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Bukenya and Another v Kirumira and 2 Others (Miscellaneous Application No. 64 of 2021)

Court of Appeal · [2023] UGCA 86 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out a notice of appeal and civil appeal for failure to take an essential step within the prescribed time
Decision
Notice of appeal and Civil Appeal No. 28 of 2018 struck out with costs against the 1st respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a party who files a notice of appeal must lodge the memorandum of appeal within 60 days, a mandatory requirement under Rule 83(1) COA Rules. Merely making a written request for the typed record does not by itself excuse compliance; the appellant must actively follow up on that request. Kirumira failed to file the memorandum for nearly four years after lodging the notice, and although the Registrar wrongly notified the applicants' firm about the ready record, it remained Kirumira's duty to pursue the matter. This inordinate delay amounted to negligence, and he was privy to his advocates' dilatory conduct. The notice of appeal and appeal were struck out with costs.

Outcome

Notice of appeal and Civil Appeal No. 28 of 2018 struck out with costs against the 1st respondent

Facts

The applicants were the successful parties in High Court Civil Suit No. 220 of 2008. The 1st respondent, Godfrey Kirumira, being dissatisfied, filed and served a notice of appeal on 17 April 2018 and, on 16 April 2018, wrote to the Registrar of the High Court Land Division requesting a typed record of proceedings. By a letter dated 12 August 2020, the Registrar wrote to M/s Odokel Opolot & Co., Advocates (counsel for the intended respondents), stating the record was ready for collection; this letter was not copied to Kirumira or his lawyers. Kirumira never filed a memorandum of appeal. Nearly four years passed after the notice of appeal without any documented step to engage the Registrar over the delay. The applicants brought this application in June 2022 to strike out the notice and appeal for failure to take an essential step within the prescribed time.

Issues

  1. Whether the notice of appeal and Civil Appeal No. 28 of 2018 could be struck out for failure to take an essential step within the prescribed time.
  2. What remedies are available to the parties.

Orders

  • Civil Appeal Number 28 of 2018 and the Notice of Appeal by which it was lodged are struck out.
  • The costs of the application shall be borne by the 1st respondent, Godfrey Kirumira.

Rules and key headnotes

Appeals — Notice of Appeal — Failure to Lodge Memorandum of Appeal Within Prescribed Time
A party who files a notice of appeal must lodge the memorandum and record of appeal within 60 days under Rule 83(1) of the Court of Appeal Rules, and failure to do so within the prescribed time deems the appeal withdrawn under Rule 84(1) and renders it liable to be struck out under Rule 82.
Appeals — Enlargement of Time — Effect of Request for Typed Record of Proceedings
Making a written request for the certified record of the lower court does not by itself place an appellant outside the mandatory 60-day period; the appellant must actively follow up on that request, and the time is only excluded under Rule 83(2) where the Registrar certifies the time required to prepare and deliver the typed record.
Appeals — Delay — Requirement to Explain Delay Satisfactorily
For any delay in taking a required step in an appeal to be excused, it must be explained satisfactorily; unexplained inordinate delay, such as nearly four years' inaction after filing a notice of appeal, amounts to a failure to take the essential step to prosecute the appeal.
Litigant and Advocate — Responsibility for Advocate's Conduct
While a litigant cannot ordinarily be punished for the errors of his advocate, that privilege does not extend to a litigant who is privy to the advocate's actions or is himself guilty of dilatory conduct; a litigant who instructs lawyers to appeal is not completely absolved from following up the progress of the appeal.

Legislation cited (8)

Cases cited (10)

  • Baku Obudra and Others v Attorney General (Constitutional Appeal No. 1 of 2005)
  • Attorney General versus Shah (No.4) [1971] EA 50
  • Andrew Maviri v Jomayi Property Consultants Ltd (Civil Application No. 274 of 2014)
  • Utex Industries Ltd v Attorney General (Civil Appeal No. 52 of 1995)
  • All Muss Properties Ltd and 2 Others v CTM Uganda Ltd and 2 Others (Civil Application No. 379 of 2017)
  • Njagi v Munyiri [1975] EA 179
  • Juliet Kalema v William Kalema and Another (Civil Application No. 24 of 2004)
  • Sepiriya Kyamuresire v Justine Bikanchurika Bagambe (Civil Appeal No. 20 of 1995)
  • Phillip Ongom (Capt) and Another v Catherine Nyero Owota (Civil Appeal No. 14 of 2001)
  • Mohamad B. Kasasa v Jasphar Buyonga Sirasi Bwogi (Civil Appeal No. 42 of 2008)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bukenya and Another v Kirumira and 2 Others (Miscellaneous Application No. 64 of 2021) [2023] UGCA 86 (9 March 2023)
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.