Wakilii

Kaijuka Richard v Kananura (Civil Application 10 of 2017)

Supreme Court · [2017] UGSC 40 · 2017 Application Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application in the Supreme Court to strike out a civil appeal, arising from Supreme Court Civil Appeal No. 10 of 2016
Decision
Application granted in part: strike-out under Rule 78 refused, but the appeal stands dismissed with costs to the applicant under Rule 90(4)

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Cited — treatment unverified cited in 5 (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 Court refused to strike out the appeal under Rule 78 because, although the Notice of Appeal and appeal had been filed out of time and the Court had declined to validate them, the respondent's counsel had withdrawn both the Notice of Appeal and the appeal before the application was heard — so there was nothing left to strike out, distinguishing authorities where the appeals remained on foot. However, under Rule 90(4), where the parties do not all consent to a withdrawal and the Court makes no contrary order, the appeal stands dismissed with costs. The applicant had not consented and no exempting order existed, so the appeal stood dismissed with costs to the applicant.

Facts

The parties were involved in business transactions giving rise to a dispute, which led the applicant to file HCCS No. 90 of 2008. Judgment for UGX 200,000,000 was entered for the applicant but later set aside on review. On appeal (Civil Appeal No. 42 of 2014), the Court of Appeal restored the award of UGX 200,000,000 on 4 November 2015. The respondent failed to pay, and the applicant executed by arrest warrant. The respondent then filed a Notice of Appeal nearly nine months out of time and Supreme Court Civil Appeal No. 10 of 2016. His applications to validate the Notice of Appeal (Civil Application No. 11 of 2016) and the related Reference (No. 15 of 2016) were both dismissed with costs. The applicant then sought to strike out the appeal with costs. Before that application was heard, the respondent's counsel wrote to the Registrar withdrawing the Notice of Appeal and the appeal, contending no costs were due.

Issues

  1. Whether the circumstances of the case warranted striking out the appeal with costs under Rule 78 of the Supreme Court Rules, where the Notice of Appeal was filed out of time, validation was refused, and the appeal had since been withdrawn.
  2. Whether the applicant was entitled to costs of the withdrawn appeal and of this application.

Orders

  • The order to strike out Supreme Court Civil Appeal No. 10 of 2016 under Rule 78 is denied.
  • Supreme Court Civil Appeal No. 10 of 2016 stands dismissed with costs to the applicant under Rule 90(4) of the Supreme Court Rules.
  • The respondent pays half the costs of this application.

Key headnotes

Civil Procedure — Striking Out of Appeals — Rule 78 — No Appeal Subsisting to Strike Out
Rule 78 of the Supreme Court Rules cannot be invoked to strike out a Notice of Appeal or an appeal where the appellant has already withdrawn both before the strike-out application is heard, because there is no notice or appeal remaining for the court to strike out.
Civil Procedure — Withdrawal of Appeal — Rule 90(4) — Costs Where Withdrawal Not Consented To
Under Rule 90(4) of the Supreme Court Rules, where the parties to an appeal do not all consent to its withdrawal and the court makes no contrary order on the appellant's application, the appeal stands dismissed with costs against the withdrawing appellant.
Civil Procedure — Costs — Entitlement on Withdrawal Effected by Letter to the Registrar
An appellant who withdraws an appeal by letter to the Registrar without the consent of the opposing party, and without a court order exempting him from costs, is liable to pay the costs of the withdrawal.

Legislation cited (4)

  • Judicature (Supreme Court Rules) Directions r.2(2)
  • Judicature (Supreme Court Rules) Directions r.72(2)
  • Judicature (Supreme Court Rules) Directions r.78
  • Judicature (Supreme Court Rules) Directions r.90(4)

Cases cited (3)

  • Godfrey Magezi v Sudhir Ruparelia (Civil Appeal No. 10 of 2002)
  • Tropical Africa Bank Ltd v Grace Were Muhwana (Civil Appeal No. 3 of 2012)
  • Goodman Agencies Ltd v Attorney General (Civil Appeal No. 1 of 2012)
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.