Kabinenda v Mugisha & 17 Ors (Civil Application Number 0172 of 2010)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The Court of Appeal struck out the respondents' notice of appeal for dilatory conduct. Although the notice was originally lodged 83 days after judgment (contrary to the 14-day rule), that defect was cured by a consent extension of time granting 15 days to file the record of appeal. The respondents failed to file within that period and took no further step for over five years, nor did they or their lawyer appear to explain the delay. Applying the principle that an intending appellant must actively prosecute the appeal, the Court held that failure to take an essential step within the prescribed time renders the appeal incompetent, and struck out the notice with costs.
Outcome
Notice of appeal struck out with costs; intended appeal terminated
Facts
The respondents sued the applicant in Mbarara High Court Civil Suit No. 20 of 1984 to recover registered land (Rwampara Block 3, Plot 91), seeking a declaration of ownership, cancellation of title, general damages and costs. Judgment was delivered against the respondents on 8 October 2003. Dissatisfied, they lodged a notice of appeal on 31 December 2003, some 83 days later, without seeking leave or extension for service. The respondents later obtained an extension of time by consent in Civil Application No. 66 of 2005, disposed of on 28 May 2010, allowing them 15 days to file the record of appeal. The record was due by 14 June 2010 but was never filed, and no further step was taken. The applicant subsequently died and his executors were substituted. At the hearing neither the respondents nor their counsel appeared to explain the delay.
Issues
- Whether the respondents' notice of appeal should be struck out for failure to take an essential step in the prosecution of the appeal within the prescribed time.
- Whether service of the notice of motion on counsel who had endorsed it but claimed to have no instructions amounted to effective service.
Orders
- Application allowed.
- Notice of Appeal filed by the respondents on 31 December 2003 struck out.
- Costs of the application awarded to the applicant.
- The applicant's executors added as parties/legal representatives of the applicant's estate.
Rules and key headnotes
Legislation cited (9)
- Court of Appeal Rules r.82
- Court of Appeal Rules r.82(2)
- Court of Appeal Rules r.43(1)
- Court of Appeal Rules r.44(1)
- Court of Appeal Rules r.50(3)
- Court of Appeal Rules r.76(2)
- Court of Appeal Rules r.97
- Court of Appeal Rules r.2
- Constitution of the Republic of Uganda Article 126(2)(e)
Cases cited (3)
- Gaba Beach Hotel Ltd v Cairo International Bank Ltd (Civil Appeal No. 34 of 2003)
- Dr. S.B. Kinyatta & Anor v Subramanian Gopalan & Anor (Civil Appeal No. 108 of 2003)
- Utex Industries Ltd v Attorney General (Civil Appeal No. 52 of 1995)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.