Kellia & Anor v Ovuru (Civil Appeal No. 0002 of 2015)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that a memorandum of appeal, not a notice of appeal or provisional memorandum of appeal, commences an appeal to the High Court. While the appellant requested a certified copy of proceedings within time, thereby invoking section 79(2) of the Civil Procedure Act, the appellant failed to prove when the record was availed. The court exercised discretion under section 79(1)(b) to admit the appeal for good cause, as the subject matter was land and the appellant had taken all reasonable steps save for a procedural slip.

Outcome

Preliminary objection dismissed; appeal to proceed on merits; supplementary record to be filed

Facts

The appellants appealed a judgment of the Chief Magistrates Court delivered on 5 January 2015. A notice of appeal was filed on 7 January 2015, letters requesting certified copies of proceedings were filed on 6 January and 2 February 2015, a provisional memorandum of appeal was filed on 4 February 2015, and the final memorandum of appeal was filed on 16 April 2015. The respondent raised a preliminary objection that the appeal was filed out of time, contravening the 30-day limit under section 79 of the Civil Procedure Act. The appellant argued that he had invoked section 79(2) by requesting certified copies within time, which suspends the 30-day period during the time taken to prepare the record. The certified copy of proceedings lacked a dated certification stamp.

Issues

1. Whether the appeal was filed out of time and should be struck out as incompetent.
2. Whether the appellant complied with section 79(2) of the Civil Procedure Act by requesting a certified copy of the record of proceedings.
3. Whether a provisional memorandum of appeal or notice of appeal can commence an appeal to the High Court.
4. Whether the court should exercise discretion under section 79(1)(b) to admit the appeal despite expiry of the limitation period.

Orders

• Preliminary objection overruled.
• Appeal admitted despite expiry of limitation period under section 79(1)(b) of the Civil Procedure Act.
• Costs of the preliminary objection awarded to the respondent.
• Appellant directed to file a supplementary record of appeal incorporating missing documents and serve the same on counsel for the respondent before the next hearing date.

Rules and key headnotes

Legislation cited (4)

• Civil Procedure Act s.79(1)
• Civil Procedure Act s.79(2)
• Civil Procedure Rules O.43 r.1
• Civil Procedure Rules O.43 r.10(3)

Cases cited (15)

• Board of Governors and Headmaster of Gulu Secondary School v Phinson E. Odong (Civil Appeal No. 2 of 1990)
• Alcon International Limited v Kasirye, Byaruhanga and Company Advocates [1995] III KALR 91
• Julius Rwabinuuni v Hope Bahimbisomwe [2009] HCB 23
• Godfrey Magezi and Brian Mbaziira v Sudhir Ruparlelia [2005] ULSR 82
• Mukasa Anthony Alice v Baiga Lulume (Election Petition No. 18 of 2007)
• Maria Onyango Ochola and Others v J Hannington Wasswa [1996] HCB 43
• Hajj Mohammed Nyanzi v Ali Sseggane [1992-1993] HCB 218
• Ephraim Ongom and Another v Francis Binega Donge (Civil Appeal No. 10 of 1987)
• Asadi Weke v Livingstone Oala [1985] HCB 50
• James Mutoigo t/a Juris Office v Shell (U) Ltd (Miscellaneous Civil Application No. 0068 of 2007)
• Tuwangye Kazzora v Georgina Katarikwenda [1992-93] HCB 145
• Tight Security Ltd v Chartis Uganda Insurance Company Limited and Another (Civil Appeal No. 14 of 2014)
• Mayanja Grace v Yusufu Luboyera [1977] HCB 133
• Muhutu George v Mpengere Bulasiyo [1982] HCB 55
• Westmont Land (Asia) BHD v The Attorney General [1998-2000] HCB 46

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