Kibuuka v Namisango (Civil Application 18 of 2020) [2023] UGHC 327 (27 February 2023)

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT MASAKA**

## **CIVIL APPLICATION NO. 18 / 2020**

## **(ARISING FROM CIVIL APPEAL NO. 17 / 2019)**

# **(ALL ARIAING FROM MASAKA CHIEF MAGISTRATE'S COURT CIVIL SUIT NO. 1 OF 2018)**

**SAIDI KIBUUKA………………………………………………. APPLICANT**

### **VERSUS**

**NAMISANGO RUTH……………………………………………RESPONDENT**

#### **RULING**

*Before: Lady Justice Victoria Nakintu Nkwanga Katamba*

### **BACK GROUND**

The Respondent was the Plaintiff in Land Civil Suit Number 01 of 2018 claiming interest as a lawful occupant in property comprised in Leasehold Register Volume 403 Folio 22 Plot 32 Horbert Avenue. She had occupied the property for twenty-one years when the Defendant/Applicant herein in 2017 issued her an eviction notice requiring her to vacate the premises. The Applicant/Defendant fin his Written Statement of Defence filed a Counter claim in which he alleged that the Plaintiff/Respondent was illegally in occupation of the suit premises. The suit was determined in favour of the Defendant on the 14th day of December, 2018. The Plaintiff/Applicant then filed an appeal on the 21st day of March, 2019 three months after judgment had been delivered hence this application.

This application was brought by way of Notice of Motion under Sections 14 and 33 of the Judicature Act, Section 79 (1), S. 98 of the Civil Procedure Act and Order 52 rr 1 &3 of Civil Procedure Rules seeking for Orders that;

1. The Respondent's purported Memorandum of appeal, filed in Court vide Civil Appeal No. 17 of 2019 be struck out.


- 2. A declaration that the Respondent failed to take an essential step in commencing an appeal from Masaka Chief Magistrate's Court No. 1 of 2018. - 3. A declaration that no valid appeal lies before Court from Masaka Chief Magistrates' Court Civil Suit No. 1 of 2018 and - 4. Costs of the Application.

The grounds for the Application as set out in the Notice of Motion are;

- 1. The Respondent filed Civil Suit No, 1 of 2018 against the applicant herein, and the applicant filed a counterclaim and both matters were heard and determined by Court in favour of the applicant against the Respondent on the 14 / 12 / 2018. - 2. After the said judgment on 14/12 /2018, the Respondent purported to challenge the decision of the Chief Magistrate by filling a Memorandum of Appeal in Court on the 21/3/2019. - 3. Ever since the Respondent filed the purported Memorandum of Appeal she has never taken any step to have the purported appeal fixed for hearing. - 4. The Respondent never took any of the essential and requisite steps in commencing and prosecuting an appeal before this Court as required and prescribed by law. - 5. It is in the interest of justice that the purported Memorandum of Appeal is struck out and the application is granted.

Issues:

- **1.** Whether the Respondent took the essential and necessary steps in commencing and prosecuting Civil Appeal No.17 of 2019. - **2.** Whether Civil Appeal No. 17 of 2019 is competently before court.


**3.** What remedies are available to the parties.

# **Determination of the Court:**

As already stated in the background to the application, Civil Suit No.1 of 2018 was determined by the learned Chief Magistrate on the 14th day of December, 2018. On the 21st day of March, the Plauintiff/Respondent filed Civil Appeal No.17 of 2019.

**Section 79 of the Civil Procedure Act** provides for institution of for appeals**.**

It provides that except as otherwise specifically provided in any other laws, every appeal shall be entered;

- a) Within thirty days of the date of the decree or order of the Court; or - b) Within seven days of the date of the order of the registrar, as the case may be, appealed against; but the appellate Court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed.

**S. 79 (2) of CPA**, provides that in computing the period of limitation prescribed by this section, the time taken by the court or the registrar in making a copy of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded.

A perusal of the record shows that the Respondent/Defendant wrote to the Deputy Registrar of the court in respect to Civil Appeal No. 17 of 2019, on the 7th day of December,2020 requesting for a record in Civil Suit No.42 of 2005 so that, in her own words, "I can make a review in Civil Suit No 42 of 2005." The head note was in respect to Civil Appeal No.17 of 2019 and the body of the letter was in relation to Civil Suit No.42 of 2005. She did not indicate that it was in any way connected to Civil Suit No.1 of 2018. The letter was not only written nearly two years after the institution of the appeal on 21st March, 2019, it was requesting for proceedings in another matter altogether.

Secondly, the Memorandum of appeal was filed three months after judgment had been delivered. Besides the letter of 7th December, 2020 there is no communication


asking the Registrar for the record of proceedings in Civil Suit No 1 of 2018. In fact, the letter of 7th December, 2020 asks for proceedings in Civil Suit No.42 of 2005.

The law in Section 79 of the Civil Procedure act is clear. Since judgment in the Chief Magistrate's Court was delivered on 14th December, 2018, the Appellant ought to have filed a Memorandum Of Appeal within 30 days from that date.

Further to the above, the Respondent has not advanced any good reason to allow her to benefit from the provisions of section 79(2) of the Civil Procedure Act. (see *Tight Security Ltd -Vs- Chartis Uganda Insurance Co. Ltd And Anor H. C. C. A No. 14/ 2016 and Migadde and Ors vs Nakibule and Ors( Civil appeal No 53 of 2019).*

The Application is therefore allowed. The Appellants appeal being filed out of time is therefore incompetent and is hereby dismissed.

The Respondent being unrepresented, each party shall bear its own costs.

I so order.

.

Dated and delivered electronically at Masaka this 27th day February, 2023

…………………………………..

Victoria NN Katamba Judge.