Buteera and Another v Kyairagwire and Another (CIVIL APPEAL NO. 28 OF 2009) [2018] UGCA 246 (4 June 2018)

#### THE REPUBLIC OF UGANDA

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

#### CIVIL APPEAL NO. 28 OF 2OO9

| 1. BUTEERA GEORGE | | |-----------------------|-------------| | 2, SEBUTUKU JAMES | APPELLANTS | | | VERSUS | | 1. KYAIRAGWIRE YOLAMU | | | 2, KIIZA BALAMU | RESPONDENTS | | | |

#### CORAM:

HON. MR. JUSTICE KENNETH KAKURU, JA

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA

HON. MR. JUSTICE CHRISTOPHER MADRAMA, JA

#### RULING OF JUSTICE GEOFFREY KIRYABWIRE

This is an old appeal instituted in 2009. lt is also part of the Court's backlog which has been outstanding for a long time. The Court on its own Motion directed that it be fixed for hearing.

When the matter came up for hearing today, Counsel for the Respondent informed Court that the Respondents had died and that she was in the process of obtaining letters of Administration. Counsel for the Appellants when asked by Court to

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comment on this was hesitant and was not clear as to whether to proceed or not only stating that he would do so if Court so directed as he was not clear who would pay his fees if he succeeded.

Rule85 (2) of the Rules of this Court is clear that any interested party may apply to Court to cause a legal representative of the deceased to be made a party in place of the deceased.

The Respondents according to the death certificates both died in2Ol4; nearly four years ago. No legal representative has been appointed and yet this appeal has been pending for the last 9 years.

Furthermorethis is a second appeal which underSection 72 of the Civil Procedure Act should be on points of law only. A look at the Memorandum of Appeal dated 4th May 2009 shows 3 grounds of appeal on "Law and facts". This also violates Section 72 of the Civil Procedure Act. No attempt to amend the Memorandum of Appeal has been made these last 9 years, to bring it into conformity with Section 72 of the Civil Procedure Act.

<sup>I</sup>find that thls Appeal as it stands, given the above observations can only be but an abuse of Court process leading to delay. There is plenty of evidence of this delay. This appeal first came up for hearing on the 271O9/2OLO; then again on the 07/O2l2O11when the hearing aborted because both parties were absent yet they were served. The record shows it was further fixed on 29/09/201,1, and 29/Ot/2O15.

I accordingly have no option but to strike it out under Rule 2(2) of the Rules of this Court. Parties should avoid "warehousing" appeals in this Court. Each party is directed to bear their own costs.

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We so Order.

Dated at Kampala this $\mathcal{D}$ $day$ June 2018

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA

## THE RIPUBLIC OF UGANDA

## IN THE COURT OF APPEAI, OF UGANDA AT KAMPALA

# CIVIL APPEAL NO. 28 OF 2OO9 1. BUTEERAGEORGE 2. SEBUTUKU IAMES APPELLANTS VERSUS RESPONDENTS 1. KYAIRAGWIRE YOLAMU 2, KIIZABALAMU

CORAM:

HON. MR. IUSTICE KENNETH KAKURU, JA

## HON. MR. IUSTICE GEOFFREY KIRYABWIRE, JA

HON. MR. IUSTICE CHRISTOPHER MADRAMA, JA

## RULING OF IUSTICE KENNETH KAKURU' JA

<sup>I</sup>have read Justice Geoffrey Kiryabwire's Ruling in draft and I agree that this appeal ought to be struck out.

The appeltant has failed to take necessary steps to prosecute the appeal since the death of the respondent as provided for under Rule B5(2) ofthe Rules of this Court.

Further the memorandum of appeal raises issues of law and fact offending Section 72 of the Civil Procedure Act.

It accordingly cannot stand. The appeal is incompetent and ought to be struck out under Rule 2(2) of the Rules of this Court.

By maiority of 2 to 1, this appeal is struck out with no order as to costs.

Dated at Kampala this 4 da <sup>018</sup>

Kenneth Kakuru

JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA,

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

# coA - 00 - cv - cA - 0028 0F <sup>2009</sup>

| 1. BUTEERAGEORGE} | | |--------------------|------------| | 2. SEBUTUKU JAMES) | APPELLANTS |

#### VERSUS

- 1. KYAIRAGWIRE YOLAMU} - 2. KilZABALAMU)...... RESPONDENTS

CORAM:

HON. MR. JUSTICE KENNETH KAKURU, JA

#### HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA

## HON. MR. JUSTICE CHRISTOPHER MADRAMA, JA

### RULING OF JUSTICE CHRISTOPHER MADRAMA

I have the benefit of listening to the decision of my learned brother Hon. Mr. Justice Geoffrey Kiryabwire JA with the concurrence of Hon. Mr. Justice Kenneth Kakuru, striking out the Appellant's appeal under Rule 2 (2) of the Rules of this Court.

I respectfully disagree with the decision of my colleagues striking out the appeal on the ground that the matter had not proceeded since 22nd August 2014 and 14th December 2015 when the Respondents respectively passed away. This is an appeal of 2009 arising from proceedings of 2005. The dispute arises from a sale agreement of !997. The case was decided by Land Trlbunal of Masindi on 25th July, 2005 before an appeal was made to the High Court. Rule 85 of the Judicature (Court of Appeal) Rules Directions allows the court to join a Legal Representative on the death of a party. lt provides that the Court shall on application of an interested party cause the Legal Representative of a party to be made a party in

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