Kalubenge and 18 Others v Banyina and Another (Civil Appeal No. 23 of 2012)

Court of Appeal · [2021] UGCA 61 · 2021 Appeal Struck Out ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal from a High Court ruling striking out a suit and refusing a temporary injunction

Decision

Appeal struck out for want of prosecution; no order as to costs

The full judgment

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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 of Appeal struck out the appeal under Rule 2(2) of the Court of Appeal Rules in the interests of justice and to prevent abuse of process. The appellants' counsel failed to file written submissions as directed, failed over nine years to take steps to prepare the main appeal for hearing or conferencing, and failed to substitute legal representatives for deceased parties under Rule 85. The court found these omissions showed the parties were no longer interested in prosecuting the appeal. The court also observed that, the matter being an appeal against refusal of a temporary injunction in a long-standing land dispute with existing adjudications, the remedy sought had become moot. No order as to costs was made.

Facts

The appellants applied in the High Court at Fort Portal for a temporary injunction restraining the respondents from evicting them from suit land, in connection with Civil Suit No. 032 of 2011. The trial Judge found the appellants had no lawful claim, holding the suit was res judicata as the land had been litigated in the Rwehingo LC1 Court in 1994 and 1997 and in High Court Civil Appeal No. 0019 of 2009; that the claim was barred by limitation as the second respondent had occupied the land since 1949; and that the appellants came to court with unclean hands having been placed on the land by extra-judicial means. The trial Judge struck out the main suit with costs and reinstated earlier High Court orders. On appeal, the appellants' counsel was unprepared, sought a two-month adjournment, had not filed directed written submissions, and noted that some parties, including a deceased appellant and the second respondent, had died without substitution of legal representatives. The respondents and their counsel were absent.

Issues

Whether the appeal should be struck out where the parties failed to prepare for hearing, comply with case management directions, and substitute legal representatives of deceased parties.

Orders

This Appeal stands struck out.
No order as to costs.

Key headnotes

Civil Procedure — Inherent Powers — Striking Out Appeal to Prevent Abuse of Process

The Court of Appeal has unfettered discretion under Rule 2(2) of its Rules to strike out an appeal in order to attain the ends of justice and prevent abuse of process, including where the parties' inaction shows they are no longer interested in prosecuting the appeal.

Civil Procedure — Adjournments — Judicial Discretion and Sufficient Cause

The grant of an adjournment is not automatic even where unopposed; it is a matter of judicial discretion to be granted only where the applicant shows sufficient cause.

Civil Procedure — Substitution of Deceased Parties — Rule 85

Where a party to an appeal has died, the appeal cannot proceed in that person's name unless an interested party applies under Rule 85 to have the deceased's legal representative substituted; failure to do so over a prolonged period evidences want of interest in prosecuting the appeal.

Civil Procedure — Temporary Injunctions — Mootness Where Status Quo Has Changed

An appeal against refusal of a temporary injunction may become a moot remedy where, after prolonged delay and existing judicial decisions on the dispute, the status quo the injunction would protect has already changed.

Legislation cited (3)

Court of Appeal Rules r.2(2)
Court of Appeal Rules r.30(1)(a)
Court of Appeal Rules r.85

Cases cited (2)

Pandya v R (1957) EA 336
Uganda Development Bank v National Insurance Corporation (Civil Appeal No. 28 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.