Bakamwoga v Kencuriko and Another (Civil Appeal 32 of 2003) [2004] UGCA 31 (29 July 2004)

### 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

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#### 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