Wakilii

Biethi & 3 ors v Nangobi & 2 ors (Civil Application No.080 of 2014)

Court of Appeal · [2015] UGCA 14 · 2015 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for a certificate that an intended third appeal to the Supreme Court concerns a matter of law of great public or general importance, and for stay of execution
Decision
Application for certificate and stay of execution dismissed with costs to the respondents

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court declined to grant a certificate under Section 6(2) of the Judicature Act for a third appeal to the Supreme Court. The proposed questions — concerning the circumstances under which a testator makes a will, whether a bequest could be converted into a gift inter vivos, and the language for making wills — were held to raise issues of fact, not law, and in any event did not transcend the particular dispute to qualify as matters of great public or general importance. Adopting the persuasive principles in the Kenyan Steyn decision, the Court found the matters were personal to the family. Having refused the certificate, the Court found no basis to grant stay of execution and dismissed the application with costs.

Facts

The first applicant made a will in Luganda in 2000 bequeathing land at Magamaga to the respondents. In 2005 he purportedly withdrew the bequest and sold the land to the fourth applicant, Josephine Kairu, who took occupation and operated a school there. The respondents challenged the sale before the Iganga District Land Tribunal, later transferred to a Grade I Magistrate's Court, which found for the respondents. The applicants appealed to the High Court at Jinja, which upheld the sale and the testator's right to withdraw the bequest. The respondents appealed to the Court of Appeal, which held that the document executed amounted to a gift inter vivos, declared the sale null and void, and ordered refund of the purchase price. The applicants sought a certificate to mount a third appeal to the Supreme Court on points concerning will-making, and a stay of execution.

Issues

  1. Whether the questions the applicants intended to raise on a third appeal to the Supreme Court concerned matters of law of great public or general importance warranting a certificate under Section 6(2) of the Judicature Act.
  2. Whether an order for stay of execution should be granted pending the intended appeal.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Key headnotes

Appeals — Third Appeal to Supreme Court — Certificate under Judicature Act s.6(2)
The Court of Appeal may certify a third appeal to the Supreme Court only where the intended appeal concerns a matter of law of great public importance or a matter of law of general importance; the power to certify is restricted to these two instances.
Wills — Circumstances and Language of Making — Questions of Fact
The circumstances under which a will is made, and the words or language used in a will, are issues of fact and not issues of law, and therefore cannot ground a certificate for a third appeal limited to questions of law.
Appeals — Certification — Meaning of Great Public or General Importance
A question of law of great public or general importance must transcend the circumstances of the particular case and have a significant bearing on the public interest; determinations of fact between parties and matters personal to litigants do not qualify for certification.
Stay of Execution — Pending Intended Third Appeal
Where a certificate for a third appeal is refused, there is no basis for an order of stay of execution pending that appeal.
Affidavits — Illiterate Deponents — Certificate of Translation
An affidavit by an illiterate deponent that is not accompanied by a certificate of translation as required by the Illiterates Protection Act is inadmissible, but the defect may be cured where the application is supported by other valid affidavits.

Legislation cited (2)

  • Judicature Act (Cap 13) s.6(2)
  • Illiterates Protection Act (Cap 78)

Cases cited (3)

  • Namudu Christine v Uganda (Criminal Appeal No. 3 of 1999)
  • Charles Lwanga Masengere v God Kabagambe and 2 Others (Civil Application No. 125 of 2009)
  • Hermanus Phillippus Steyn vs Giovanni Gnecchi Application No. 4 of 2010 (Supreme Court of Kenya)
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.