Wakilii

Kithende v Eleonora and 3 Others (Miscellaneous Application No. 110 of 2022)

High Court · [2023] UGHCCD 43 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal order dismissing underlying civil suit
Decision
Application dismissed with costs to the respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where a plaint is rejected under Order 7 rule 11 of the Civil Procedure Rules for non-disclosure of a cause of action, the plaintiff has an automatic right of appeal by virtue of Order 6 rule 30(2), which provides that all orders striking out pleadings on that ground are appealable as of right. Leave to appeal is therefore not required. Application for leave dismissed as incompetent and frivolous.

Outcome

Application dismissed with costs to the respondents

Facts

The applicant had filed Civil Suit No. 12 of 2020 which was dismissed on 14 September 2022 following Miscellaneous Application No. 44 of 2020 where the plaint was rejected for non-disclosure of a cause of action. The applicant filed a notice of appeal and requested the record of proceedings. He then brought this application under Order 44 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act seeking leave to appeal the dismissal order. The respondents opposed the application, arguing that the appeal lay as of right under Order 6 rule 30(2) and that no leave was required.

Issues

  1. Whether the application for leave to appeal was proper before the High Court
  2. Whether the applicant had an automatic right of appeal under Order 6 rule 30(2) of the Civil Procedure Rules
  3. Whether leave to appeal was required for an order dismissing a suit for non-disclosure of a cause of action

Orders

  • Application dismissed as incompetent and frivolous.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Appeals — Right of Appeal — Orders Dismissing Suit for Non-Disclosure of Cause of Action
Where a plaint is rejected under Order 7 rule 11 of the Civil Procedure Rules for non-disclosure of a cause of action, the plaintiff has an automatic right of appeal by virtue of Order 6 rule 30(2) of the Civil Procedure Rules, which provides that all orders striking out pleadings on the ground that they disclose no reasonable cause of action are appealable as of right.
Civil Procedure — Pleadings — Interpretation of Order 6 and Order 7 — Reading Rules Together
Order 6 and Order 7 of the Civil Procedure Rules both concern pleadings and should be read together to give effect to the intention of the legislator. The effect of rejecting a plaint under Order 7 rule 11 constitutes striking out a pleading as provided for under Order 6 rule 30(1), thereby triggering the automatic right of appeal under Order 6 rule 30(2).
Civil Procedure — Appeals — Leave to Appeal — When Leave Not Required
Section 76 of the Civil Procedure Act provides that where a law expressly provides for a right to appeal, leave to appeal is not required. Since Order 6 rule 30(2) expressly provides for an automatic right to appeal from orders striking out pleadings for non-disclosure of a cause of action, an application for leave to appeal such an order is incompetent.
Civil Procedure — Appeals — Rationale for Automatic Right of Appeal — Orders with Consequential Effect
Orders made under Order 6 rule 30(1) are appealable as of right because they determine the case and have a consequential effect on the rights of the parties. They are decrees of a sort since they determine the suit, and an aggrieved party must have an automatic right to appeal.

Legislation cited (7)

Cases cited (1)

  • Sango Bay Estates Limited & others v Dresdner Bank (1971) E.A 17

Full judgment

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

Kithende v Eleonora and 3 Others (Miscellaneous Application No. 110 of 2022) [2023] UGHCCD 43 (27 February 2023)
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.