Wakilii

Kabunga v Leonia Karyeija and Others (Miscellaneous Civil Application No. 54 98)

Court of Appeal · [1999] UGCA 80 · 1999 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out a notice of appeal filed out of time
Decision
Application dismissed but applicant awarded costs of the application

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The applicant sought to strike out the respondents' notice of appeal for being filed out of time. Before the application was heard, a single judge granted the respondents an extension of time to file the notice, rendering the striking-out application superfluous. The applicant's counsel declined to withdraw the application but sought costs. The court held that the application had been properly filed with justification and had become necessary only because of the omissions of the respondents' counsel. The applicant was therefore entitled to costs of the application even though it was now overtaken by events. The court dismissed the application but awarded the applicant its costs.

Outcome

Application dismissed but applicant awarded costs of the application

Facts

The applicant obtained judgment against the respondents on 5 June 1998 in High Court Suit No. 972 of 1995. The respondents filed a notice of appeal on 25 June 1998, twenty days after the judgment, whereas the Court of Appeal rules required filing within 14 days. On 6 November 1998 the applicant applied under Rule 81 to strike out the notice of appeal as filed out of time and for non-compliance with Rule 82. On 8 December 1998 the respondents applied to extend time to file the notice of appeal, blaming their advocate's misconstruction of the law. Relying on Haji Nurdin Matovu v Ben Kiwanuka, the extension application was heard first and was granted by a single judge, rendering the striking-out application superfluous save for costs. The applicant's counsel declined to withdraw the application, seeking costs.

Issues

  1. Whether the applicant was entitled to costs of an application to strike out a notice of appeal that had been overtaken by the grant of an extension of time to appeal.
  2. How the court should dispose of an application that had become superfluous but had not been withdrawn.

Orders

  • Application dismissed as overtaken by events.
  • Applicant awarded the costs of the application.

Rules and key headnotes

Costs — Application Overtaken by Events — Entitlement Where Properly Filed
Where an application was properly filed with justification but has become superfluous through subsequent events, the applicant remains entitled to the costs of the application, even upon withdrawal, particularly where the need for the application arose from the opposing party's omissions.
Notice of Appeal — Application to Strike Out — Precedence of Pending Application to Extend Time
Where an application to extend time to file a notice of appeal is pending, the court will not normally strike out the notice of appeal but will allow the extension application to be heard first.
Superfluous Applications — Proper Course of Withdrawal
The proper course for a party whose application has been overtaken by events is to withdraw the application while asking the court to award costs; failure to withdraw does not deprive the party of costs where the application was justified.

Legislation cited (2)

  • Rules of the Court of Appeal r.81
  • Rules of the Court of Appeal r.82

Cases cited (2)

  • Haji Nurdin Matovu v Ben Kiwanuka (Civil Application No. 12 of 1991)
  • Mustaq Abdulla Bhegani v Obol Ochola (Civil Application No. 4 of 1987)

Full judgment

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

Kabunga v Leonia Karyeija and Others (Miscellaneous Civil Application No. 54 98) [1999] UGCA 80 (30 September 1999)
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.