Wakilii

Muyimbwa v Fr. Ssemujju (Civil Appeal 9 of 2023)

High Court · [2024] UGHC 698 · 2024 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court ruling dismissing Miscellaneous Cause No. 022 of 2022 on preliminary objections
Decision
Appeal dismissed on preliminary objection for failure to seek leave of court before filing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal on preliminary objections. The court held that although the memorandum of appeal was filed within the statutory thirty-day period prescribed by Section 79 of the Civil Procedure Act when accounting for delay in obtaining certified proceedings, the appeal was incompetent for failure to seek leave of court. The orders appealed against did not fall within those appealable as of right under Order 44 Rule 1 of the Civil Procedure Rules, and the appellant was therefore required to obtain leave before filing the appeal.

Outcome

Appeal dismissed on preliminary objection for failure to seek leave of court before filing

Facts

The appellant instituted Miscellaneous Cause No. 022 of 2022 in the Chief Magistrate's Court of Mpigi. The respondent raised preliminary objections regarding the competence of the application, arguing the law cited was criminal in nature while the matter was civil. The trial Magistrate sustained the preliminary objections and dismissed the application with costs. The appellant filed a notice of appeal on 24 February 2023, requested certified proceedings on 1 February 2023, received them on 18 July 2023, and filed the memorandum of appeal on 20 July 2023. At the hearing of the appeal before the High Court, the respondent raised two preliminary objections: that the appeal was filed out of time, and that the appellant had no automatic right of appeal and should have sought leave of court first.

Issues

  1. Whether the appeal was filed out of time contrary to Section 79 of the Civil Procedure Act.
  2. Whether the appellant was required to seek leave of court before lodging the appeal under Order 44 Rules 1 and 2 of the Civil Procedure Rules.

Orders

  • The first preliminary objection regarding filing out of time is overruled.
  • The second preliminary objection regarding failure to seek leave to appeal is upheld.
  • The appeal is dismissed for failure to seek leave of court as provided for under Order 44 Rules 1, 2, 3 and 4 of the Civil Procedure Rules.
  • No order as to costs.

Rules and key headnotes

Appeals — Time Limits — Computation of Limitation Period — Exclusion of Time Taken to Obtain Certified Proceedings
Under Section 79 of the Civil Procedure Act, an appeal must be entered within thirty days of the date of the decree or order appealed against. In computing this limitation period, the time taken by the court in making a copy of the decree or order and the proceedings upon which it is founded is excluded. Where an appellant promptly applies for certified proceedings and delay occurs through no fault of their own, the appeal is filed in time if the memorandum is lodged within the statutory period calculated from receipt of the certified copy.
Appeals — Commencement of Appeal — Memorandum of Appeal vs Notice of Appeal
A notice of appeal does not commence an appeal in the High Court from the judgment of a Magistrate's Court. An appeal is commenced by a memorandum of appeal lodged in the High Court. The thirty-day limitation period under Section 79 of the Civil Procedure Act applies to the filing of the memorandum of appeal, not merely the notice of appeal.
Appeals — Leave to Appeal — Orders Not Appealable as of Right
The right to appeal is a creature of statute. Where an order appealed against does not fall within the categories listed in Order 44 Rule 1 of the Civil Procedure Rules as appealable as of right, a party must first seek leave of the court that made the order before lodging an appeal. An appeal filed without obtaining the required leave is incompetent and liable to be dismissed.
Appeals — Leave to Appeal — Rationale for Leave Requirement
The requirement to seek leave before appealing in certain cases is premised on the need to check unnecessary and frivolous appeals. It is also based on the general rule that appeals should arise from final decrees and orders of courts and not interlocutory orders.

Legislation cited (2)

Cases cited (10)

  • Geoffrey Nangumya t/a Namgumya & Co. Advocates v Security Plus (U) Limited (Miscellaneous Application No. 858 of 2021)
  • Maria Onyango Ochola and Others v J. Hannington Wasswa [1996] HCB 43
  • Loi Kageni Kiryapawo v. Gole Nicholas Davis, 8. C. Miscellaneous Civil Application No.15 of 2007
  • Hajj Mohammed Nyanzi v Ali Sseggane [1992-1993] HCB 218
  • Tight Security Ltd v Chartis Uganda Insurance Co Ltd (High Court Miscellaneous Application No. 8 of 2014)
  • Shah v Attorney General [1971] EA 50
  • Joseph Bamwebehire and Another v Nareeba Dan and 7 Others (Miscellaneous Application No. 107 of 2020)
  • Lane v Esdaile [1891] AC 210
  • Ex parte Stevenson [1892] 1 QB 609
  • Incatex (U) Ltd v Kabatereine [1999] KALR 645

Full judgment

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Muyimbwa v Fr. Ssemujju (Civil Appeal 9 of 2023) [2024] UGHC 698 (20 June 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.