Wakilii

Erabu v Ewiu and Another (Miscellaneous Application 11 of 2023)

High Court · [2023] UGHCCD 243 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to file notice of appeal and memorandum of appeal out of time, arising from execution proceedings following dismissal of civil suit and review application in Chief Magistrate's Court
Decision
Application granted; applicant given until end of August 2023 to file notice of appeal and memorandum of appeal

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.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court granted the applicant leave to file a notice of appeal and memorandum of appeal out of time. The court held that delay in obtaining court proceedings is sufficient cause for extension of time under section 79(2) of the Civil Procedure Act. The court overruled the preliminary objection that a decree must be extracted and attached to a memorandum of appeal, following Court of Appeal authority that an appeal is against the judgment, not the decree, and that substantive justice should prevail over technicalities under Article 126(2)(e) of the Constitution.

Outcome

Application granted; applicant given until end of August 2023 to file notice of appeal and memorandum of appeal

Facts

The applicant sued the respondents in the Chief Magistrate's Court of Kaberamaido for a declaration of ownership of land measuring approximately four acres. Judgment was delivered on 4 February 2021 against the applicant. The applicant applied for review, which was dismissed with costs. Execution proceedings followed, and the applicant was committed to civil prison for non-payment of a taxed bill of costs totalling UGX 7,985,000. He paid UGX 5,000,000 and was released but failed to pay the balance of UGX 2,985,000. He was committed again on 15 February 2023 for six months. The applicant requested typed proceedings on 15 February 2021 and again on 17 October 2022 but did not receive them until 5 May 2023. The applicant filed this application seeking leave to file a notice of appeal and memorandum of appeal out of time.

Issues

  1. Whether there is a proper case for grant of an order for a stay of execution?
  2. Whether the applicant should be granted leave to file a Notice of Appeal and Memorandum of Appeal out of time?
  3. Whether the Memorandum of Appeal already filed should be validated?

Orders

  • Application allowed with no order as to costs.
  • Applicant directed to lodge a notice of appeal and any Memorandum of Appeal with the court's registrar not later than the last working day of August 2023.

Rules and key headnotes

Civil Procedure — Appeals — Extension of Time — Sufficient Cause — Delay in Obtaining Court Proceedings
Delay in obtaining court proceedings which are the subject of an intended appeal constitutes sufficient cause for extension of time to file an appeal under section 79(2) of the Civil Procedure Act.
Civil Procedure — Appeals — Memorandum of Appeal — Requirement to Extract and Attach Decree
An appeal by its very nature is against the judgment or reasoned order and not the decree extracted from the judgment. The extraction of a decree is a mere technicality which cannot co-exist with the constitutional requirement under Article 126(2)(e) that courts administer substantive justice without undue regard to technicalities.
Civil Procedure — Extension of Time — Factors to be Considered
In an application for extension of time to file an appeal, the court must consider the length of delay, the reason for delay, the possibility or chances of success, and the degree of prejudice to the other party. Once a delay is not accounted for, it does not matter the length of the delay; there must always be an explanation for the period of delay.
Civil Procedure — Extension of Time — Computation of Time — Exclusion of Time Taken to Obtain Proceedings
In computing the period of limitation for filing an appeal, the time taken by the court or registrar in making a copy of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded under section 79(2) of the Civil Procedure Act.

Legislation cited (12)

Cases cited (15)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Hon Theodore Ssekikubo and Others v The Attorney General and Others (Constitutional Application No. 3 of 2014)
  • Kyambogo University v Prof Isaiah Omolo Ndiege (Court of Appeal Civil Appeal No. 341 of 2013)
  • Degeya Trading Stores (U) Ltd versus Uganda Revenue Authority No. 16 of 1996
  • Kenganzi Angella v Metl (U) Ltd (Miscellaneous Application No. 471 of 2017)
  • Mambu Stella v Minday Nicholas (High Court Civil Appeal No. 1 of 2016)
  • Ruryabeita Frank v Beyunga Kenneth and 3 Others (Civil Appeal No. 59 of 2020)
  • Kibuuka Musoke William v Dr Apollo Kaggwa (Court of Appeal Civil Appeal No. 46 of 1997)
  • Banco Arabe Espanol v Bank of Uganda (Court of Appeal Civil Appeal No. 42 of 1998)
  • Hodandi Daniel v Yolamu Engondi (Court of Appeal Civil Appeal No. 67 of 2003)
  • Mulindwa George William v Kisubika Joseph (Supreme Court Civil Appeal No. 12 of 2014)
  • Delvi v Diamond Concrete Company [1974] EA 493
  • Mugo and others v Wanjiru [1970] EA 481
  • Delia Almeida v C Almeida (Supreme Court Civil Appeal No. 15 of 1990)
  • Ujagar Singh vs Runda Coffee Estates Ltd

Full judgment

↓ Download PDF

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

Erabu v Ewiu and Another (Miscellaneous Application 11 of 2023) [2023] UGHCCD 243 (27 July 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.