Bakamwoga v Kencuriko and Another (Civil Appeal 32 of 2003)

Court of Appeal · [2004] UGCA 31 · 2004 Preliminary Objection Upheld — Appeal Struck Out ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Preliminary objection at the hearing of a civil appeal seeking to strike out the notice of appeal and the appeal as incompetent

Decision

Appeal struck out as incompetent with costs to the respondents

The full judgment

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Holding

The Court upheld a preliminary objection that the notice of appeal and the appeal were incompetent. The notice of appeal was filed more than seven years after the impugned decision, without leave to extend time, contrary to Rule 75(2), and the record of appeal was served about one year and three months late, contrary to Rule 87(1). The Court held that there was inordinate delay in taking essential steps which was not satisfactorily explained, and that Article 126(2)(e) of the Constitution does not cure unexplained non-compliance with the procedural timetable set by the Rules. The appeal was struck out for incompetence with costs to the respondents.

Facts

The decision sought to be appealed was given on 2nd May 1994. The appellant filed his notice of appeal on 28th September 2001, more than seven years later, without obtaining leave of court to extend the time within which to file the notice of appeal as required by Rule 75(2). The record of appeal was filed on 2nd April 2003 and served on the respondents' counsel on 13th July 2004, approximately one year and three months later, instead of within the seven days required by Rule 87(1). At the hearing, counsel for the respondents raised a preliminary objection that the notice of appeal and the appeal were incompetent and prayed that they be struck out under Rule 81. Counsel for the appellant conceded the procedural points but argued they were merely procedural, relying on Article 126(2)(e) of the Constitution, and asked the court to excuse the delay and hear the appeal on the merits.

Issues

Whether the notice of appeal and the appeal were incompetent for having been filed grossly out of the time prescribed by the Rules of the Court of Appeal.
Whether Article 126(2)(e) of the Constitution could excuse the inordinate and unexplained delay in taking essential steps to file and prosecute the appeal.

Orders

The preliminary objection is upheld.
The appeal is struck out for being incompetent.
Costs to the respondents.

Key headnotes

Civil Procedure — Appeals — Failure to File Notice of Appeal and Record Within Prescribed Time — Incompetent Appeal

A notice of appeal filed outside the time prescribed by Rule 75(2) without leave to extend time, and a record of appeal served outside the time prescribed by Rule 87(1), render the appeal incompetent and liable to be struck out under Rule 81 of the Rules of the Court of Appeal.

Civil Procedure — Time Limits — Inordinate Delay — Requirement of Satisfactory Explanation

The rules of court provide a timetable within which essential steps in an appeal must be taken in order to avoid delays; any delay can only be excused if it is satisfactorily explained.

Constitutional Law — Article 126(2)(e) — Substantive Justice and Technicalities — Limits in Excusing Procedural Non-Compliance

Article 126(2)(e) of the Constitution does not relieve a party of compliance with the procedural timetable in the Rules of court where the failure to take essential steps is inordinate and not satisfactorily explained.

Legislation cited (4)

Rules of the Court of Appeal Rule 75(2)
Rules of the Court of Appeal Rule 87(1)
Rules of the Court of Appeal Rule 81
Constitution of the Republic of Uganda 1995 Article 126(2)(e)

Cases cited (1)

Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)

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.