Wakilii

Mwesekezi v Kajubi (Civil Application No. 261 of 2013)

Court of Appeal · [2014] UGCA 29 · 2014 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion to strike out a notice of appeal and appeal for non-compliance with the Rules of the Court of Appeal
Decision
Notice of appeal and appeal struck out for being filed out of time; related applications also struck out

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that although the notice of appeal was filed within time (giving the appellant the benefit of the doubt on a date discrepancy), and that serving the notice on the Registrar of the Court of Appeal was the duty of the High Court Registrar under Rule 77 rather than the respondent, the appeal itself was fatally defective. It was filed over 12 months out of time, and the appellant could not benefit from the exclusion of time for preparation of proceedings under Rule 83(2) because the letter requesting proceedings was never served. The court declined to extend time on its own motion absent any application. No appeal lay; both the notice of appeal and appeal were struck out.

Outcome

Notice of appeal and appeal struck out for being filed out of time; related applications also struck out

Facts

The judgment appealed from was delivered on 7 September 2011. The respondent filed a notice of appeal at the High Court on 21 September 2011, though the Registrar endorsed it on 28 September 2011. The applicant contended the respondent failed to serve the notice of appeal on the applicant and on the Registrar of the Court of Appeal, and failed to serve the letter requesting proceedings, so the appeal should have been filed within 60 days. The applicant argued the record of appeal lacked the High Court Registrar's certificate of correctness. The respondent conceded there was no proof of service of the notice of appeal, that the appeal was filed out of time, and that the letter requesting proceedings was not served. The proceedings were ready by 20 January 2012 and collected by the respondent's advocates on 14 March 2012, yet no appeal was filed until 17 December 2012. The respondent asked the court to validate the notice and appeal under Rule 2(2).

Issues

  1. Whether the notice of appeal was filed within the time prescribed by the Rules of the Court.
  2. Whether the respondent was under a duty to serve a copy of the notice of appeal on the Registrar of the Court of Appeal.
  3. Whether an appeal filed out of time and where the letter requesting proceedings was not served should be struck out.
  4. Whether the court could extend time on its own motion under Rule 2(2) absent an application for extension.

Orders

  • Application allowed.
  • The notice of appeal and the appeal are struck out with costs to the applicant.
  • Civil Application No. 300 of 2013 (stay of execution) and Civil Application No. 332 (amendment of Application No. 300 of 2013) are also struck out with no order as to costs.

Rules and key headnotes

Civil Procedure — Appeals — Time for filing — Effect of failure to serve letter requesting proceedings under Rule 83(2)
An appellant cannot rely on the exclusion of time for preparation of proceedings under Rule 83(2) of the Rules of the Court of Appeal where the letter requesting the proceedings was not served on the opposite party; an appeal filed after the ordinary time thus runs out of time.
Civil Procedure — Appeals — Service of notice of appeal on the Registrar — Duty under Rule 77
Under Rule 77 of the Rules of the Court of Appeal, it is the duty of the Registrar of the High Court, upon receipt of the notice of appeal, to send a copy to the Registrar of the Court of Appeal; this is not a duty imposed on the respondent, though it is good practice for an intending appellant's counsel to do so.
Civil Procedure — Appeals — Rules of court not mere technicalities — Article 126(2)(e)
The rules relating to the institution of appeals in the Court of Appeal are not mere technicalities that can be dispensed with under Article 126(2)(e) of the Constitution; they go to the root of substantive justice and fair trial.
Civil Procedure — Extension of time — No extension on court's own motion under Rule 2(2) absent application
The court will not extend time for filing an appeal on its own motion under Rule 2(2) where no application for extension of time has been made by the party in default.
Civil Procedure — Notice of appeal — Discrepancy between date of lodging and date of endorsement
Where there is a disparity between the date a notice of appeal is lodged (shown by the registry stamp) and the date it is endorsed by the Registrar, the appellant should be given the benefit of the doubt in the absence of contrary evidence.

Legislation cited (9)

  • Rules of the Court of Appeal r.2(2)
  • Rules of the Court of Appeal r.43(1) and (2)
  • Rules of the Court of Appeal r.44
  • Rules of the Court of Appeal r.72(2)
  • Rules of the Court of Appeal r.77
  • Rules of the Court of Appeal r.78
  • Rules of the Court of Appeal r.82
  • Rules of the Court of Appeal r.83(2)
  • Constitution of Uganda 1995 Article 126(2)(e)

Cases cited (2)

  • Godfrey Magezi and Brian Mbaziira v Sudhir Rupareria (Supreme Court Civil Application No. 10 of 2002)
  • Gaba Beach Hotel Ltd v Cairo International Bank (Civil Application No. 34 of 2003)

Full judgment

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

Mwesekezi v Kajubi (Civil Application No. 261 of 2013) [2014] UGCA 29 (5 February 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.