James Bemba and Another v Victoria Tea Estate Ltd (Civil Application No. 24 of 1997)

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 of Appeal dismissed the respondent's application to strike out the appeal. The application failed because the applicant erroneously relied on the 1996 Rules of the Court of Appeal rather than the Supreme Court Rules in force when the notice of appeal was filed in 1996, since an appeal must conform to the rules in force at the time of filing. Further, the applicant had not complied with the mandatory Rule 75(1) requiring lodging of a notice of address for service within fourteen days of being served with the notice of appeal. Having failed to furnish an address for service, the respondent disqualified itself from being served and lost the right to complain of late service.

Outcome

Application to strike out the appeal dismissed with costs; appeal allowed to proceed

Facts

The notice of appeal was filed on 4 April 1996, bringing the appeal under the then-applicable Supreme Court Rules (Statutory Instrument No. 19). The respondent, through counsel Mr. Kayondo S.C., brought a notice of motion to strike out the appeal, citing the 1996 Rules of the Court of Appeal as the rules allegedly breached, even though those rules were not in force when the appeal was filed. The respondent had been served with the notice of appeal but had not lodged a notice of full and sufficient address for service. The appellants' counsel objected on the basis that the wrong rules had been cited and that the respondent had not complied with the mandatory requirement to lodge an address for service.

Issues

1. Whether the appeal should be struck out where the applicant cited the wrong (current) Rules rather than the Rules in force at the time the appeal was filed.
2. Whether a respondent who fails to lodge a notice of address for service under Rule 75(1) may complain of late service of the memorandum and record of appeal.

Orders

• Application to strike out the appeal dismissed.
• Costs of the application awarded to the respondent (intended appellant).

Rules and key headnotes

Legislation cited (8)

• Rules of the Supreme Court r.75(1)
• Rules of the Supreme Court r.78
• Rules of the Supreme Court r.87(1)
• Rules of the Court of Appeal r.77
• Rules of the Court of Appeal r.81
• Rules of the Court of Appeal r.87
• Rules of the Court of Appeal r.42(1)
• Rules of the Court of Appeal r.42(2)

Cases cited (1)

• Hussein Mohamed v Augustine Kyeyune (Civil Appeal No. 7 of 1990)

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