Wakilii

Hon Masika Apollo and Others v Wandibah Enosi [2026] UGHC 759

High Court · 2026 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion to strike out a civil appeal for failure to serve the memorandum of appeal within the prescribed time
Decision
Appeal declared incompetent; Respondent given 14 days to apply for extension of time to serve, failing which the appeal stands struck out automatically

Observed later treatment

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Holding

The Court held that filing a memorandum of appeal with the registry is an act of institution and does not constitute service on the opposite party; service must be effected within 21 days under Order 43 Rule 2(3), with any extension sought within a further 15 days under Order 5 Rule 1(2). As the memorandum filed on 30 October 2023 reached the Applicants' advocates only in March 2024, and no sworn explanation for the default was offered, the appeal was declared incompetent. Rather than strike it out immediately, the Court granted the Respondent 14 days to apply for extension of time, failing which the appeal would stand struck out automatically. Unsworn assertions in submissions were disregarded.

Outcome

Appeal declared incompetent; Respondent given 14 days to apply for extension of time to serve, failing which the appeal stands struck out automatically

Facts

The dispute arose from a family and succession contest over the estate of the late Samson Wesonga, litigated in the Mbale Chief Magistrate's Court as Miscellaneous Causes No. 023 of 2022 and No. 071 of 2022. The Chief Magistrate ruled in Miscellaneous Cause No. 071 of 2022 on 4 July 2023. The Respondent, aggrieved, filed a Notice of Appeal and Memorandum of Appeal with the Deputy Registrar of the High Court at Mbale on 30 October 2023, commencing Civil Appeal No. 102 of 2023. Service of the memorandum on the Applicants was due by 20 November 2023, and any application for extension of time by 5 December 2023. The Applicants deposed that no service occurred within that period and that their advocates, M/S Luchivya & Co. Advocates, first received the memorandum in March 2024, exhibited as Annexture "C". The Applicants filed this application on 28 February 2024 to strike out the appeal. The Respondent, appearing in person, deposed only that he had deposited the documents with the Deputy Registrar and awaited a hearing date. In written submissions he also asserted, without affidavit or documentary support, that the third Applicant had died, and made allegations against the Applicants' counsel.

Issues

  1. Whether the Respondent served the Memorandum of Appeal on the Applicants within the time prescribed by Order 43 Rule 2(3) of the Civil Procedure Rules.
  2. What remedies are available where a memorandum of appeal is not served within the prescribed time and no application for extension of time is made.
  3. Whether the Court could act on an unsworn assertion in written submissions that one of the Applicants had died, and on allegations of professional misconduct against counsel.

Orders

  • Civil Appeal No. 102 of 2023 is declared incompetent as currently constituted by reason of the Respondent's failure to serve the Memorandum of Appeal within the prescribed time.
  • The Respondent is granted fourteen (14) days from the date of the Ruling to file a formal application under Order 51 Rule 6 of the Civil Procedure Rules and Section 79(1)(b) of the Civil Procedure Act for extension of time to serve the Memorandum of Appeal.
  • Should the Respondent fail to file that application within 14 days, Civil Appeal No. 102 of 2023 shall stand struck out automatically without further order of this Court.
  • Costs of this Application are awarded to the Applicants.

Rules and key headnotes

Civil Procedure — Appeals — Service of Memorandum of Appeal — Filing Distinguished from Service
Depositing a memorandum of appeal with the court registry is an act of institution of proceedings and does not amount to service on the opposite party; an appellant remains obliged to serve the memorandum on the respondent or the respondent's advocates within 21 days of filing under Order 43 Rule 2(3) of the Civil Procedure Rules.
Civil Procedure — Service of Process — Order 5 Rule 1(2) — Consequence of Non-Service and Failure to Seek Extension
Where a document required to be served is not served within 21 days and no application for extension of time is made within 15 days thereafter, the proceedings are liable to dismissal, service of all documents being governed by the manner prescribed for service of summons under Order 49 Rule 2.
Civil Procedure — Extension of Time — Discretion — Right to Be Heard as Last Resort
Enlargement of time to serve a pleading should ordinarily be granted unless the defaulting party is guilty of unexplained and inordinate delay, offers no reasonable explanation, or the extension would prejudice the opposing party; because denying a litigant a hearing is a court's last resort, a procedurally defective appeal may be declared incompetent while affording the defaulting party a final, time-limited opportunity to apply for extension of time rather than being struck out immediately.
Evidence — Affidavits — Uncontroverted Averments Deemed Admitted — Submissions Are Not Evidence
Averments in an affidavit that are not specifically controverted on affidavit by the opposing party are taken to be admitted, and written submissions do not constitute evidence; accordingly a court cannot act on an assertion of fact, such as the death of a party, made only in submissions and unsupported by affidavit or documentary proof.
Civil Procedure — Death of a Party — Substitution — Order 24 Rules 4 and 10
A person named as a party remains a party on the record until a formal application concerning their death is filed and determined under Order 24 Rules 4 and 10 of the Civil Procedure Rules.
Civil Procedure — Scope of Interlocutory Application — Allegations of Advocates' Misconduct
Allegations of professional misconduct against an advocate, including prayers that the advocate cease practising, fall outside the scope of an interlocutory application and are properly the province of the Uganda Law Society and the Law Council under the Advocates Act.

Legislation cited (10)

Cases cited (10)

Full judgment

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Hon Masika Apollo and Others v Wandibah Enosi [2026] UGHC 759 (23 June 2026)
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.