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Bakamwoga v Kencuriko and Another (Civil Appeal 32 of 2003) [2004] UGCA 31 (29 July 2004)
- Citation
- [2004] UGCA 31
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- Court of Appeal of Uganda
- Panel
- Mukasa-Kikonyogo, DCJ, Kitumba, JA, Byamugisha, JA
- Case number
- Civil Appeal 32 of 2003
- Language
- English
More details
- Court
- Court of Appeal of Uganda
- Panel
- Mukasa-Kikonyogo, DCJ, Kitumba, JA, Byamugisha, JA
- Case number
- Civil Appeal 32 of 2003
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the appellant failed to comply with the mandatory timelines for filing the notice of appeal and serving the record of appeal as stipulated by the Court of Appeal Rules. The delay was inordinate and not satisfactorily explained. While Article 126(2)(e) of the Constitution allows courts to administer substantive justice without undue regard to technicalities, this does not permit disregard of clear procedural requirements. The court upheld the preliminary objection and struck out the appeal as incompetent, awarding costs to the respondents.
Court disposition
appeal struck out as incompetent
Orders
- The appeal is struck out for being incompetent.
- Costs are awarded to the respondents.
02
Material facts
Parties
Joseph Bakamwoga
Appellant Counsel: Mark BwengreFabiano Kencurtkoi
Respondent Counsel: Eric MuhweziStephen Beshetsya
Respondent Counsel: Eric Muhwezi03
Procedural history
Posture
Civil Appeal / Preliminary Objection Ruling
04
Questions and positions
Legal issues
- 01
Whether the notice of appeal and the appeal were filed within the prescribed time limits under the Rules of Court.
- 02
Whether the delay in filing and serving the appeal can be excused under Article 126(2)(e) of the Constitution.
- 03
Whether the appeal should be struck out as incompetent due to procedural non-compliance.
Party arguments
- Applicant
- Counsel for the appellant acknowledged the procedural delays but argued that these were procedural rather than substantive issues. He relied on Article 126(2)(e) of the Constitution, requesting the court to excuse the delay and hear the appeal on its merits.
- Respondent
- Counsel for the respondents raised a preliminary objection, contending that both the notice of appeal and the appeal were filed out of time without leave of court. He cited specific breaches of Rule 75(2) and Rule 87(1) of the Rules of Court, and prayed for the appeal to be struck out as incompetent under Rule 81.
05
Court’s reasoning
Legal principles
- 01
Rule 75(2), Rule 87(1), Rule 81 of the Court of Appeal Rules
Court rules prescribe strict timelines for filing notices of appeal and serving records of appeal; non-compliance renders the appeal incompetent unless delay is satisfactorily explained.
- 02
Utex Industries Ltd v Attorney General, S.C Civil Application No. 52 of 1995
Delays in procedural steps may only be excused if satisfactorily explained.
- 03
Article 126(2)(e) of the Constitution of Uganda
Substantive justice should be administered without undue regard to technicalities, but procedural rules must still be respected.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the appellant failed to comply with the mandatory timelines for filing the notice of appeal and serving the record of appeal as stipulated by the Court of Appeal Rules. The delay was inordinate and not satisfactorily explained. While Article 126(2)(e) of the Constitution allows courts to administer substantive justice without undue regard to technicalities, this does not permit disregard of clear procedural requirements. The court upheld the preliminary objection and struck out the appeal as incompetent, awarding costs to the respondents.
Obiter and limits
- Rules of court provide a timetable to avoid delays; any delay must be satisfactorily explained.
- Failure to take essential procedural steps without explanation cannot be excused under the guise of substantive justice.
Court disposition
appeal struck out as incompetent
- The appeal is struck out for being incompetent.
- Costs are awarded to the respondents.
Source and reliance status
Court of Appeal of Uganda
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of Appeal of Uganda
Judgment
THE REPUBLIC OF UGANDA
TN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CORAM: HON. JUSTICE L. E. M. MUI{ASA-KIKONYOGO, DCJ HON. JUSTICE C. N. B. KITUMBA, JA HON. JUSTTCE C. K. BYAMUGTSHA, JA
CIVIL APPEAL NO. 32 OF 2OO3
a
t
JOSEPH BAKAMWOGA APPELLANT VERSUS 1 FABIANO KENCURTKOI RESPONDENT
2 STEPHEN BESHETSYA]
20 (Arising from High Coutt Misc, Civtl Application No. 739 oJ 1993)
RULING OF THE COURT
When the appeal carne up for hearing Mr. Eric Muhwezi, learned counsel, for the respondents raised a preliminary objection.
He contended that the notice of appeal and the appeal were incompetent. Counsel submitted that the notice of appeal was 30 filed on 28th September 2OO1 against a decision of the court which was given on 2nd May 1994. This was more than seven
years out of time without leave of court to extend time within which to file the notice of appeal. This was outside the prescribed time under Rule 75 (2) of the Rules of this court.
Counsel further submitted that the record of appeal was hled 10 on 2nd April 20O3 and served on the respondents' counsel on 13th July 2004. This was approximately one year and three months instead of seven days provided by Rule 87 (1). Counsel prayed court to strike out the notice of appeal and the appeal under Rule 81 of the Rules of this court as being incompetent.
Mr. Mark Bwengre, learned counsel for the appellant appreciated the procedural points raised by counsel for the respondents. He, however, submitted that the points raised 20 by counsel were merely procedural in nature and not substantive law. He relied on Article 126 l2l (e) of the Constitution. He prayed court to excuse the delay and to hear the appeal on merit.
We agree with Mr. Muhwezi's submission that there was inordinate delay in taking essential steps to lile and prosecute the appeai. In the case of Utex Industries Ltd Vs Attorney General. S. C Civil Application No. 52 of 1995. The Supreme Court said that "in order to qaoid delags ntles of court 30 provtde a timetable uithin which certain steps ought to
tqken. For ang delag to be excused it must be explained satisfoctorilg".
In the matter now before us the failure to take essential steps was not satisfactorily explained. In the premises we uphold 10 the objections and strike out the appeal for being incompetent,
with costs to the respondents.
Dated at Kampala this 29th day of July 2004.
L. E. M. Mukasa-Kikonyogo Hon. Deputy Chief Justice
20 C. N. B. Kitumba, Hon. Justice ofAppeal
> C. K. Byamugisha Hon. Justice ofAppeal
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