Wakilii

Senkungo & 5 Others v Mukasa (Miscellaneous Application 4 of 2013)

Supreme Court · [2014] UGSC 409 · 2014 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion in the Supreme Court for extension of time to file a notice of appeal and for stay of execution, arising from Court of Appeal Civil Appeal No. 35 of 2006
Decision
Application allowed; extension of time granted and execution of the Court of Appeal decree stayed pending the intended appeal

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court held the application was properly before it, since every court has inherent power to stay its own orders and rules 2(2) and 41(2) confer wide powers to meet the ends of justice. It granted an extension of time, finding sufficient reason: the duty to transmit a copy of the notice of appeal to the Supreme Court registrar lay on the Registrar of the Court of Appeal under rule 73, not on counsel, and the Court of Appeal's delayed determination of a correction application compounded the delay. A litigant's lawyer's inadvertence is not visited on the litigant. Stay of execution was granted to prevent the intended appeal being rendered nugatory.

Facts

The parties had litigated over two pieces of land at Mawogola. The respondent, claiming through his grandfather who died in 1941 and for whose estate he held letters of administration, lost in the High Court but succeeded in the Court of Appeal in Civil Appeal No. 35 of 2006. The applicants, who lost in the Court of Appeal, wished to appeal to the Supreme Court. Their advocates lodged a notice of appeal in the Court of Appeal four days after the decision of 26 July 2010. A copy of that notice was not filed in the Supreme Court, attributed to the inadvertence of the lawyers' clerk, an error discovered only when preparing the record of appeal. The delay was further affected by the Court of Appeal's late determination of the respondent's application to correct its judgment, which held up certification of the record's correctness. The respondent had begun taking steps to evict the applicants and recover the suit property.

Issues

  1. Whether the application for stay of execution was properly before the Supreme Court or ought first to have been made to the Court of Appeal under rule 41(1).
  2. Whether the applicants showed sufficient reason to justify an extension of time to file in the Supreme Court a copy of the notice of appeal already lodged in the Court of Appeal.
  3. Whether the execution of the decree of the Court of Appeal ought to be stayed pending the determination of the intended appeal.

Orders

  • The applicants are given 14 days' extension of time within which to ensure that the notice of appeal is delivered to the Supreme Court.
  • The applicants are to file their Memorandum of Appeal and Record of Appeal.
  • Execution of the decree in Court of Appeal Civil Appeal No. 35 of 2006 is stayed pending the determination of the applicants' intended appeal.
  • Costs of this application are to abide the result of the intended appeal.

Key headnotes

Civil Procedure — Extension of Time — Sufficient Reason — Delay Attributable to a Court Official
Delay attributable entirely to a court official, such as the Registrar of the Court of Appeal failing to discharge a statutory duty, constitutes sufficient reason for an extension of time under rule 5 of the Rules of the Supreme Court.
Civil Procedure — Notice of Appeal — Duty to Transmit Copy to the Supreme Court Registrar
Under rule 73 of the Rules of the Supreme Court the duty to send a copy of a lodged notice of appeal to the registrar of the Supreme Court lies on the Registrar of the Court of Appeal, not on counsel for the intending appellant, regardless of any contrary practice on the ground.
Civil Procedure — Default — Inadvertence of Counsel Not Visited on the Litigant
The inadvertence, mistake or omission of a litigant's lawyer or agent should not be visited on a litigant who gave timely instructions.
Civil Procedure — Notice of Motion — Failure to Cite the Enabling Rule
Failure to cite the rule under which an application is brought is no longer a fatal defect, in view of article 126(2)(e) of the Constitution requiring substantive justice to be administered without undue regard to technicalities.
Civil Procedure — Stay of Execution — Jurisdiction and the Nugatory Principle
Every court has inherent power to stay its own orders, and where a notice of appeal has been lodged under rule 72 the court may, under rule 6(2)(b), order a stay of execution to prevent a successful appeal from being rendered nugatory.

Legislation cited (15)

  • Rules of the Supreme Court r.2(2)
  • Rules of the Supreme Court r.5
  • Rules of the Supreme Court r.6(2)(b)
  • Rules of the Supreme Court r.40(1)
  • Rules of the Supreme Court r.41(1)
  • Rules of the Supreme Court r.41(2)
  • Rules of the Supreme Court r.42
  • Rules of the Supreme Court r.43
  • Rules of the Supreme Court r.72(1)
  • Rules of the Supreme Court r.73
  • Rules of the Supreme Court r.74(1)
  • Judicature Act (Cap 13) s.6(1)
  • Constitution of Uganda art.132(2)
  • Constitution of Uganda art.126(2)(e)
  • Practice Direction No. 2 of 2005 para.5

Cases cited (12)

  • Godfrey Magezi and Another v Sudhir Ruparelia (Civil Application No. 10 of 2002)
  • Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 3 of 2014)
  • Joel Kato and Another v Nuulu Nalwoga (Civil Application No. 12 of 2011)
  • National Housing & Construction Corporation v Kampala District Land Board and Chemical Distributors Ltd (Civil Appeal No. 6 of 2002)
  • National Enterprises Corporation vs Mukisa Biscuit Manufacturing Co Ltd, Miscellaneous Application No. 7 of 1998 (Court of Appeal, unreported)
  • Florence Nabatanzi v Noame Binsobedde (Civil Application No. 6 of 1987)
  • Shanti v Hindocha (1973) EA 207
  • Mugo v Wanjiru and Another (1970) EA 481
  • Bhatt v Tejawant Singh (1962) EA 497
  • Wilson v Church (No. 2) (1879) 12 Ch D 454
  • Odougkara vs Kamunda (1968) EA 210
  • Abdul Suleiman Vs Nyaki Farmers (1966)
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.