Wakilii

Ndiwalana v Namutete (Civil Appeal No. 72 of 2022)

High Court · [2023] UGHCLD 106 · 2023 Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court ruling dismissing application to set aside ex-parte judgment
Decision
Appeal struck out as incompetent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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.

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 High Court struck out the appeal as incompetent. The appellant had appealed against an order made under Order 9 rule 12 of the Civil Procedure Rules, which is not among the orders from which an appeal lies as of right under Order 44. Prior leave of the trial court or appellate court was required before filing the appeal. The appellant obtained leave to appeal out of time from the Registrar without first obtaining leave to appeal. The Registrar lacked jurisdiction to grant such leave as the matter fell outside uncontested or formal interlocutory applications under Order 50 rules 2 and 3.

Outcome

Appeal struck out as incompetent

Facts

The respondent filed Civil Suit No. 32 of 2020 in the Chief Magistrate's Court of Kajjansi seeking a declaration that the appellant was a trespasser on approximately 0.68 decimals on land comprised in Block 52 plots 24 and 25 at Bukwe, a permanent injunction, eviction, general damages, mesne profits and costs. The matter proceeded ex-parte against the appellant who was served but did not file a defence. On 3 December 2020, the trial court found the appellant to be a trespasser, issued a permanent injunction and eviction order, and awarded general damages of UGX 1,000,000 and costs. The appellant then filed Miscellaneous Application No. 704 of 2020 to set aside the judgment on grounds of non-service. On 11 March 2021, the trial magistrate dismissed the application, finding that the appellant was properly served. The appellant filed Miscellaneous Cause No. 29 of 2022 before the High Court on 7 April 2022 seeking leave to appeal out of time. The Registrar granted the order on 1 September 2022. The appellant filed a memorandum of appeal on 28 September 2022.

Issues

  1. Whether the appeal was competent given that leave of court was required under Order 44 rule 2 of the Civil Procedure Rules before appealing the trial magistrate's order.
  2. Whether the Registrar had jurisdiction to grant leave to appeal out of time in respect of an order requiring prior leave under Order 44 of the Civil Procedure Rules.

Orders

  • Appeal struck out with costs.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal — Orders Requiring Prior Leave
An appeal does not lie as of right from an order made under Order 9 rule 12 of the Civil Procedure Rules. Prior leave of the court making the order or the appellate court is required under Order 44 rule 2 before filing such an appeal.
Civil Procedure — Appeals — Jurisdiction of Registrar — Leave to Appeal Out of Time
Where an order requires prior leave to appeal under Order 44 of the Civil Procedure Rules, the Registrar lacks jurisdiction to grant leave to appeal out of time. The Registrar's powers are limited to uncontested matters or formal interlocutory applications under Order 50 rules 2 and 3, and do not extend to matters requiring leave under Order 44.
Civil Procedure — Appeals — Competence — Failure to Obtain Prior Leave
An appeal filed without first obtaining the required prior leave of court under Order 44 rule 2 of the Civil Procedure Rules is incompetent and liable to be struck out.

Legislation cited (9)

Cases cited (1)

  • Kamuntu Henry v Uganda (Criminal Appeal No. 10 of 1997)

Full judgment

↓ Download PDF

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

Ndiwalana_v_Namutete_(Civil_Appeal_No._72_of_2022)_[2023]_UGHCLD_106_(18_April_2023)
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.