Wakilii

Paul Kanyansi v Fred Hasibiri (Civil Application No. 319 of 2021)

Court of Appeal · [2025] UGCA 257 · 2025 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out a Notice of Appeal for failure to institute the appeal within the prescribed time
Decision
Application to strike out the Notice of Appeal dismissed with costs to the respondent

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Holding

The Court dismissed an application to strike out the respondent's Notice of Appeal. The respondent had lodged a Notice of Appeal in October 2018 but failed to institute the appeal within sixty days of the record of proceedings being made available. Under Rule 84(a) of the Court of Appeal Rules, the Notice of Appeal was automatically withdrawn by operation of law on expiry of that period. The Court held that there was therefore no live Notice of Appeal capable of being struck out, since striking out presupposes removing something that still exists. As the applicant had already lodged his own appeal, the application served no practical purpose, was moot, and constituted an abuse of court process. Dismissed with costs to the respondent.

Facts

The applicant was the successful party in High Court (Mbale) Civil Suit No. 127 of 2005. The respondent, dissatisfied with the decision, lodged a Notice of Appeal on 24 October 2018, received in the Court of Appeal on 25 October 2018, and applied for a typed and certified record of proceedings. The Acting Deputy Registrar of Mbale High Court, by letter dated 26 November 2020, informed both parties that the record of proceedings and judgment were ready; this was served on both parties on 8 December 2020. The respondent did not institute the appeal within sixty days, the deadline being 6 February 2021, and took no essential step for close to a year. The applicant filed this application on 5 November 2021 to strike out the Notice of Appeal. The applicant had himself already lodged an appeal (Civil Appeal No. 56 of 2021) against the respondent, which was pending hearing.

Issues

  1. Whether a Notice of Appeal that has been deemed withdrawn by operation of law, for failure to institute the appeal within the prescribed sixty days, remains capable of being struck out.
  2. Whether the application to strike out the Notice of Appeal was moot and an abuse of court process.

Orders

  • The application is dismissed.
  • Costs of the application awarded to the respondent.

Key headnotes

Civil Procedure — Appeals — Institution of Appeal — Effect of Default within Prescribed Time
Where a party who has lodged a notice of appeal fails to institute the appeal within the prescribed sixty days, the notice of appeal is automatically deemed withdrawn by operation of law under Rule 84(a) of the Court of Appeal Rules.
Civil Procedure — Appeals — Striking Out Notice of Appeal — Requirement of a Live Notice
An application to strike out a notice of appeal presupposes the existence of a live notice on the record; where the notice has already lapsed and been withdrawn by operation of law, there is nothing left to strike out.
Civil Procedure — Mootness — Declining to Decide Academic Questions
A court may decline to decide a matter which raises only a hypothetical or academic question where no live controversy affecting the rights of the parties remains, and pursuing such a matter constitutes an abuse of the court's process.

Legislation cited (4)

  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.43
  • 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.84

Cases cited (8)

  • Sanjay Tanna and the Electoral Commission v Ofwono Yeri Apollo (Election Application No. 8 of 2006)
  • Kasibante Moses v Katongole Singh Marwaha (Election Application No. 8 of 2012)
  • Mwiri Paul v National Council for Higher Education & 2 Ors (Civil Appeal No. 84 of 2016)
  • Borowski v Attorney General of Canada [1989] 1 SCR 342
  • Horizon Coaches Ltd v Francis Mutabazi & others (Civil Appeal No. 20 of 2001)
  • Margarete Lugarama v Nkumba College School (Miscellaneous Application No. 4 of 2013)
  • Shell Uganda Limited v Captain Naeem Chaudhry (Civil Appeal No. 12 of 2010)
  • Katayira Francis v Rogers Bosco Bugembe (Civil Application No. 22 of 2016)
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.