Wakilii

Matsiko v Banyankole Kweterana Company Uganda Limited (Civil Miscellaneous Application 43 of 1998)

Court of Appeal · [1999] UGCA 33 · 1999 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out a notice of appeal for failure to institute the appeal within time
Decision
Notice of appeal struck out; application granted with costs to the applicant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that Rule 82(3) of the Rules of the Court of Appeal is mandatory: an appellant seeking to exclude time for preparation of proceedings must serve the respondent with a written request for a copy of the proceedings and retain proof of that service. This requirement is not a mere technicality curable under Article 126(2)(e) of the Constitution. Where service was disputed, the respondent bore the onus of proving service and, being unable to produce proof, failed to discharge it. As the memorandum and record of appeal were not filed within sixty days and the respondent could not rely on the excluded-time provision, the appeal was not filed in time. The application to strike out the notice of appeal was allowed with costs.

Outcome

Notice of appeal struck out; application granted with costs to the applicant

Facts

The High Court delivered judgment on 9 March 1998. The appellant/respondent filed a notice of appeal and a letter requesting a copy of the proceedings in the High Court on 11 March 1998. The respondent's law clerk deposed that both documents were served on Mr. Kakuru, counsel for the applicant, on 15 March 1998, and that Mr. Kakuru read, signed and stamped the notice of appeal. Mr. Kakuru admitted receiving the notice of appeal but denied ever receiving the letter requesting a copy of the proceedings. No acknowledgement of service of the request letter was produced. The memorandum of appeal and record of appeal were not filed within sixty days of the notice of appeal. The applicant applied to strike out the notice of appeal on the grounds that no appeal lay, that important steps had not been taken, and that time to file the appeal had elapsed.

Issues

  1. Whether the respondent complied with Rule 82(2) and (3) of the Rules of the Court of Appeal by serving the applicant with a written request for the proceedings and retaining proof of service.
  2. Whether the failure to sign an acknowledgement of service was a mere technicality curable under Article 126(2)(e) of the Constitution.

Orders

  • Application allowed.
  • Notice of appeal struck out.
  • Costs of the application awarded to the applicant.

Rules and key headnotes

Appeals — Court of Appeal Rules — Rule 82(3) — Mandatory Requirement to Serve Request for Proceedings and Retain Proof
Under Rule 82(3) of the Rules of the Court of Appeal an appellant cannot rely on the exclusion of time in Rule 82(2) unless the application for a copy of the proceedings was in writing, a copy was served on the respondent, and the appellant has retained proof of that service; these requirements are mandatory.
Appeals — Burden of Proof of Service — Onus on Appellant Where Service Disputed
Where service of a written request for proceedings is disputed, the burden rests on the appellant to prove service and to produce the proof of service the law requires to be retained; failure to do so means the appellant cannot rely on the excluded time under Rule 82(2).
Article 126(2)(e) — Technicalities — Non-compliance with Mandatory Rules of Procedure Not a Mere Technicality
Article 126(2)(e) of the Constitution does not wipe out the rules of procedure; failure to comply with the mandatory service requirements of Rule 82(3) is not a mere technicality that can be excused under the article, and unexplained delay in filing an appeal within time cannot be cured on that basis.

Legislation cited (7)

Cases cited (2)

  • Utex Industries Ltd v Attorney General (Supreme Court Civil Application No. 52 of 1995)
  • the Mabosi case

Full judgment

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

Matsiko v Banyankole Kweterana Company Uganda Limited (Civil Miscellaneous Application 43 of 1998) [1999] UGCA 33 (15 January 1999)
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.