Wakilii

National Housing & Construction Company Limited v Kyomukama (Civil Application No. 133 of 2009)

Court of Appeal · [2011] UGCA 18 · 2011 Application Granted — Notice of Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out a pending civil appeal for incompetence
Decision
Notice of Appeal in Civil Appeal No. 82 of 2007 struck out with costs

Observed later treatment

Treatment recorded in citing cases followed in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Good law Followed in 1 case and applied in 0 cases, with no adverse treatment recorded. Citations rising — 7 citing cases on record, 4 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court of Appeal struck out a notice of appeal as null and void. It held that under Rule 83(3), an appellant seeking to exclude time taken to prepare proceedings must prove service of the letter applying for the record on the respondent by having the letter endorsed. Since the applicant's counsel had stamped only the notice of appeal and not the application letter, and the affidavit of service was filed two and a half years later and unsatisfactory, service of the letter could not be proved. The appellant therefore lost the benefit of Rule 83(3) and the appeal was time-barred. The second ground, on omission of documents, was dismissed as without merit.

Outcome

Notice of Appeal in Civil Appeal No. 82 of 2007 struck out with costs

Facts

The applicant, National Housing & Construction Co. Ltd, had a pending trespass suit against the respondent in the High Court (Land Division), seeking to evict her. The respondent filed Miscellaneous Application No. 467 of 2005 for a temporary injunction to prevent eviction, which was dismissed by Maitum J. on 20 April 2007. The respondent filed a notice of appeal (Civil Appeal No. 82 of 2007) on 7 May 2007. The record and memorandum of appeal were filed on 31 December 2007, beyond the 60-day limit. To exclude time for preparation of proceedings under Rule 83, the respondent needed to prove she served the applicant's counsel with the letter requesting typed proceedings. The applicant's counsel had stamped only the notice of appeal, not the application letter. The respondent's affidavit of service was filed on 12 November 2009, over two years after the alleged service on 9 May 2007. The applicant moved to strike out the appeal as incompetent.

Issues

  1. Whether Civil Appeal No. 82 of 2007 was incompetent or incurably defective for failure to serve on the respondent the letter applying for the typed proceedings, so as to be struck out.
  2. Whether omission of certain primary documents from the record of appeal without leave of court rendered the appeal incurably defective.

Orders

  • On the basis of Ground 1, the Notice of Appeal is struck out with costs.
  • Ground 2 answered in the negative.

Rules and key headnotes

Civil Procedure — Appeals — Rule 83(3) Court of Appeal Rules — Mandatory Service and Endorsement of Letter Applying for Proceedings
To benefit from the exclusion of time under Rule 83(3) of the Court of Appeal Rules, an appellant must prove service of the letter applying for the record of proceedings on the respondent by having the letter endorsed; service and proof of such service is mandatory, and absent endorsement the appellant cannot claim the time exclusion.
Civil Procedure — Appeals — Effect of Failure to Serve Application for Proceedings — Notice of Appeal Rendered Null and Void
Where the letter applying for the record of proceedings was never proved to have been served on the respondent, an appeal filed outside the sixty-day period prescribed by Rule 83(1) is out of time, and the notice of appeal is null and void and liable to be struck out.
Civil Procedure — Record of Appeal — Omission of Documents — Rule 87 and Respondent's Remedy Under Rule 90
The omission of a document from the record of appeal is not necessarily fatal where the document has no bearing on the appeal; the justices hearing the appeal may decide whether an omitted document is material, and a dissatisfied respondent may invoke Rule 90 to prepare a supplementary record.

Legislation cited (11)

  • Judicature (Court of Appeal) Rules S.I. 13-10 r.43
  • Judicature (Court of Appeal) Rules S.I. 13-10 r.44
  • Judicature (Court of Appeal) Rules S.I. 13-10 r.77(1)
  • Judicature (Court of Appeal) Rules S.I. 13-10 r.82
  • Judicature (Court of Appeal) Rules S.I. 13-10 r.83(1)
  • Judicature (Court of Appeal) Rules S.I. 13-10 r.83(2)
  • Judicature (Court of Appeal) Rules S.I. 13-10 r.83(3)
  • Judicature (Court of Appeal) Rules S.I. 13-10 r.87
  • Judicature (Court of Appeal) Rules S.I. 13-10 r.87(4)
  • Judicature (Court of Appeal) Rules S.I. 13-10 r.90
  • Civil Procedure Rules O.5 r.16

Cases cited (4)

  • Enhas Limited v Henry Mugino (Civil Application No. 26 of 2006)
  • Afmc Co-operilive Society V Uganda Railways Corporilion (2002) 1 EA
  • Shoban V ABC Holding Corporation (2004) 2 E A 262
  • Commercial Bank of Afriu V Ndirangu (2000) 1 E. A. 29

Cases citing this judgment (7)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

National Housing & Construction Company Limited v Kyomukama (Civil Application No. 133 of 2009) [2011] UGCA 18 (2 September 2011)
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.