Changa & 8 Others v Toskin (Miscellaneous Application 81 of 2022)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The court held that an appeal dismissed under the mandatory provisions of Order 5 rule 1 and Order 43 rule 11 of the Civil Procedure Rules for failure to serve the memorandum of appeal and notice of hearing cannot be reinstated by an application to set aside. The dismissal was not discretionary but statutorily mandated. The only available remedy is to apply for leave to file a fresh appeal out of time.

Outcome

Application dismissed — applicants advised to apply for leave to file fresh appeal out of time

Facts

The applicants were defendants in Civil Suit No. 05 of 2021 before the Chief Magistrate's Court of Kapchorwa, concerning land ownership in Kween District. Judgment was entered against them on 23 May 2022. They filed Civil Appeal No. 81 of 2022 through their advocates. The appeal was dismissed on 13 March 2023 for failure to serve the memorandum of appeal and notice of hearing on the respondent, and for want of prosecution. The applicants claimed they only learned of the dismissal in January 2024 and that their former advocates failed to file proof of service despite actual service. They applied under Order 43 rule 16 and other provisions to set aside the dismissal order and re-admit the appeal.

Issues

1. Whether the application discloses triable issues worthy of determination
2. Whether an appeal dismissed under Order 5 rule 1 and Order 43 rule 11 of the Civil Procedure Rules can be reinstated by an application under Order 43 rule 16

Orders

• Application dismissed with costs to the respondent.

Rules and key headnotes

Legislation cited (14)

• Civil Procedure Act Cap 282 s.64(e)
• Civil Procedure Act Cap 282 s.98
• Judicature Act Cap 16 s.33
• Civil Procedure Rules SI 71-1 Order 5 rule 1
• Civil Procedure Rules SI 71-1 Order 5 rule 2
• Civil Procedure Rules SI 71-1 Order 5 rule 3
• Civil Procedure Rules SI 71-1 Order 17 rule 5
• Civil Procedure Rules SI 71-1 Order 43 rule 11
• Civil Procedure Rules SI 71-1 Order 43 rule 14
• Civil Procedure Rules SI 71-1 Order 43 rule 15
• Civil Procedure Rules SI 71-1 Order 43 rule 16
• Civil Procedure Rules SI 71-1 Order 49 rule 2
• Civil Procedure Rules SI 71-1 Order 52 rule 1
• Civil Procedure Rules SI 71-1 Order 52 rule 3

Cases cited (4)

• Abel Belemesa v Yesero Mugenyi (HCMA No. 126 of 2019)
• Bonco Arabe & spanol V. Bank of Uganda, SCCA No. 8 of 1198
• Alex Mulyabintu v Case Western Reserve University and Another (CACA No. 90 of 2013)
• Bitamisi Namuddu v Rwabuganda Godfrey (Supreme Court Civil Appeal No. 16 of 2014)

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