[2023] UGSC 66

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# [COMMERCIAL DMSION]

### CIVIL APPEAL NO. 49 OF 2O2O

DAVID MULWANA KIBERU::::::::::::::::::::::::::::::::::::::::::APPLICANT

#### VERSUS

UNS-SACCO LIMITED:::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

## BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI

### RULING ON PRELIMINARY OBJECTION

#### BACKGROUND

Counsel for the respondent raised a preliminary objection that this appeal is improperly before this court as the applicants had not sought leave ofthe lower Court and this Court before filing the said appeal and prayed that the same is struck off with costs.

Counsel for the applicant submitted that there was a final judgment in this matter and the applicant is entitled to appeal as ofright'

#### RULING

I have listened to the submissions of counsel for the parties on the preliminary objection raised by counsel for the respondent to wit:

l. That this appeal is improperly before this court as the appellant did not seek leave from the lower court and this court to appeal against the ruling.

Section 220 (l) (a) of the Magistrates Act provides that Appeals in Magistrates Court shall lie from the decrees or any part of the decrees and from the orders ofa Magistrate's court presided over by the Chief Magistrate or a Magistrate Grade 1 in the exercise of its original jurisdiction to the High Court.

sl"a,

The right to appeal is a creature of statute and for one to appeal, he or she must have a right to appeal granted by law (Alinyo-v-R [1974] EA 544).

Order 44 rule 1(1) of the Civil Procedure Rules (CPR) sets out which orders are appealable as of right to the Court and Order 44 rule 1(2) of the said Rules states that an appeal under these Rules shall not lie from any other order except with leave of the court making the order or of the court to which an appeal would lie if leave were given.

This clearly means that any appeals from any orders not stipulated in Order 44 rule 1(1) of the CPR shall be lodged after seeking the leave of the Court. According to Order 44 rule 1(3), applications for leave to appeal shall in the first instance be made to the court making the order sought to be appealed from.

On perusal of the law, Order 44 rule 1(1) of the CPR which specifies the orders from which an appeal lies as of right does not include orders that are made under Order 36 of the CPR. The original suit in this matter was brought under Order 36 rule 3 of the CPR and, therefore, the applicant ought to have first sought the leave of the Court that made the order therein.

I am inclined to agree with the decision of Honorable Justice Hellen Obura in the case of Matovu Sarah & 2 others versus Abacus Pharmacy(Africa) Ltd, Civil Appeal No. 11/2012 where she held that decisions made under Order 36 are not appealable as of right under Order 44 rule 1. Leave ought to be sought under Order 44 rule 2 to appeal against a decision made under Order 36.

In the case of Dr Sheikh Ahmed Mohammed Kisuule v Green Land Bank (in Liquidation) SCCA No. 11 of 2010 Honorable Kitumba JSC held, where a preliminary objection had been raised on the ground that the appellant had not sought leave to the High Court or Court of Appeal prior to filing the appeal, that leave is not merely a procedural matter but an essential step.

In the case of Makhangu -v-Kibwamu [1995-1998] EA 175, it was held that the position of the law is now settled, where leave is required to file an appeal and such leave is not obtained, the appeal filed is incompetent and cannot even be withdrawn. It must be struck out.

In the instant case, the appellant omitted an essential step and did not seek leave of the lower Court that made the order he seeks to appeal against.

Durp

I, therefore, find that this appeal is incompetent before this Court and the same is accordingly struck out.

Costs are awarded to the respondent accordingly.

Dry In fature

HON. LADY JUSTICE ANNA B. MUGENYI **DATED**....................................