Wakilii

Musolho v Baryanga (Miscellaneous Application 13 of 2024)

High Court · [2024] UGHC 519 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to dismiss/strike out appeal for failure to serve memorandum of appeal within prescribed time
Decision
Application dismissed; appellant directed to extract and serve hearing notice with memorandum of appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that there is no specific legal provision requiring service of a Memorandum of Appeal on the respondent. Order 49 Rule 2 of the Civil Procedure Rules does not apply to a Memorandum of Appeal because the rule applies only to orders, notices and documents that the Act specifically requires to be served. The only service requirement for appeals is service of the Hearing Notice under Order 43 Rule 11, and failure to serve the Hearing Notice can warrant dismissal. Since no Hearing Notice had been extracted and the law does not mandate service of the Memorandum of Appeal itself, the application to dismiss the appeal failed.

Outcome

Application dismissed; appellant directed to extract and serve hearing notice with memorandum of appeal

Facts

The Applicant obtained judgment against the Respondent in Chief Magistrate Civil Suit No. 169 of 2021 at Kasese on 7 September 2023. The Respondent filed High Court Civil Appeal No. 31 of 2023 at Fort Portal, with the Memorandum of Appeal sealed and endorsed on 17 October 2023. The Respondent did not serve the Memorandum of Appeal on the Applicant within 21 days as contended to be required by law. The Applicant applied to dismiss the appeal for failure to serve the memorandum within the prescribed time. The Respondent explained that he had instructed his advocates to file the appeal pending receipt of the lower court record, which had been delayed. The lower court record and judgment were certified on 2 November 2023, but no Hearing Notice had been extracted.

Issues

  1. Whether the failure to serve the Memorandum of Appeal in Fort Portal High Court Civil Appeal No. 31 of 2023 on the Applicant rendered the appeal liable for dismissal.

Orders

  • Application dismissed.
  • Respondent/Appellant directed to extract Hearing Notice for the appeal and serve it upon Applicant/Respondent along with Memorandum of Appeal.
  • Each party to bear its own costs.

Rules and key headnotes

Civil Procedure — Appeals — Service of Memorandum of Appeal — Whether mandatory
There is no specific legal provision in the Civil Procedure Rules requiring service of a Memorandum of Appeal on a respondent. Order 49 Rule 2, which provides for service in the manner of summons, applies only to orders, notices and documents that the Civil Procedure Act specifically requires to be served. The Memorandum of Appeal is not such a document.
Civil Procedure — Appeals — Grounds for dismissal — Service of Hearing Notice
Under Order 43 Rule 11 of the Civil Procedure Rules, it is failure to serve the Hearing Notice that can warrant dismissal of an appeal, not failure to serve the Memorandum of Appeal. The rule creates a clear requirement to serve the Hearing Notice on the respondent and links service to the requirements for service of summons under Order 5.
Civil Procedure — Appeals — Diligence of appellant — Duty to extract and serve hearing notice
Although there is no specific legal provision requiring service of the Memorandum of Appeal, an appellant must diligently follow up on the progress of the appeal. Once the lower court record and judgment are available, a prudent appellant must extract a Hearing Notice and serve it upon the respondent along with the Memorandum of Appeal in the interests of the right to a fair trial.

Legislation cited (8)

Cases cited (5)

  • Lubega Robert Smith & 2 Others v Walonze Malaki (High Court Civil Application No. 36 of 2016)
  • Peace Barigye v Rosemary Kiiza Omamteker (HCMA No. 2075 of 2022)
  • Sam Akankwasa v United Bank of Africa (HCMA No. 1233 of 2017)
  • Yudaya International Ltd v AG (HCMA No. 0827 of 2006)
  • Sekabira Herbert v Suuna Mulema and Another (HCMA No. 186 of 2022)

Full judgment

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

Musolho v Baryanga (Miscellaneous Application 13 of 2024) [2024] UGHC 519 (3 May 2024)
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.