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Kansiime v Himalaya Traders Limited and 5 Others (Civil Application 23 of 2021)

Supreme Court · [2023] UGSC 23 · 2023 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application in the Supreme Court to strike out the respondents' notices of appeal and appeal
Decision
Application to strike out the notice of appeal dismissed with costs; application against the 1st, 2nd and 6th respondents struck out with costs

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Holding

The applicant sought to strike out the respondents' notices of appeal and appeal for late service and failure to institute the appeal in time. The Court held that an appeal not yet filed when the application was lodged cannot be struck out, as a notice of appeal is not the appeal and rule 78 envisages no pre-emptive strike. On service, a document is only lodged once endorsed by the registrar, so the seven days under rule 74 run from endorsement (14 April 2021), not filing; the registrar's delay cannot prejudice the litigant. Service on 20 April 2021 was therefore in time. The application was dismissed with costs.

Facts

The applicant had appealed to the Court of Appeal against a High Court judgment declaring him a trespasser on suit land. The Court of Appeal delivered judgment on 1 April 2021. The 3rd, 4th and 5th respondents, aggrieved, filed a notice of appeal in the registry on 12 April 2021, but the registrar did not endorse it until 14 April 2021. The notice was served on the applicant's counsel on 20 April 2021. The applicant filed this application in the Supreme Court on 11 June 2021 seeking to strike out the respondents' notices of appeal and the appeal, contending that the notice was served out of the seven days prescribed by rule 74 and that no appeal had been filed within time. The respondents' substantive appeal (Civil Appeal No. 19 of 2021) was filed on 2 July 2021, after this application was lodged.

Issues

  1. Whether the 3rd, 4th and 5th respondents' notice of appeal was served out of time.
  2. Whether the 3rd, 4th and 5th respondents failed to institute their appeal as required by law.
  3. Whether the applicant is entitled to the remedies sought.

Orders

  • The applicant's application as against the 3rd, 4th and 5th respondents stands dismissed with costs to the 3rd, 4th and 5th respondents.
  • The applicant's application as against the first respondent is struck out with costs to the first respondent.
  • The applicant's application as against the 2nd and 6th respondents is struck out with costs to the 2nd and 6th respondents.

Key headnotes

Civil Procedure — Striking Out — Application to Strike Out an Appeal Not Yet Filed
Where no appeal has been filed at the time an application to strike out is lodged, the appeal cannot be struck out because it does not exist on the court record; a notice of appeal is not the appeal, and the rules envisage no pre-emptive strike against a future appeal.
Civil Procedure — Lodging of Documents — Endorsement by the Registrar
A document is only 'lodged' within the meaning of the rules once it has been endorsed by the registrar showing the date and time of lodgement; the registrar's endorsement completes the process of lodgement, and mere physical filing at the registry without endorsement is insufficient.
Civil Procedure — Service of Notice of Appeal — Reckoning of Time under Rule 74
The seven-day period for service of a notice of appeal under rule 74(1) of the Judicature (Supreme Court Rules) Directions runs from the date the registrar endorses the notice, not the date it is physically filed, because a litigant cannot serve until the endorsed notice is made available; delay by the registrar in endorsement cannot be visited on the litigant.
Statutory Interpretation — Disjunctive 'or' — Scope of Rule 78
The disjunctive 'or' in rule 78 of the Judicature (Supreme Court Rules) Directions means an applicant may apply to strike out either the notice of appeal or the appeal, as the case may be, but not both, and the application is confined to what has been filed on the record at the time it is made.

Legislation cited (13)

  • Judicature (Supreme Court Rules) Directions r.2(2)
  • Judicature (Supreme Court Rules) Directions r.42
  • Judicature (Supreme Court Rules) Directions r.43
  • Judicature (Supreme Court Rules) Directions r.72(2)
  • Judicature (Supreme Court Rules) Directions r.74(1)
  • Judicature (Supreme Court Rules) Directions r.78
  • Judicature (Supreme Court Rules) Directions r.79(2)
  • Judicature (Supreme Court Rules) Directions r.11
  • Judicature (Court of Appeal Rules) Directions r.46
  • Judicature (Court of Appeal Rules) Directions r.43
  • Judicature (Court of Appeal Rules) Directions r.11
  • Judicature (Court of Appeal Rules) Directions r.10
  • Civil Procedure Rules O.9 r.1(1)

Cases cited (2)

  • Simon Tendo Kabenge v Barclays Bank (U) Ltd and Philip Dandee (Civil Appeal No. 17 of 2015)
  • Kasibo v Mboizi and Another (Election Petition Application No. 6 of 2021)
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.