Wakilii

Kiwanuka v Semakadde and 3 Others (Civil Miscellaneous Application No. 179 of 2020)

High Court · [2021] UGHCLD 92 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal and for leave to appeal against ruling dismissing application to set aside exparte judgment
Decision
Application struck out with costs against counsel personally

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for stay of execution and leave to appeal struck out as fatally defective. The applicant, established as illiterate in prior applications, failed to comply with section 3 of the Illiterates Protection Act by not attaching a certificate of translation to the supporting affidavit. No memorandum or notice of appeal was filed against the judgment in the underlying suit. The non-compliance with statutory requirements rendered the application incompetent. Costs awarded against counsel personally.

Outcome

Application struck out with costs against counsel personally

Facts

The respondents obtained an exparte judgment against the applicant in HCCS No. 422 of 2018 for trespass on land comprised in Kyadondo Block 79 Plot 29. The applicant filed HCMA No. 619 of 2019 seeking to set aside the exparte judgment, which was declined on 23 January 2020. The applicant then filed the present application seeking stay of execution of the judgment pending appeal and leave to appeal against the ruling in HCMA No. 619 of 2019. The respondents objected, raising that there was no evidence of a filed appeal and that the supporting affidavit violated section 3 of the Illiterates Protection Act. In prior applications filed on 24 February 2019 and 7 October 2019, the applicant's affidavits had been accompanied by certificates of translation by one Hasfa Namulindwa, establishing his illiteracy. The present application filed on 11 February 2020 bore no such certificate. The applicant filed no rejoinder to address these objections.

Issues

  1. Whether the applicant's supporting affidavit complied with the requirements of section 3 of the Illiterates Protection Act.
  2. Whether the applicant had filed a valid notice or memorandum of appeal to justify the stay of execution sought.
  3. Whether the application disclosed sufficient grounds to merit the orders sought.

Orders

  • Application struck out as fatally defective and incompetent.
  • Costs awarded against counsel in personal conduct of the application.

Rules and key headnotes

Civil Procedure — Affidavits — Illiterates Protection Act — Compliance with Section 3 — Certificate of Translation
Where a person has been established as illiterate through prior affidavits accompanied by certificates of translation, subsequent affidavits by that person must comply with section 3 of the Illiterates Protection Act by bearing a certificate of translation; failure to do so renders the affidavit and application fatally defective and inadmissible.
Civil Procedure — Illiterates Protection Act — Nature of Requirements — Not Merely Procedural
The requirements of section 3 of the Illiterates Protection Act are legal requirements intended to protect illiterate persons from manipulation, not merely procedural formalities, and non-compliance cannot be cured by article 126(2)(e) of the Constitution.
Civil Procedure — Stay of Execution — Prerequisites — Notice or Memorandum of Appeal
A court cannot grant a stay of execution under Order 43 of the Civil Procedure Rules where no memorandum of appeal or notice of appeal has been filed against the judgment in respect of which the stay is sought.

Legislation cited (9)

Cases cited (2)

  • Tikens Francis and Anor vs the Electoral Commission and 2 others
  • Kasaala Growers Cooperative Society versus Kakooza and another

Full judgment

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

Kiwanuka_v_Semakadde_and_3_Others_(Civil_Miscellaneous_Application_No._179_of_2020)_[2021]_UGHCLD_92_(6_May_2021)
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.