Kemirembe Sarah v National Housing and Construction Company Ltd (CIVIL APPEAL No 83 OF 2010)

Observed later treatment

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 held that a first appellate court cannot validly determine an appeal without the complete record of proceedings from the trial court, as affidavits alone cannot substitute for the entire record where other matters may have transpired. The High Court erred in proceeding to dispose of the first appeal without the Chief Magistrate's record, occasioning a miscarriage of justice and denying the parties a fair hearing under Article 28(1). It was wrong for counsel to certify an incomplete record as correct. The first appeal was void ab initio, and the Court could not sit in second appeal over it. The High Court judgment was set aside as null and void, and the trial Magistrate's decision reinstated.

Outcome

First appellate court judgment set aside as null and void; trial Magistrate's decision reinstated

Facts

The appellant filed a cause in the Chief Magistrate's Court at Nakawa seeking orders that the respondent re-open an access road known as 'Ruth road', which its agents had blocked during construction of a housing estate, or provide an alternative road to the appellant's residential rental property. An interim order restraining the respondent was granted and extended by consent. Despite this, the respondent resumed construction and completely sealed off access to the appellant's property. The trial Magistrate ruled in the appellant's favour, ordering re-opening of the road or provision of an alternative. The respondent appealed to the High Court, which allowed the appeal, holding that an erroneous procedure had been used to institute the cause and that there was no suit before court. Crucially, the record of proceedings from the Chief Magistrate's Court was never availed and was not part of the first appeal record, yet counsel certified the record as correct.

Issues

1. Whether a first appellate court can validly determine an appeal without the record of proceedings from the trial court.
2. Whether a second appellate court can sit in appeal over a first appeal that was void ab initio for lack of a complete record.

Orders

• Judgment of the first appellate court set aside as null and void.
• Decision of the trial Magistrate's Court dated 24th July 2009 reinstated.
• Each party to bear its own costs.

Rules and key headnotes

Legislation cited (2)

• Judicature (Court of Appeal) Rules (SI 13-10) r.2(2)
• Constitution of Uganda 1995 art.28(1)

Cases cited (8)

• Frederick J K Zaabwe v Orient Bank (Civil Appeal No. 4 of 2006)
• Ongom John Bosco v Uganda (Criminal Appeal No. 21 of 2007)
• Maniraguha Gashumba v Sam Nkundiye (Civil Appeal No. 23 of 2005)
• Pandya versus R (Supra)
• Kairu vs Uganda (797d HCB 123
• S.M Ruwole Vs R [1957] EA 570
• Kifomunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
• James Mutogo t/a Juris Office v Shell (U) Ltd (Miscellaneous Application No. 68 of 2007)

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Libya Oil (U) Ltd v Mahmoud Said Saad and Others (Civil Suit 11 of 2024)
• Kemirembe v National Housing and Construction Company Limited (Civil Application 638 of 2022)

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