Uganda National Examinations Board v Mparo General Contractors Limited (Civil Application 19 of 2004)

Observed later treatment

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.

Holding

The court held that no appeal lies to the Supreme Court from a Court of Appeal order striking out a notice of appeal, because such an order is an incidental, procedural step and not a decision on the merits of a first appeal as required by s.6(1) of the Judicature Act; appellate jurisdiction springs only from statute. Striking out a notice of appeal under Rule 81 is not a final decision and does not bar the intended appellant from seeking reinstatement or extension of time. Absent a valid notice of appeal, Rule 5(2)(b) was unavailable, and an application for stay that may go to either court should ordinarily be made first to the lower court. The application was struck out as incompetent.

Outcome

Application for stay of execution struck out as incompetent

Facts

A dispute between the Uganda National Examinations Board and Mparo General Contractors Ltd was referred to arbitration. The arbitrator, Arch Kamya, made an award in favour of the respondent, which was filed in the High Court. The Board's application to set aside the award was refused and the award confirmed by the High Court (Okumu Wengi, J). The Board filed a notice of appeal to the Court of Appeal and deposited the arbitral sum of UGX 150,085,370 as security, obtaining a stay of execution, but was slow in obtaining the proceedings and judgment. Its application for stay in the Court of Appeal was rejected, and on 23 August 2004 that court struck out the notice of appeal for failure to institute the intended appeal. The Board then filed a notice of appeal to the Supreme Court against the striking-out order and applied to the Supreme Court for stay of execution of the High Court decree, prompting the respondent's preliminary objection.

Issues

1. Whether an appeal lies to the Supreme Court against a Court of Appeal order striking out a notice of appeal.
2. Whether Rule 5(2)(b) of the Rules of the Supreme Court is available to stay execution of a High Court decree where there is no valid notice of appeal and no appeal lies to the Supreme Court.
3. Whether the application for stay of execution ought first to have been made to the Court of Appeal before being brought to the Supreme Court.

Orders

• The preliminary objection is upheld; the application is incompetent and is struck out with costs to the respondent.
• The request for a certificate of two counsel is refused; the respondent shall have costs of only one counsel.

Rules and key headnotes

Legislation cited (12)

• Judicature Act s.6
• Judicature Act s.6(1)
• Judicature Act s.6(2)
• Constitution Article 132(2)
• Constitution Article 132(3)
• Rules of the Supreme Court Rule 5(2)(b)
• Rules of the Supreme Court Rule 40(2)
• Rules of the Supreme Court Rule 42
• Rules of the Supreme Court Rule 72
• Rules of the Supreme Court Rule 81
• Rules of the Supreme Court Rule 4
• Rules of the Supreme Court Rule 1(3)

Cases cited (3)

• Attorney General v Shah (No.4) [1971] EA 50
• Uganda vs r,ule (1973) EA 362
• Ralph v R (1960) EA 310

Cases citing this judgment (8)

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.

• Attorney General v Kikwanzi (Civil Application 13 of 2019; Civil Application 15 of 2020)
• Heritage oil and Gas Limited v Uganda Revenue Authority (Civil Appeal 3 of 2021)
• Obwana v The Registered Trustees of Tororo Diocese (Civil Application 14 of 2021)
• China Henan International Cooperation Group Co. Ltd v Kyabahwa (Civil Application 30 of 2021)
• Jomayi Property Consultants Ltd v Maviiri (Civil Reference No. 174 of 2015)
• Zubeda Mohamed & Anor v Wallia & Anor (Civil Reference 7 of 2016)
• Kasirivu Atwooki & 3 Ors v Bamurangye Baroroza & 53 Ors [2010] UGSC 25 followed
• Beatrice Kobusingye v Fiona Nyakana and Anor (Civil Appeal 5 of 2004)

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