Dr. Kasirivu and Others v Bororoza and Others (Civil Application No. 85 of 2008)

Observed later treatment

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 although Rule 82 in terms permits only a person served with a notice of appeal to apply to strike it out, the court's inherent powers under Rule 2(2) and section 98 of the Civil Procedure Act allow it to entertain such an application to prevent abuse of process. On the merits, the notice of appeal annexed to the process-server's affidavit bore no signature or embossment by the applicants' advocates, no affidavit of service was sworn by the process-server, and the affidavit relied upon was sworn six months later. The Court found no personal service as required and declined to invoke Article 126(2)(e), striking out the notice of appeal with costs.

Outcome

Notice of appeal struck out with costs

Facts

On 25 March 2008 the High Court dismissed the respondents' application for judicial review concerning an executive decision. The respondents filed a notice of appeal on 26 March 2008 and lodged Civil Appeal No. 45 of 2008. They also obtained an interim injunction restraining the applicants from evicting them from suit land in Buliisa pending determination of the appeal. The applicants contended they were never served with a copy of the notice of appeal within the seven days prescribed by Rule 78(1). The respondents' process-server, Mugabi Juma, claimed service was effected on the applicants' advocates on 28 March 2008, with the notice attached to other pleadings, but the annexed notice bore no signature or stamp of the applicants' advocates. The process-server swore no affidavit of service; instead an affidavit serving as proof of service was sworn six months later. The applicants applied to strike out the notice of appeal for failure to take an essential step.

Issues

1. Whether a person not served with the notice of appeal may apply to strike it out under Rule 82.
2. Whether the respondents effected proper personal service of the notice of appeal on the applicants within the time prescribed by Rule 78(1).
3. Whether Article 126(2)(e) of the Constitution could be invoked to cure the defect in service.

Orders

• The Notice of Appeal in Civil Appeal No. 45 of 2008 is struck out with costs.

Rules and key headnotes

Legislation cited (8)

• Court of Appeal Rules r.43
• Court of Appeal Rules r.82
• Court of Appeal Rules r.78(1)
• Court of Appeal Rules r.2(2)
• Civil Procedure Act s.98
• Civil Procedure Rules O.5 r.10
• Civil Procedure Rules O.5 r.14
• Constitution of Uganda art.126(2)(e)

Cases cited (4)

• Reamaton Ltd v Uganda Corporation Creameries Ltd and Henry Kawalya (Civil Appeal No. 53 of 1997)
• Narshidas M. Mehta and Company Limited v Baron v Verheyen (1956) 2 TLR 300
• M.B Automobile v Kampala Bus Service (1966) EA 480
• Banque Russe v Clarke, [1894] W N, 203

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Nasaza Saidah and Others v Genza Godfrey (Miscellaneous Application 3288 of 2024)
• Kasirivu Atwooki & 3 Ors v Bamurangye Baroroza & 53 Ors [2010] UGSC 25

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