Were v Mutibwa Mugaiula and Another (Civil Appeal No. 22 of 2013) [2020] UGCA 2175 (6 July 2020)

### THE REPUI]LIC OF UGANDA

#### IN THE COUR'I'OT APPDN I, OII UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 22 OF 2013

NICHOLAS WERE APPELI,ANT

1. MR. MARK MUTIIBWA MUGAI. ULA{'lhe Administrator Of 'l'he [isLate Of The l,ate M r. Sam Sewanyana)

2. MR. KARTSON NGOLOBE RESPONDENTS

(Appeal from the Judgment of the High Court of Uganda Civil Division (Hon. Justice V. F. MUSOKE KIBUUKA l.) in Company Cause No. 44 of 2007 arising out of H. C. C. S No. 719 of 2007)

# CORAM: Hon. Mr. f ustice Kenneth Kakuru, f A Hon. Mr. f ustice Geoffrey Kiryabwire, lA Hon, Mr. Justice Cheborion Barishaki, lA

# JUDGMENT OF THE COURT

When this appeal came up for hearing on 1Oth Decembcr 2018 Mr. Jamcs Okuku and Mr. Justirre Ssemuyaba learned Counsel appcarcd for the appellant while Mr. Aggrey Bwire and Mr. Michael Okecha learned Counscl appeared for the respondents.

Counsel for both parties sought and were granted leave to proceed by way ol written submissions. fudgment was thcreafter reserved to be delivered on a date to be given to the parties on notice

Before Judgment could be delivcred, the appellant sought to withdraw thc appeal and submitted to the Registrar of this Court a Notice of withdrawal consented to by the respondents, on 3'd March 2020 under Rule 94 (3) ofthe Rules of this Court.

That Rule provides as follows:-

"9aQ) If all the parties to the appeal consent to the withdrawal ol'the appeal, the appellant may lodge in the appropriate registry the document or documents signilying the consent of the parties; and the appeal shall then be struck out of the list of pending appeols."

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However, we note that the consent withdrawal was filed at the Registry after the suit had been called for hearing and was only pending Judgment.

Rule 94 (3) (Supra) appears to be applicable only when the appeal is pending hearing . We say so because the words "shall be struck out of the list of pending *appeals,*" signify that, the appeal ought to be pending hearing.

Further Rule 94 (1) provides:-

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1) An appellant may at any time after instituting his or her own appeal *in the court and before the appeal is called on for hearing, lodge in the* registry notice in writing that he or she does not intend further to *prosecute the appeal.*

Under this sub Rule (1) the appellant can only withdraw the appeal before it is called for hearing. While interpreting this Rule the Supreme Court in *Geoffrey Gatete And Angella Maria Nakigonya Vs William Kyobe, Supreme Court Civil Appeal No. 7 Of 2005,* was of the view that an appeal that had already been called for hearing and is only pending Judgment cannot be withdrawn without the leave of Court. We accept this as the correct position of the law.

Considering the circumstances of this appeal and the fact that the Country is under lockdown due to the global COVID 19 Pandemic we consider it appropriate to grant leave on our own motion to the appellant to withdraw the appeal under Rule 2(2) of the Rules of this Court.

Accordingly this appeal is hereby dismissed, the same having been withdrawn by the appellant with the consent of the respondents, under Rule 2(2) of the Rules of this Court. We have declined to strike the appeal out under Rule 94(3) of the Rules of this Court, since at the time the withdrawal by consent was filed it was no longer pending hearing.

We make no order as to costs.

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Dated at Kampala this 6u day of -}J\ 2020.

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Kenneth Kakuru IUSTICE OF APPEAL

Geoffrey Kiryabwire IUSTICE OF APPEAL

. Cheborion Barisha ,USTICE OF APPEAL

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