Wakilii

Dr. S.B. Kinyatta and Another v Subramanian Gopalan and Another (Civil Application 108 of 2003)

Court of Appeal · [2004] UGCA 27 · 2004 Application Granted — Appeal Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out a notice of appeal for failure to file a record and memorandum of appeal within the prescribed time
Decision
Notice of appeal struck out as incompetent with costs to the applicants

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Cited — treatment unverified cited in 11 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal held that an intending appellant bears the duty to take all steps necessary to prosecute an appeal, including filing a record and memorandum of appeal within 60 days of lodging a notice of appeal as required by Rule 82. This requirement is mandatory and failure to comply renders the appeal incompetent. Despite being informed in September 2001 that the record was ready, the respondent had done nothing for over two and a half years and advanced no reasonable excuse. The court found the respondent's supporting affidavit deceitful. The appeal was held incompetent and struck out with costs to the applicants.

Facts

The applicants succeeded in High Court Civil Suit No. 444 of 1998, judgment being delivered on 19 January 2000. On 2 February 2000 the respondent lodged a notice of appeal, served on the applicant's counsel on 3 February 2000, together with a letter calling for the record of proceedings. On 13 September 2001 the Registrar of the High Court wrote to the respondent's advocates informing them that the record was ready for collection. Despite this, the respondent never filed a memorandum or record of appeal. By the time of the application more than four years had passed since the notice of appeal and over two and a half years since the record was ready. The respondent's counsel relied on an affidavit asserting the Registrar's letter was never received and that delay was beyond their control, but the court found these averments false and deceitful upon scrutiny of the annexed letters.

Issues

  1. Whether the respondent's notice of appeal should be struck out for failure to file a record and memorandum of appeal within the time prescribed by the Court of Appeal Rules.

Orders

  • The appeal is struck out as incompetent.
  • Costs of the appeal awarded to the applicants.
  • Costs of this application awarded to the applicants.

Key headnotes

Civil Procedure — Appeals — Duty of Intending Appellant to Prosecute Appeal
It is the duty of an intending appellant to actively take the steps necessary to prosecute an appeal; this duty rests neither on the respondent nor on the court.
Civil Procedure — Appeals — Failure to File Record and Memorandum within Time — Incompetent Appeal
Rule 82 of the Court of Appeal Rules requires an intending appellant to file a record and memorandum of appeal within 60 days of lodging the notice of appeal; this requirement is mandatory and failure to comply renders the appeal incompetent and liable to be struck out.
Civil Procedure — Striking Out Appeal — Absence of Reasonable Excuse for Delay
Where there is a high degree of negligence in prosecuting an appeal and no reasonable excuse is advanced for the delay, the court will strike out the appeal as incompetent.

Legislation cited (4)

  • Court of Appeal Rules r.42(2)
  • Court of Appeal Rules r.43(1)
  • Court of Appeal Rules r.81
  • Court of Appeal Rules r.82

Cases cited (2)

  • Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
  • Pearl Flowers Ltd (Civil Application No. 41 of 1996)
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.