Wakilii

Mwasa v Musoke & 2 Ors (Civil Appeal No. 54 of 2011)

High Court · [2014] UGHCCD 63 · 2014 Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court preliminary objection ruling striking out part of plaint for non-disclosure of cause of action
Decision
Appeal struck out as incompetent for failure to obtain leave before filing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An order made on a preliminary objection that strikes out part of a plaint for non-disclosure of cause of action is not a decree but an order that does not fall within the categories of orders appealable as of right under Order 44 r.1 CPR. Leave to appeal must first be obtained under Order 44 r.2 before filing such an appeal. Where leave is not obtained, the appeal is incompetent and the appellate court has no jurisdiction to hear it.

Outcome

Appeal struck out as incompetent for failure to obtain leave before filing

Facts

The appellant filed a suit in the Chief Magistrate's Court at Mukono. During hearing, counsel for the defendants raised a preliminary objection that the plaint did not disclose a cause of action against the 1st and 3rd defendants. The trial magistrate upheld the objection and made an order striking out the plaint against those defendants, with costs. The appellant filed an appeal to the High Court without first seeking leave to appeal. The respondents raised a preliminary point that leave was required under Order 44 r.2 CPR before filing the appeal.

Issues

  1. Whether leave to appeal was required under Order 44 r.2 CPR before filing an appeal from an order made on a preliminary objection.
  2. Whether an order striking out part of a plaint on a preliminary objection constitutes a decree appealable as of right or an order requiring leave to appeal.

Orders

  • Appeal struck out.
  • Costs awarded to the 1st and 3rd Respondents.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal — Orders Made on Preliminary Objections
An order made on a preliminary objection that strikes out part of a plaint does not determine the rights of the parties or deal with the merits of the case and therefore does not constitute a decree but rather an order.
Civil Procedure — Appeals — Leave to Appeal — Orders Not Falling Under Order 44 r.1 CPR
Where an order sought to be appealed from does not fall within the categories of orders appealable as of right under Order 44 r.1 CPR, leave to appeal must first be obtained under Order 44 r.2 from either the court that made the order or the court to which the appeal would lie.
Civil Procedure — Appeals — Competence of Appeal — Failure to Obtain Leave
Where leave to appeal is required but not obtained before an appeal is filed, the appeal is incompetent and premature, and the appellate court has no jurisdiction to hear it.

Legislation cited (4)

Cases cited (1)

  • Bilimoria & Another v T.D. Bilimoria (1962) EA 198

Full judgment

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

Mwasa v Musoke & 2 Ors (Civil Appeal No. 54 of 2011) [2014] UGHCCD 63 (30 April 2014)
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.