on its merits does not entitle a party to appeal as of right; the competence of the appeal is determined independently of its prospects of success.

Legislation cited (5)

  • Civil Procedure Act s.68
  • Civil Procedure Act s.69(2)
  • Civil Procedure Rules Order 40(1)(1)
  • Civil Procedure Rules Order 40(1)(2)
  • Civil Procedure Rules Order 40(1)(3)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.