Wakilii

Wanyama Bwandene Seperia v Kampala Capital City Authority (Civil Application 26 of 2021)

Court of Appeal · [2024] UGCA 37 · 2024 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out the respondent's notice of appeal and appeal for failure to take an essential step (lodging the memorandum and record of appeal within time)
Decision
Application allowed; Civil Appeal No. 17 of 2021 struck out for being filed out of time, with costs to the applicant

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Cited — treatment unverified cited in 8 (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 of Appeal struck out the respondent's appeal for failure to take an essential step. It first dismissed the respondent's preliminary objection that the application had been served out of time, accepting the applicant's explanation (supported by the deployment date of the endorsing Deputy Registrar) that the application was filed in 2021 but endorsed and served in 2022. On the merits, the respondent did not specifically answer the affidavit averments that the record and memorandum of appeal were filed out of time without leave; relying on Gandesha and SEREFACO, the Court treated the unchallenged averments as true. The respondent's own admission of late filing confirmed the omission, warranting striking out.

Facts

The applicants obtained judgment in a judicial review cause challenging the respondent's decision to halt their deployment due to budgetary constraints. The respondent lodged a notice of appeal but did not serve the applicants with a lodged memorandum and record of appeal. The applicants wrote to the court and were told no such documents were on record. They filed Civil Application No. 26 of 2021 to strike out the notice of appeal for failure to lodge the memorandum and record within 60 days. Hours later, the respondent served a record and memorandum of appeal, which were out of time and filed without leave. The respondent objected that the strike-out application itself was served out of time, alleging it had been endorsed by court in November 2021 but served in November 2022. The applicant showed the endorsing Deputy Registrar was only deployed to the Court in December 2021, so the application was in fact endorsed in November 2022 and served the next day.

Issues

  1. Whether the application to strike out the notice of appeal was incompetent for having been served out of time.
  2. Whether the respondent omitted to take an essential step in the appellate process by failing to lodge a memorandum and record of appeal within the prescribed time.
  3. Whether the applicant was entitled to the orders sought.

Orders

  • The preliminary objection on late service of the application is rejected.
  • The application is allowed with costs to the applicant.
  • Civil Appeal No. 17 of 2021 is struck out for being filed out of time.

Key headnotes

Civil Procedure — Appeals — Essential Steps Doctrine — Lodging Memorandum and Record of Appeal
Lodging the memorandum and record of appeal within the time prescribed by the Court of Appeal Rules is an essential step in the appellate process; failure to take that step, without leave of court to file out of time, warrants striking out the appeal on the application of the respondent.
Civil Procedure — Affidavit Evidence — Unchallenged Averments Deemed Admitted
Where an applicant supports an application by affidavit or other credible evidence and the respondent does not specifically answer those averments, the averments, if not intrinsically incredible, stand unchallenged and are presumed true.
Civil Procedure — Service of Process — Whether Application Served Out of Time
A point of law that an application was served out of time fails where the documentary record and surrounding circumstances show the application was endorsed by court on a later date than alleged and served promptly thereafter.

Legislation cited (6)

  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.82
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.83
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.112
  • Civil Procedure Act s.27
  • Civil Procedure Rules S.I. 71-1 O.49 r.2
  • Civil Procedure Rules S.I. 71-1 O.5 r.1

Cases cited (8)

  • Ibrahim Abiriga Y.A. v Musema Mudathir Bruce (Election Petition Application No. 24 of 2016)
  • Utex Industries v Attorney General (Civil Appeal No. 52 of 1995)
  • Andrew Maviri v Jomayi Property Consultants (Civil Application No. 274 of 2014)
  • Muwanga Kivumbi v Attorney General (Constitutional Appeal No. 06 of 2011)
  • Kanyabwera v Tumwebwe [2005] 2 EA 86
  • H.G. Gandesha v G.J. Lutaya (Civil Application No. 14 of 1989)
  • SEREFACO Consultants Ltd v EURO Consult BV (Civil Application No. 16 of 2007)
  • Chief V.C. Obumseli v Chinyelugo P. Uwakwe (2019) LPELR-46937 (SC)
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.