Wakilii

Mugwiri and Another v Kyanamira (HC Miscellaneous Application 177 of 2022)

High Court · [2023] UGHCLD 149 · 2023 Application Dismissed; Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out memorandum of appeal arising from civil appeal from Chief Magistrate's Court judgment
Decision
Memorandum of appeal struck out for non-service; application dismissed for lack of locus standi but court exercised inherent powers to strike out appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court struck out the memorandum of appeal for non-service within 21 days as required by Order 5 rule 1(2) of the Civil Procedure Rules. The court found that the applicant lacked locus standi to bring the application because the power of attorney was restrictive and limited to specific civil suits, not to instituting this application. However, exercising inherent powers under section 98 of the Civil Procedure Act, the court struck out the appeal on its own motion for failure to comply with service requirements.

Outcome

Memorandum of appeal struck out for non-service; application dismissed for lack of locus standi but court exercised inherent powers to strike out appeal

Facts

The applicants obtained judgment in their favour from the Chief Magistrate's Court of Mityana in Civil Suit No. 041 of 2020 concerning trespass on land. When the applicants commenced execution proceedings on 1 July 2022, counsel for the respondent appeared and informed the court that the respondent had filed an appeal in the High Court and intended to file an application for stay of execution. The respondent showed the trial magistrate a letter requesting the record of proceedings. The applicants then filed this application to strike out the memorandum of appeal, alleging that the respondent failed to serve the notice of appeal and memorandum of appeal within 21 days from the date of commencement of the appeal. The application was brought by Namutete Henry Mugwanya, a donee of powers of attorney from the applicants.

Issues

  1. Whether the affidavit in reply was defective for non-payment of stamp duty.
  2. Whether paragraphs of the affidavit in reply were argumentative and should be expunged.
  3. Whether the respondent's denial of service was evasive.
  4. Whether the applicant had locus standi to bring the application given the restrictive scope of the power of attorney.
  5. Whether the memorandum of appeal should be struck out for non-service within the prescribed time.

Orders

  • The memorandum of appeal in Civil Appeal No. 15 of 2022 is struck off the court record.
  • Each party shall bear costs of this application.

Rules and key headnotes

Civil Procedure — Powers of Attorney — Scope and Construction — Restrictive Powers
A power of attorney must be construed strictly within the four corners of the instrument. Where a power of attorney is restrictive and limited to specific civil suits, the donee does not have authority to institute applications arising from appeals of those suits unless such power is expressly granted or arises as an incidental power necessary to fulfil the obligations created.
Civil Procedure — Service of Process — Memorandum of Appeal — Time Limits
An appeal is a suit as defined in section 2(k) of the Civil Procedure Act, and service of the memorandum and notice of appeal must be effected in the manner provided for service of summons. The memorandum of appeal must be served within 21 days as provided under Order 5 rule 1(2) of the Civil Procedure Rules. Failure to serve within the prescribed time renders the appeal incompetent.
Civil Procedure — Affidavits — Statements of Belief — Admissibility
Under Order 19 rule 3(1) of the Civil Procedure Rules, affidavits shall be confined to facts the deponent can prove of his or her own knowledge, except on interlocutory applications where statements of belief may be admitted provided the grounds thereof are stated. Where an affidavit contains averments that are offensive and others that are not, the offensive averments may be expunged and the remaining averments relied upon if capable of sustaining the party's claim.
Civil Procedure — Inherent Powers of Court — Section 98 Civil Procedure Act
The court has inherent powers under section 98 of the Civil Procedure Act to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. Where a memorandum of appeal has not been served in compliance with the rules, the court may exercise its inherent powers to strike out the appeal even where the applicant lacks locus standi to bring the application.
Civil Procedure — Burden of Proof — Service of Process
The burden of proof in civil matters is on the party who alleges, and it must be discharged on the balance of probabilities. Where service of a memorandum of appeal is denied, the party alleging service has the evidential burden to produce evidence, typically by way of an affidavit of service, to prove that service was effected.

Legislation cited (22)

Cases cited (11)

  • Besigye v Electoral Commission and Another (Presidential Petition No. 1 of 2001)
  • Gold Trust Bank (U) Ltd v Josephine Zalwango Nsubuga (HCCS No. 226 of 1992)
  • Midland Bank Ltd v Reckitt [1933] AC 1
  • Bryant, Powis, and Bryant Ltd v La Banque du People [1893] AC 170
  • Frederick Zaabwe v Orient Bank Ltd and Others (SCCA No. 4 of 2006)
  • Executrix of the Estate of Sam Nsibambi (Deceased) (HCCS No. 2226 of 1992)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Orient Bank Ltd v Avi Enterprises Ltd (HCCA No. 002 of 2013)
  • Olanya James v Ociti Tom and 3 Others (HCCA No. 0064 of 2017)
  • Kyotera Victoria Fishnets Ltd v Commissioner General, Uganda Revenue Authority (Civil Suit No. 20 of 2014)
  • Katsigazi Benson v Lorna Musanyusa Kamau (Miscellaneous Application No. 021 of 2021)

Full judgment

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

Mugwiri_and_Another_v_Kyanamira_(HC_Miscellaneous_Application_177_of_2022)_[2023]_UGHCLD_149_(21_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.