[2015] UGHCCD 164
The court held that the applicant failed to properly commence an appeal as required by Order 43 of the Civil Procedure Rules, having filed only a notice of appeal initially and subsequently filing a memorandum of appeal out of time and under a different case number. The attempt to link Civil Appeal No. 19/2013 and...
Source-derived case information.
- Citation
- [2015] UGHCCD 164
- Parties
- Appellant: Kunya Stephen; Respondent: Mirabu Bwote; Respondent: Tugalage Kamu
- Court
- HC: Civil Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- Civil Appeal No. 19/2013 & 102/2013
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Striking Out and for Stay of Execution
- Outcome
- application dismissed with costs
- Judges
- Namundi, J
- Legal Topics
- Appeal Procedure, Stay of Execution, Extension of Time, Striking Out, Memorandum of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kunya Stephen
Appellant
Mirabu Bwote
Respondent
Tugalage Kamu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Striking Out and for Stay of Execution
Legal Issues
- 1 Whether the application to set aside the striking out of Civil Appeal No. 19/2013 is competent and meritorious.
- 2 Whether there is a valid and competent appeal before the court to warrant a stay of execution of the decree in Civil Suit No. 40/2010.
Ratio Decidendi
The court held that the applicant failed to properly commence an appeal as required by Order 43 of the Civil Procedure Rules, having filed only a notice of appeal initially and subsequently filing a memorandum of appeal out of time and under a different case number. The attempt to link Civil Appeal No. 19/2013 and Civil Appeal No. 102/2013 as one was rejected, as the former was struck out for incompetence and the latter was filed out of time without leave. Since there was no competent appeal before the court, the application to set aside the striking out and for stay of execution was found to be incompetent and lacking in merit. The application was accordingly dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
28 paragraphs
**THE REPUBLIC OF UGANDA**
**IN THE HIGH COURT OF UGANDA AT JINJA**
**CIVIL APPEAL NO. 19/2013 & 102/2013**
(Arising from Misc. Application No. 001/2014)
**KUNYA STEPHEN :::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**
**VERSUS**
1. **MIRABU BWOTE** 2. **TUGALAGE KAMU :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**
**BEFORE: THE HON. JUSTICE GODFREY NAMUNDI**
**RULING**
This Application is brought under order 43 r. 4(1) of the Civil procedure Rules and section 98 of the Civil Procedure Act.
It seeks orders to set aside the striking out of Civil Appeal No. 19/2013 and also orders to stay execution of the Decree in Civil Suit No. 40/2010, pending the determination of Civil Appeal No. 102/2013.
Order 43 rule 4 (1) CPR provides:
1. **An Appeal to the High Court shall not operate as a stay of proceedings under a Decree or Order appealed from except so far as the High Court may order, nor shall execution of a Decree be stayed by reason only of an appeal having been preferred from the Decree, but the High Court may for sufficient cause order stay of the Decree. This presupposes that there is an existing Appeal.**
However, the facts giving rise to this Application are that the **‘appeal’** giving rise to this Application was struck out under Order 43 r. 1 CPR for being incompetent on 12/12/2013.
It is the Applicant’s submission that he instructed his lawyers to file an appeal against the Judgment in the lower Court and on 23/4/2013, Counsel duly filed a Notice of Appeal in this Court which was given No. 19/2013.
Later in October of the same year, a memorandum of Appeal was filed and it was given No. 102/2013. That this memorandum of Appeal was supposed to have been filed in Civil Appeal No. 19/2013 instead of being given a different number. Reference was made to the case of **Rose Nabirye Vrs. Rosa Muwangala – Misc. Application No. 50/89.**
The case cited however is distinguishable from the instant application. That application was for extension of time within which to appeal. The instant application is not an application for extension of time within which to appeal. The law is very clear.
Under Order 43 (1) CPR, Appeals in the High Court are commenced by way of filing a Memorandum of Appeal.
This was not done, instead the Applicant filed a Notice of Appeal.
The filing of a Memorandum of Appeal No. 102/2013 – six months later was clearly out of time and therefore is not allowed.
Trying to connect Appeal No. 19/2013 and Appeal No. 102/2013 as one does not make sense. Civil Appeal No. 19/2013 was no appeal and was clearly struck out for that reason. It could not be cured by bringing the memorandum of Appeal (102/2013) which the Applicant wants Court to believe was part and parcel of Civil Appeal No. 19/2013. The said memorandum of Appeal was accordingly filed out of time without leave of Court.
Counsel for the Applicant, realising these mistakes and their own lack of diligence should have instead withdrawn the purported Appeal No. 102/2013 and instead applied for extension of time to appeal.
The instant Application also seeks to stay execution of the Orders of the lower Court.
This can only arise if there is a competent appeal in this Court.
It is my finding that this Application is incompetent and lacks merit. It is dismissed accordingly with costs.
**Godfrey Namundi**
**JUDGE**
**19/2/2015**