Emalu v Etalu (Miscellaneous Application 95 of 2023)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The High Court granted leave to appeal out of time subject to conditions. The applicant must deposit security for costs of Shs. 16,834,000 within one month, file fresh Notice of Appeal and Memorandum of Appeal within 15 days thereafter, and set the appeal for hearing within two months. The court exercised powers under Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act to afford the applicant another opportunity to be heard given the continuing dispute over land ownership.
Outcome
Leave to appeal out of time granted subject to conditions including deposit of security for costs and filing fresh appeal documents within specified timeframes
Facts
The applicant was unsuccessful in Civil Appeal No. 17 of 2022 decided on 01/04/2022 in the lower trial court. On 11/04/2022, counsel filed a notice of appeal in the lower trial court and requested proceedings records. Thirty days elapsed before a Memorandum of Appeal could be filed in the High Court. The applicant's former lawyers mistakenly filed a memorandum of appeal without first obtaining leave to appeal out of time. The applicant then instructed new counsel to take over the matter. The underlying dispute concerned land ownership from Civil Suit No. 44 of 2015 where the applicant lost and orders for vacant possession were issued. The respondent confirmed non-service of the Memorandum of Appeal and that improper procedures had been followed.
Issues
- Whether the applicant should be granted leave to file an appeal out of time.
- Whether the court should validate the late filing and service of the Memorandum of Appeal.
Orders
- Application allowed subject to conditions.
- Applicant to deposit security for costs of Shs. 16,834,000 as per Certificate of Taxation dated 16/06/2022 within one month from date of ruling.
- Upon depositing security, applicant to file fresh Notice of Appeal and Memorandum of Appeal within 15 days and serve respondent with affidavit of service.
- Applicant to set appeal for hearing within two months thereafter.
Rules and key headnotes
Legislation cited (2)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.