Wakilii

Bwengye & Another v Mashemererwa (Civil Appeal 17 of 2022)

High Court · [2024] UGHC 162 · 2024 Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court ruling dismissing application for leave to appear and defend and entering judgment for plaintiff
Decision
Appeal struck out as incompetent for failure to obtain leave to appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that appellants did not have an automatic right to appeal from an order dismissing an application for leave to appear and defend under Order 36 of the Civil Procedure Rules. Appellate jurisdiction is a creature of statute and must be specifically created by law. The order appealed from did not fall within the categories of orders appealable as of right under Section 76(1) of the Civil Procedure Act or Order 44 Rule 1(1) of the Civil Procedure Rules. The appellants should have sought leave to appeal under Order 44 Rule 1(2) before filing the appeal. The appeal was struck out as incompetent.

Outcome

Appeal struck out as incompetent for failure to obtain leave to appeal

Facts

The respondent filed Civil Suit No. 0020 of 2020 in the Chief Magistrate's Court at Kabale under Order 36 of the Civil Procedure Rules seeking recovery of UGX 20,000,000 allegedly lent to the first appellant, with the second appellant as guarantor. The appellants filed Miscellaneous Application No. 0040 of 2021 seeking unconditional leave to appear and defend the suit. On 7 June 2022, the Chief Magistrate dismissed the application and entered judgment for the respondent for UGX 16,000,000 with costs. The appellants filed an appeal to the High Court without first seeking leave to appeal. The respondent raised a preliminary objection that the appeal was incompetent for want of leave.

Issues

  1. Whether the appellants had an automatic right to appeal the ruling dismissing their application for leave to appear and defend, or whether they required leave to appeal.
  2. Whether the appeal was premature and incompetent for want of leave to appeal.

Orders

  • The appeal is struck out for being incompetent.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Appeals — Right of Appeal — Appellate Jurisdiction as Creature of Statute
Appellate jurisdiction is not inherent but must be specifically created by law and cannot be inferred or implied. The right to appeal is a creature of statute, and a party may only appeal where the law grants such a right.
Civil Procedure — Appeals — Appeals as of Right — Section 76(1) Civil Procedure Act and Order 44 Rule 1(1) Civil Procedure Rules
Section 76(1) of the Civil Procedure Act and Order 44 Rule 1(1) of the Civil Procedure Rules exhaustively enumerate the orders from which an appeal lies as of right. An order dismissing an application for leave to appear and defend under Order 36 of the Civil Procedure Rules does not fall within these categories and therefore requires leave to appeal under Order 44 Rule 1(2).
Civil Procedure — Appeals — Order 44 Rule 1(1)(k) — Leave to Continue Suit After Assignment or Devolution of Interest
Order 44 Rule 1(1)(k) of the Civil Procedure Rules, which provides for an appeal as of right from an order giving or refusing to give leave, applies only to leave under Order 24 Rule 9 (leave to continue a suit after assignment, creation or devolution of interest during pendency) and does not apply to leave to appear and defend under Order 36.
Civil Procedure — Constitutional Interpretation — Article 126(2)(e) and Procedural Rules
Article 126(2)(e) of the Constitution, which mandates substantive justice without undue regard to technicalities, was not intended to do away with rules of procedure. Procedural rules are handmaidens of justice and must be applied with due regard to the circumstances of each case, but failure to comply with mandatory procedural requirements such as obtaining leave to appeal renders an appeal incompetent.

Legislation cited (6)

Cases cited (3)

  • Baku Rapheal Obura and Another v Attorney General (Constitutional Appeal No. 1 of 2005)
  • Alinyo v R [1974] EA 544
  • Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)

Full judgment

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

Bwengye & Another v Mashemererwa (Civil Appeal 17 of 2022) [2024] UGHC 162 (28 February 2024)
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.