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Prof. Murindwa Rutanga v Makerere University (Civil Application No. 55 of 2019)

Court of Appeal · [2025] UGCA 229 · 2025 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion to strike out a notice of appeal for failure to take essential steps to prosecute the intended appeal
Decision
Application granted; respondent's notice of appeal struck out with costs to the applicant

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Holding

The Court held that an intending appellant has the duty to actively take the essential steps to prosecute an intended appeal, and that the respondent, having filed a notice of appeal but no memorandum or record of appeal within the prescribed 60 days, failed to take an essential step under rule 82 of the Court of Appeal Rules. Such failure cannot be overlooked as a mere technicality. The Court first proceeded ex-parte because the respondent ignored mandatory directions to file an affidavit in reply and submissions, then granted the application and struck out the notice of appeal with costs to the applicant.

Facts

The respondent, Makerere University, had sued the applicant in the High Court in Miscellaneous Application No. 235 of 2017, which the High Court decided in favour of the applicant on 28 November 2018. On 29 November 2018 the respondent filed a notice of appeal in the Court of Appeal seeking to challenge the High Court interlocutory order. The applicant filed the present application on 22 February 2019 to strike out the notice of appeal. The respondent never filed a memorandum or record of appeal, nor served its appeal, after lodging the notice of appeal. At the hearing on 27 January 2025 the respondent's counsel sought and was granted time to file an affidavit in reply and submissions but filed nothing by the date of the ruling, prompting the Court to proceed ex-parte.

Issues

  1. Whether the Court should proceed ex-parte where the respondent failed to comply with directions to file an affidavit in reply and written submissions.
  2. Whether the respondent failed to take an essential step in the proceedings in prosecuting the intended appeal.
  3. What remedies are available.

Orders

  • The application is granted.
  • The notice of appeal filed by the respondent is struck out.
  • Costs awarded to the applicant.

Key headnotes

Civil Procedure — Appeals — Striking out a notice of appeal — Failure to take an essential step
A person served with a notice of appeal may apply to strike it out where some essential step in the proceedings has not been taken within the prescribed time; an intending appellant who files a notice of appeal but no memorandum or record of appeal within the prescribed period has failed to take an essential step and the notice of appeal will be struck out.
Civil Procedure — Appeals — Duty of the intending appellant to prosecute the appeal
It is the duty of the intending appellant to actively take the necessary steps to prosecute the intended appeal; it is not the duty of the court or any other person to carry out that duty for the appellant.
Civil Procedure — Non-compliance with rules — Whether a mere technicality
Non-compliance with substantive law and procedural rules cannot be overlooked as a mere technicality.
Civil Procedure — Hearing — Proceeding ex-parte for non-compliance with court directions
Where a party fails to comply with clear and mandatory directions of the court to file an affidavit in reply and written submissions within the time prescribed, the omission constitutes material non-compliance and the court may proceed to determine the matter ex-parte.

Legislation cited (7)

  • Judicature (Court of Appeal Rules) Directions r.2(2)
  • Judicature (Court of Appeal Rules) Directions r.53(2)(c)
  • Judicature (Court of Appeal Rules) Directions r.78(1)
  • Judicature (Court of Appeal Rules) Directions r.82
  • Judicature (Court of Appeal Rules) Directions r.83(1)
  • Judicature (Court of Appeal Rules) Directions r.84(a)
  • Civil Procedure Rules Order 44

Cases cited (3)

  • Kasibante Moses v Electoral Commission (Election Petition Application No. 07 of 2012)
  • Andrew Maviri v Jomayi Property Consultants Ltd (Civil Application No. 274 of 2014)
  • Utex Industries v Attorney General (Civil Appeal No. 52 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.