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Mulwana v UNS-SACCO Limited (Civil Appeal 49 of 2020)

Supreme Court · [2023] UGSC 66 · 2023 Appeal Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Ruling on a preliminary objection to the competence of a civil appeal filed in the High Court without leave to appeal.
Decision
Appeal struck out as incompetent for failure to obtain leave to appeal; costs awarded to the respondent.

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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 court held that a right of appeal is a creature of statute. A decision made under Order 36 of the Civil Procedure Rules is not appealable as of right under Order 44 rule 1; leave to appeal must first be sought under Order 44 rule 2 from the court that made the order. Leave is an essential step, not a mere procedural formality. As the appellant had not obtained leave before filing, the appeal was incompetent, could not be withdrawn, and was accordingly struck out with costs to the respondent.

Facts

The original suit between the parties was commenced in a lower court under Order 36 of the Civil Procedure Rules, the summary procedure. Following the decision in that suit, David Mulwana Kiberu filed a civil appeal in the High Court without first seeking leave to appeal from the court that made the order. At the hearing, counsel for the respondent raised a preliminary objection that the appeal was improperly before the court because leave had not been obtained from the lower court or the High Court. Counsel for the appellant contended that, the lower decision being a final judgment, the appellant was entitled to appeal as of right.

Issues

  1. Whether a civil appeal is competently before the court where the appellant did not first obtain leave to appeal against an order made under Order 36 of the Civil Procedure Rules.

Orders

  • Preliminary objection upheld.
  • Appeal struck out as incompetent.
  • Costs awarded to the respondent.

Key headnotes

Civil Procedure — Right of Appeal — Statutory Origin
A right of appeal exists only where it is conferred by statute; a litigant who seeks to appeal must point to a statutory provision granting that right.
Civil Procedure — Appeals — Leave to Appeal — Orders made under Order 36 CPR
A decision made under Order 36 of the Civil Procedure Rules is not among the orders appealable as of right under Order 44 rule 1; leave to appeal must first be obtained under Order 44 rule 2 from the court that made the order.
Civil Procedure — Appeals — Failure to Obtain Required Leave — Competence
Where leave to appeal is required but not obtained, the appeal is incompetent, cannot even be withdrawn, and must be struck out; leave is an essential step and not a mere procedural matter.

Legislation cited (6)

  • Magistrates Courts Act s.220(1)(a)
  • Civil Procedure Rules Order 44 rule 1(1)
  • Civil Procedure Rules Order 44 rule 1(2)
  • Civil Procedure Rules Order 44 rule 1(3)
  • Civil Procedure Rules Order 44 rule 2
  • Civil Procedure Rules Order 36 rule 3

Cases cited (4)

  • Alinyo v R [1974] EA 544
  • Matovu Sarah & 2 Others v Abacus Pharmacy (Africa) Ltd (Civil Appeal No. 11 of 2012)
  • Dr Sheikh Ahmed Mohammed Kisuule v Green Land Bank (in Liquidation) (Civil Appeal No. 11 of 2010)
  • Makhangu v Kibwamu [1995-1998] EA 175
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.