Wakilii

Tebajanga & Ors v Gukina [2020] UGSC 36

Supreme Court · 2020 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out a notice of appeal for failure to take an essential step within the prescribed time
Decision
Application allowed; respondent's notice of appeal struck out with costs

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court struck out the respondent's notice of appeal under rules 78 and 80(a) of the Judicature (Supreme Court Rules) Directions for failure to institute the appeal within 60 days of receiving notice that the record of proceedings was ready. The court held that a party who fails to take an essential step in time must promptly apply for extension under rule 5; the respondent never applied for nearly four years and showed no vigilance. Mistake of counsel was unproven beyond her bare word, and the Court of Appeal's failure to endorse the decree was immaterial because a decree is not a required document of the record of appeal. There must be an end to litigation. Application allowed with costs.

Facts

Kiwalabye Edith Grace (deceased) and Gukina Sarah ran a business partnership until 2003 when a dispute arose. The respondent filed an originating summons to dissolve the partnership; some property was shared by consent and the remaining assets went to trial before the Principal Judge, who in January 2008 held the disputed property belonged to the partnership and should be shared equally. The respondent appealed to the Court of Appeal, which dismissed the appeal on 24 June 2015. The respondent lodged a notice of appeal in the Court of Appeal on 25 June 2015 and requested certified copies of the record of proceedings. On 27 October 2015 the Registrar notified her counsel that the record was ready; counsel acknowledged receipt on 2 November 2015 but never collected it. The respondent never filed a memorandum of appeal, paid security for costs, or applied for extension of time, and took no step for roughly four years, prompting the applicants (administrators of the deceased's estate) to apply to strike out the notice of appeal.

Issues

  1. Whether this was a proper case for striking out the notice of appeal for failure to take an essential step within the prescribed time.
  2. Whether the respondent was prevented by sufficient cause from instituting her appeal within the prescribed time so as to be excused under rule 5.
  3. Whether the Court of Appeal's failure to endorse the decree affected the validity of the intended appeal.

Orders

  • The notice of appeal lodged on 25th June 2015 is struck out under Rules 78 and/or 80(a) of the Judicature (Supreme Court Rules) Directions.
  • The application to strike out the notice of appeal is allowed with costs to the applicants.

Key headnotes

Civil Procedure — Appeals — Striking Out Notice of Appeal for Failure to Institute Appeal in Time
Where a party who has lodged a notice of appeal fails to institute the appeal within 60 days of the lodgement or of receipt of the certified record of proceedings, the party is taken to have withdrawn the notice and it may be struck out under rules 78 and 80(a) of the Judicature (Supreme Court Rules) Directions.
Civil Procedure — Extension of Time — Sufficient Cause — Duty of Vigilance and Prompt Application
A litigant who fails to take an essential step within the prescribed time must apply for extension of time under rule 5 as soon as the mistake is discovered; unexplained inordinate delay and a lack of vigilance and due diligence remove the party from the protection of rule 5, and the court cannot aid an applicant who is at fault.
Civil Procedure — Record of Appeal — Decree Not a Required Document
The absence of a decree does not per se affect the validity of an appeal, because a decree is not among the documents that must form part of the record of appeal from the Court of Appeal to the Supreme Court under rule 83(2).
Civil Procedure — Mistake of Counsel — Sufficient Cause — Burden of Proof
The burden of proving sufficient cause lies on the party alleging it; a bare assertion that counsel failed to act, unsupported by proof of instructions given or of inquiries made on the progress of the appeal, does not discharge that burden or constitute sufficient cause.

Legislation cited (6)

  • Judicature (Supreme Court Rules) Directions r.5
  • Judicature (Supreme Court Rules) Directions r.78
  • Judicature (Supreme Court Rules) Directions r.79(1)
  • Judicature (Supreme Court Rules) Directions r.79(2)
  • Judicature (Supreme Court Rules) Directions r.80(a)
  • Judicature (Supreme Court Rules) Directions r.83(2)

Cases cited (7)

  • Robert Kitariko vs. David Twino Katama, Election Petition MKA No. 2 of 1981 (1982) UGSC
  • Delia Almaida v Carmo Rui Almaida (Civil Application No. 6 of 1990)
  • F.L Kaderbhai & Anor v Shamsherali Zaver Virji et al (Civil Application No. 20 of 2008)
  • Engineer Ephraim Turinawe & Anor v Molly Kyalimpa Turinawe (Civil Appeal No. 1 of 2012)
  • Godfrey Magezi & Anor v Sudhir Rupaleria (Civil Appeal No. 10 of 2002)
  • Hussein Abdalla Hamdan v Hussein Tharel Amuhi Malkan (Civil Appeal No. 4 of 2001)
  • Boney M. Katatumba v Waheed Karim (Civil Application No. 27 of 2007)
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.