[2025] UGCA 229

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(CORAM: Richard Buteera, DCJ; Hellen Obura, JA & Oscar Kihika, JA)

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CIVIL APPLICATION NO.055 OF 2019

(Arising from Miscellaneous Application No. 235 of 2017) (Arising from Miscellaneous Application No. 1012 of 2017) (Arising from Miscellaneous Application No. 483 of 2014) (Arising from HCCS No. 363 of 2014)

PROF. MURINDWA RUTANGA :::::::::::::::::::::::::::::::::::

#### VERSUS

## **MAKERERE UNIVERSITY ::::::::::::::::::::::::::::::::::::**

## **RULING OF COURT**

The Applicant brought this application by Notice of Motion under Rules $2(2)$ ; 53 (2)(c), 78(1) & 82 of the Judicature (Court of Appeal **Rules) Directions** seeking orders that: -

a) The Respondent's Notice of Appeal be struck out

b) Costs of the application be provided for

The application is brought on the following grounds that are contained in the affidavit of Prof. Murindwa Rutanga.

- 1. The Respondent sued the Applicant in the High Court in **MA No.** 235 of 2017. The High Court decided the application in favor of the applicant on $28$ ^th November 2018. - 2. The Respondent, without seeking the leave of Court, filed a Notice of Appeal in this court on 29^th November 2018, seeking to appeal against the High Court interlocutory order.

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- 3. The Applicant filed this application on the $22^{nd}$ February, 2019 seeking to, among others strike out the notice of appeal since the Respondent failed to take essential steps to prosecute the appeal; - 4. The Respondent's Notice of Appeal is incompetent and an abuse of court process. - 10

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- 5. The Respondent has never filed any Memorandum of Appeal or served her appeal since filing the Notice of Appeal. - 6. The Respondent's intended appeal is against an interlocutory order and is seeking to reinstate a dismissed interlocutory application which itself sought to set aside a Decree entered in a suit filed in 2014. - 7. The Respondent has failed to take essential steps to prosecute the Appeal. - 8. The appeal has been overtaken by events and execution was long completed.

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9. It is just and equitable that the Notice of Appeal be struck out with costs.

The Respondent did not file an affidavit in reply to the applicant's Notice of Motion.

#### **Representation** 30

At the hearing of this application, Dr. Akampumuza James Rutanga appeared for the Applicant while Mr. Busobozi Henry holding brief for Mr. Denis Wamala appeared for the respondent. Both parties were absent.

Court gave both counsel schedules on which to file their affidavits and 35 pleadings. The Respondent was given a week from the date of hearing which was $27^{th}$ January 2025 to file his affidavit in reply and thereafter, file his written submissions.

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# Submissions by Counsel for the Applicant

Counsel prayed that since the respondent did not comply with Court's direction to file its affidavit in reply within 7 days, Court proceeds exparte to determine this application.

Counsel raised two issues for the determination by this Court.

- 1. Whether the respondent has failed to take some essential steps in the proceedings in prosecuting his appeal? - 10 2. What remedies are available?

Counsel submitted that the respondent failed to take the essential steps in persecuting the appeal. He cited rule 82 of the Judicature (Court of Appeal) Rules SI 13-10 which provides;

"A person on uthom a Notice of Appeal hrrs been sented. mag at ang time, either before or afi,er the institution of the appeal, applg to the court to strike out the notice of appea\ as the cclse, mag be, on the ground. that no appeal lies or thqt some essential step in the proceedings has not been to.ken in the prescribed time."

- Counsel submitted that the respondent did not file his memorandum of appeal within the prescribed time of 60 days as provided in rules 82, 83 (1) and 84(a) of the Court of Appeal Rules. In addition, counsel averred that up to date, the respondent has never filed his memorandum of appeal. 20 - He cited Kasibante Moses v Electoral Commission Election Petition Application No. O7 of 2OL2 to support his position. 25

Counsel submitted that no essential step was taken by the respondent to prosecute his appeal which amounts to an abuse of court process. Counsel prayed that court strikes out the Notice of Appeal in that regard.

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It was counsel's submission that the respondent did not seek leave in the High Court to file the instant appeal rendering it defective under Order 44 of the Civil Procedure Rules.

Counsel cited Andrew Maviri v Jomayi Property Consultants Ltd **Civil Application No. 274 of 2014** to support this contention.

It was counsel's contention that non-compliance with substantive law and procedural rules cannot be overlooked as a mere technicality. Counsel cited Utex Industries v Attorney General SCCA No. 52 of **1995** where court held: -

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"Taking an essential step is the performance of an act by a party whose duty is to perform that fundamentally necessary action demanded by the legal process, so that subject to permission by court, if the action is not performed by law prescribed, then whatever legal process has been done before becomes a nullity, as against the party who has the duty to perform that act."

Counsel submitted that an intending appellant ought to actively take the necessary steps to prosecute his/her intended appeal. He submitted that the respondent was not diligent as the law requires of an intending appellant in an appeal.

Counsel prayed that the Notice of Appeal and the entire appeal be struck out with costs.

## Determination by court

We shall start by addressing counsel for the applicant's prayer for 25 Court to proceed *ex-parte*, on the basis that the respondent failed to comply with the Court Order to file his affidavit in reply and written submissions in time as ordered.

On 27^th January 2025 this matter came up for hearing, Mr. Busobozi Henry was holding brief for Mr. Denis Wamala. He appeared for the 30 respondent. He applied for time to file an affidavit in reply and his written submissions. The Court granted Mr. Busobozi's request.

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The applicant was ordered to file his written submissions within 7 days and the respondent would respond within four (4) days from the date of hearing.

Dr. Akampumuza was to file a rejoinder if any, two days after the respondent's written submissions in reply. $\mathsf{S}$

Despite the clear and mandatory nature of the Court's directive, the Respondent did not file the affidavit in reply. He did not file any written submissions within the specified time. No such filings have been made up to the date of writing this ruling.

- We find that the Respondent's omission to file the necessary 10 documents within the time prescribed by Court constitutes material non-compliance with the Court's directions. The Court will therefore grant the applicant's application and proceed to handle the application ex-parte. - The instant application is for the Notice of Appeal to be struck out for 15 the applicant's failure to take an essential step to prosecute his appeal.

The meaning of failure to take an essential step in the proceedings was considered by this Court in **Andrew Maviri v Jomayi Property**

Consultants Ltd, CA Civil Application No.274 of 2014, where the 20 Court stated that taking an essential step is the performance of an act by a party whose duty is to perform that fundamentally necessary action demanded by the legal process, so that subject to permission by the Court, if the action is not performed as by law prescribed, then 25 whatever legal process has been done before, becomes a nullity, as against the party who has the duty to perform that act.

In **Kasibante Moses v Electoral Commission (supra)** court held that: -

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"it is now settled law that it is the duty of the intending appellant to actively take the necessary steps to prosecute his/her intended appeal. It is not the duty of the court or any other person to carry out his duty for the intending appellant."

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In the instant case, there is nothing on record to show that the respondent took essential steps to prosecute his appeal after filing a Notice of Appea-l. He filed no Memorandum and Record of Appeal.

We find that the respondent did not take essential steps in the proceedings within the prescribed time as required by the rules.

applicant. We accordingly grant the application and order that the Notice of Appeal hled by the respondent be struck out with costs to the

We so order.

Dated at Kampala this rh day of ¹⁴ 10 2025

RICHARD BUTEERA DEPUTY CHIEF JUSTICE

HELLEN OBURA JUSTICE OF APPEAL

OSCAR I IKA JUSTICE OF APP-,EAL .a .,