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Nabasa Jolly v Enid Bnnomugisha and Another (Civil Appeal No. 176 of 2017)

Court of Appeal · [2026] UGCA 37 · 2026 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Court of Appeal from a High Court decision which had dismissed a first appeal against a Chief Magistrate's refusal to reinstate a civil suit dismissed for want of prosecution
Decision
Second appeal dismissed as incompetent; preliminary objections upheld; no order as to costs.

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Holding

The Court of Appeal upheld the preliminary objections and dismissed this second appeal as incompetent. The memorandum of appeal to the High Court was filed on 21 March 2016, more than three months after the record of proceedings was availed on 28 October 2015 — well beyond the 30 days prescribed by section 79(1) of the Civil Procedure Act — and without any application for leave to extend time. An appeal filed out of time without leave is incompetent and must be struck out; the first appellate judge erred in failing to consider the objection, which goes to the root of jurisdiction. As the second appeal arose from an incompetent appeal, it was dismissed, with no order as to costs because the error was occasioned by the court.

Facts

The appellant, administratrix of the estate of the late Francis Munyankole, sued the respondents in the Chief Magistrates Court at Mbarara (Isingiro) for recovery of land, mesne profits, damages for trespass, a permanent injunction and an eviction order, alleging that her husband had purchased land which the second respondent demolished and occupied after claiming to have bought it from the first respondent. The suit was dismissed for want of prosecution. Her application to set aside the dismissal and reinstate the suit was dismissed by the trial magistrate. She appealed to the High Court, which dismissed the appeal, attributing the failures to attend court to the negligence of her counsel. She brought this second appeal. On the record, the memorandum of appeal to the High Court had been filed on 21 March 2016, more than three months after the certified record of proceedings was availed on 28 October 2015 — beyond the 30 days allowed by section 79(1) of the Civil Procedure Act — and no leave to extend time was sought. Counsel for the respondents had raised this as a preliminary objection in the High Court, but the first appellate judge did not address it.

Issues

  1. Whether the appellant's appeal in the High Court was filed out of time without an extension of time within which to file it.
  2. Whether the first appellate judge erred in failing to consider the preliminary objection that the appeal was filed out of time.
  3. Whether the first appellate judge erred in attributing the negligence of counsel to the appellant and in dismissing the appeal without analysing the circumstances that led the appellant to miss court.
  4. Whether a second appeal arising out of an incompetent appeal in the High Court is itself competent.

Orders

  • The preliminary objections are upheld.
  • The appeal is dismissed as incompetent, having arisen out of an incompetent appeal in the High Court.
  • No order as to costs in this court and in the court below.

Key headnotes

Civil Procedure — Appeals — Time Limits Under Section 79(1) Civil Procedure Act
Except as specifically provided by law, every appeal must be entered within 30 days of the date of the decree or order appealed against; an appeal filed outside that period without first obtaining leave to extend time is incompetent and must be struck out.
Civil Procedure — Appeals — Exclusion of Time for Preparation of the Record of Proceedings
Although section 79(2) of the Civil Procedure Act excludes the time taken by the court to prepare a copy of the decree, order and proceedings, an appellant who seeks to rely on that exclusion must provide evidence enabling the court to compute the excluded time; absent such evidence, and where the memorandum of appeal is filed well beyond the prescribed period after the record is made ready, the appeal is out of time.
Civil Procedure — Preliminary Objections — Objection Going to Jurisdiction
A preliminary objection that an appeal was filed out of time goes to the root of the court's jurisdiction and must be considered as a matter of course; a judge's failure to address such an objection is an error.
Civil Procedure — Second Appeals — Competence
A second appeal that arises out of an incompetent appeal in the lower appellate court is itself incompetent and must be dismissed, and the appellate court cannot proceed to consider the remaining grounds of appeal.
Statutory Interpretation — Right of Appeal as a Creature of Statute
A right of appeal can only be founded on a statute, and a party who seeks to avail himself of that right must strictly comply with the conditions prescribed by the statute.
Civil Procedure — Costs — Error Occasioned by the Court
Where the determinative error was occasioned by the court itself, the appellate court may decline to award costs and make no order as to costs both in the appeal and in the court below.

Legislation cited (10)

  • Civil Procedure Act s.79(1)
  • Civil Procedure Act s.79(2)
  • Civil Procedure Act s.98
  • Civil Procedure Rules Order 9 rule 22
  • Civil Procedure Rules Order 9 rule 23
  • Civil Procedure Rules Order 44 rule 1(b)
  • Court of Appeal Rules rule 83(2)
  • Court of Appeal Rules rule 83(3)
  • Court of Appeal Rules rule 87
  • Constitution of the Republic of Uganda Article 126(2)(e)

Cases cited (7)

  • Pamela Sabina Mbabazi v Henry Mugisha Bazira (Court of Appeal Civil Appeal No. 44 of 2004)
  • Molly Kyalikunda & 4 Others v Ephraim Turinawe (Supreme Court Civil Application No. 27 of 2010); [2012] UGSC 18
  • Kibuuka Musoke William & Another v Dr Apollo Kaggwa (Court of Appeal Civil Appeal No. 46 of 1997)
  • Harnam Singh Bhogal t/a Harnam Singh & Co v Jadva Karsan (1953) 20 EACA 17
  • General Parts (U) Ltd & Another v Non-Performing Assets Recovery Trust (NPART) (Civil Application No. 49 of 2003); [2003] UGCA 22
  • Joseph Bakamwoga v Fabiano Kenturiko & Another (Court of Appeal Civil Application No. 32 of 2003); [2004] UGCA 31
  • Utex Industries Ltd v Attorney General (Supreme Court Civil Application 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.