Wakilii

Kabazi v Kabazi (Civil Appeal 118 of 2023)

High Court · [2024] UGHC 782 · 2024 Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court decision dismissing Land Suit No. 07 of 2023 as res judicata
Decision
Appeal struck out for failure to obtain leave of court before filing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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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

An appeal against an order dismissing a suit on a preliminary point of law, such as res judicata, does not lie as of right. Section 79 of the Civil Procedure Act and Order 44 rule 1(1) of the Civil Procedure Rules do not include orders on preliminary objections among those appealable as of right. Leave must first be sought from the court making the order under Order 44 rules 2 and 3 before filing an appeal. Since the appellant failed to seek leave before instituting the appeal, the appeal was incompetent and struck out.

Outcome

Appeal struck out for failure to obtain leave of court before filing

Facts

The appellant, Aida Kabazi, one of the administrators of the estate of the late Isreal Kabazi, appealed against the decision of the Chief Magistrate's Court at Budaka dismissing Land Suit No. 07 of 2023 on grounds that it was res judicata with Civil Suit No. 01 of 2014 and Civil Appeal No. 13 of 2020. The trial magistrate found that both the dismissed suit and the prior proceedings concerned the same land, allegedly given to the plaintiff by her late husband Isreal Kabazi, and that both claims related to approximately 3 acres formerly owned by the late Isreal Kabazi. The appellant filed an appeal directly to the High Court without first seeking leave from the trial court.

Issues

  1. Whether an appeal lies as of right to the High Court from a ruling dismissing a suit on a preliminary point of law without first seeking leave of court.
  2. Whether the trial Chief Magistrate erred in holding that Land Suit No. 07 of 2023 was barred by res judicata.

Orders

  • Appeal struck out.
  • Costs awarded to the Respondent.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal — Orders on Preliminary Objections
An appeal does not lie as of right from an order dismissing a suit on a preliminary point of law; leave must first be sought from the court making the order under Order 44 rules 2 and 3 of the Civil Procedure Rules before filing an appeal.
Civil Procedure — Appellate Jurisdiction — Right of Appeal — Statutory Requirement
The right of appeal is a creature of statute and appellate jurisdiction must be specifically created by law. It cannot be inferred or implied. Where no right of appeal exists, a party must seek leave of court to appeal.
Civil Procedure — Leave to Appeal — Essential Step — Incompetent Appeal
Obtaining leave to appeal is not merely a procedural matter but an essential step. Where no genuine step has been taken to apply for leave, there is no competent appeal before the court.

Legislation cited (5)

Cases cited (5)

  • Akbar Hussein Godi v Uganda (Supreme Court Criminal Appeal No. 03 of 2013)
  • Dr. Sheik Ahmed Mohammed Kisuule v Greenland Bank (in liquidation) (Supreme Court Civil Appeal No. 11 of 2010)
  • Emmanuel Tumusiime v Perusi Namagembe and Anor (Civil Appeal No. 42 of 2023)
  • Baku Raphael Obudra and Anor v Attorney General (Supreme Court Constitutional Appeal No. 1 of 2005)
  • Attorney General v Shah [1971] EA 50

Full judgment

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

Kabazi v Kabazi (Civil Appeal 118 of 2023) [2024] UGHC 782 (13 August 2024)
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.