Rwabuhemba Tim Musinguzi v Harriet Kamakume (Civil Application No. 142 of 2009)

Court of Appeal · [2009] UGCA 34 · 2009 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application for a certificate of importance/leave to appeal to the Court of Appeal against a High Court decision on appeal

Decision

Application for a certificate of importance dismissed; no third appeal permitted

The full judgment

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Cited — treatment unverified cited in 26 (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 the application was competent because, having been refused an informal certificate by the High Court, the applicant was entitled to apply to the Court of Appeal under rule 40 of the Judicature (Court of Appeal Rules). On the merits, the Court found the provisions of the Children Act were clear and had been correctly interpreted by the appellate judge, who properly applied Article 31 of the Constitution on parental rights. The memorandum of appeal raised no special grounds and no question of public and general importance. No justice would be done by allowing a third appeal, so the application for a certificate was dismissed with costs to the respondent.

Facts

The respondent is the natural mother of a minor, Ashley Kijumba. When the child was two years old, the respondent travelled to London in 2002, leaving the child with its father. The applicant, a paternal uncle, then took custody of the infant. In 2006 the applicant applied for and obtained legal custody in the Family Court at Nakawa. The respondent appealed; the matter was eventually heard by a Chief Magistrate at Buganda Road, who dismissed the appeal. The respondent then appealed to the High Court (Egonda-Ntende J), which allowed the appeal, finding that the application in the lower court had been brought under a wrong section of the Children Act and that the mother, as of constitutional right under Article 31, was entitled to custody. The applicant sought a certificate of importance/leave to appeal to the Court of Appeal, contending the matter raised questions of public and general importance touching the custody of children.

Issues

Whether the application for a certificate of importance was competent given that the applicant had only made an informal application to the High Court.
Whether the intended appeal raises questions of public and general importance on matters of law touching custody of children warranting a certificate to allow a third appeal.

Orders

Application dismissed.
Costs of the application to the respondent.

Key headnotes

Appeals — Certificate of Importance — Competence of application to Court of Appeal following refusal of informal application by High Court

Where the High Court has refused an informal application for a certificate to appeal to the Court of Appeal, the aggrieved party is entitled to apply to the Court of Appeal for that certificate under rule 40(1)(b) of the Judicature (Court of Appeal Rules) Directions, and such an application is competent.

Third Appeals — Certificate of Importance — Threshold under section 73 of the Civil Procedure Act

A certificate of importance permitting a third appeal will be granted only where the court below has not properly settled some aspect of the law, or where justice requires that the appeal be heard; an appeal raising no special grounds on settled law does not meet this threshold.

Custody of Children — Parental Rights — Article 31 of the Constitution and the welfare principle

A parent has a fundamental constitutional right under Article 31 to care for and raise her child, and this right cannot be ousted by a wealthy relative merely on grounds of greater means; a parent may only be denied custody where a competent authority determines, in accordance with law, that separation is in the best interest of the child.

Legislation cited (8)

Civil Procedure Act s.73
Judicature Act s.10
Judicature (Court of Appeal Rules) Directions rule 40(1)(b)
Children Act s.3
Children Act s.73
Children Act s.76
Children Act s.80(2)
Constitution of the Republic of Uganda Article 31

Cases cited (1)

Namuddu vs Uganda [2004] Z EA 2007

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.