Wakilii

Kunya v Bwote & Anor (Civil Appeal No. 19 2013 & 102 2013)

High Court · [2015] UGHCCD 164 · 2015 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside striking out of appeal and for stay of execution pending determination of appeal
Decision
Application dismissed for being incompetent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that appeals to the High Court must be commenced by filing a memorandum of appeal, not a notice of appeal. Filing a notice of appeal does not constitute a valid appeal. A memorandum of appeal filed six months later, out of time and without leave, cannot cure the defect. The application to set aside the striking out was dismissed as incompetent, as was the application for stay of execution, since no competent appeal existed.

Outcome

Application dismissed for being incompetent

Facts

The applicant filed a notice of appeal (Civil Appeal No. 19/2013) on 23 April 2013. Six months later, in October 2013, a memorandum of appeal was filed and assigned a separate number (102/2013). Civil Appeal No. 19/2013 was struck out on 12 December 2013 for being incompetent. The applicant then applied to set aside the striking out, arguing that the memorandum of appeal should have been filed under Civil Appeal No. 19/2013 and that both should be treated as one appeal. The applicant also sought a stay of execution of the decree from the lower court pending determination of the appeal.

Issues

  1. Whether Civil Appeal No. 19/2013 could be set aside after being struck out for incompetence.
  2. Whether a memorandum of appeal filed six months after a notice of appeal could cure the defect of the earlier appeal.
  3. Whether execution of the decree could be stayed in the absence of a competent appeal.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Appeals to High Court — Commencement — Requirement of Memorandum of Appeal
Under Order 43(1) of the Civil Procedure Rules, appeals to the High Court are commenced by filing a memorandum of appeal, not a notice of appeal. Filing a notice of appeal does not constitute a valid appeal.
Civil Procedure — Appeals — Time Limits — Memorandum Filed Out of Time
A memorandum of appeal filed six months after a notice of appeal, without leave of court and clearly out of time, cannot cure the defect of an earlier incompetent appeal or be treated as part of the earlier appeal.
Civil Procedure — Stay of Execution — Prerequisite of Competent Appeal
An order for stay of execution under Order 43 rule 4(1) of the Civil Procedure Rules presupposes the existence of a competent appeal. Where no competent appeal exists, the court cannot grant a stay of execution.

Legislation cited (4)

Cases cited (1)

  • Rose Nabirye v Rosa Muwangala (Misc. Application No. 50 of 1989)

Full judgment

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

Kunya Vs Bwote & Anor (Civil Appeal No. 19_2013 & 102_2013) [2015] UGHCCD 164 (19 February 2015)
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.