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Muhamad Kizito v Aisha Nabisere Mukamusinzi (Civil Application 48 of 2024; CML Application No. 48 of 2024)

Court of Appeal · [2024] UGCA 368 · 2024 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion to strike out a notice of appeal and a second appeal for failure to take an essential step within the prescribed time
Decision
Application allowed; notice of appeal and Civil Appeal No. 808 of 2023 struck out, with the substantive dispute left to a fresh divorce cause already filed in the lower court

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Holding

The court struck out the notice of appeal and the second appeal for failure to take an essential step within time. The lower court record was certified ready by 2 October 2023, and the appellant's own counsel had accessed and used it by 11 October 2023 in related proceedings, contradicting the claim that it was received only in March 2024. The 60-day period under Rule 83 therefore expired in December 2023, yet the memorandum and record of appeal were filed only in April 2024, after the strike-out application had been filed. The appellant neither sought leave to file out of time nor obtained the Registrar's certificate of time taken, and her counsel's conduct was dilatory.

Facts

Judgment of the High Court at Mpigi (first appellate court) was delivered on 26 June 2023. The appellant filed a notice of appeal and a letter requesting the lower court proceedings on 7 July 2023. The Registrar of the High Court, Mpigi, by letter dated 24 January 2024, notified that the record of proceedings and judgment requested in July 2023 had been prepared and certified on 2 October 2023. The appellant's counsel attached and used the certified lower court record on 11 October 2023 in answer to a fresh divorce petition (Divorce Petition No. 005 of 2023) filed at Kibibi Court, that answer being served on 16 October 2023. Despite the record being available from October 2023, the appellant filed the memorandum and record of appeal only on 15 April 2024, after the respondent had, on 30 January 2024, filed the application to strike out the notice of appeal. The appellant did not seek leave to file out of time or to validate the appeal, nor did she obtain a Registrar's certificate of the time taken to prepare the record.

Issues

  1. Whether the appellant took the essential step of lodging a memorandum and record of appeal within the time prescribed by Rule 83 of the Court of Appeal Rules.
  2. Whether the notice of appeal and the appeal should be struck out under Rule 82 of the Court of Appeal Rules for failure to take an essential step within the prescribed time.

Orders

  • The notice of appeal is struck out.
  • Civil Appeal No. 808 of 2023 is struck out.
  • Costs of the application and the appeal in this court and the courts below are awarded to the applicant.

Key headnotes

Civil Procedure — Appeals — Essential Steps — Duty to Prosecute Appeal in Time
It is the duty of the intending appellant, not the court or any other person, to actively take all the necessary steps to bring and prosecute an appeal within the prescribed time, and failure to perform such a fundamentally necessary act renders the prior legal process a nullity subject to the court's permission.
Civil Procedure — Appeals — Computation of Time — Rule 83 Court of Appeal Rules
An appeal is instituted by lodging a memorandum and record of appeal in the registry within sixty days after the date the notice of appeal was lodged, excluding only the time certified by the Registrar as required to prepare and deliver the record of appeal to the appellant.
Civil Procedure — Appeals — Registrar's Certificate of Time Taken
It is not the Registrar's duty, on their own initiative, to issue a certificate of the time taken to prepare the record of appeal; the burden lies on the intending appellant to request such a certificate as part of the duty to actively prosecute the appeal.
Civil Procedure — Appeals — Dilatory Conduct — Article 126 and Procedural Safeguards
The court's mandate to do substantive justice under Article 126 of the Constitution must go hand in hand with respect for procedural safeguards, and dilatory tactics, negligent acts or lapses of counsel that amount to an abuse of court process and subvert the expeditious disposal of appeals ought not to be tolerated.

Legislation cited (3)

  • Court of Appeal Rules r.82
  • Court of Appeal Rules r.83
  • Constitution of Uganda art.126

Cases cited (3)

  • [2020] UGCA 4
  • [2025] UGCA 2
  • [1995] UGSC 38
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.