High Court Confirms Notice of Appeal Alone Does Not Constitute a Competent Appeal; Strict Compliance with Rule 83 Required; ECCMIS Access Obligates Advocates; Stay Applications Depend on Valid Appeals

Waboga David
Sep 7
6 min read

Background

The application arose from Civil Suit No. 3037 of 2016, where the respondent, Buluno Serunkuma, challenged the validity of lease agreements with the applicants, Decon Investments (U) Ltd and Kids of Africa Swiss African Children’s Village, alleging violations of the Illiterates Protection Act, Cap 78. The suit concerned land at Busiro Block 429, Plots 26 and 27, Bugiri Bukasa, Kisubi Entebbe, Wakiso District (the “suit land”).

On July 11, 2017, the parties executed a Consent Decree in Civil Suit No. 3037 of 2016, recognising the second applicant’s leasehold interest and withdrawing all claims by the respondent against the second applicant. Concurrently, the respondent sold his Mailo interest in the suit land to MMAKS Nominees Limited for UGX 100,000,000, paid via cheques and a cash payment.

In Miscellaneous Application No. 1231 of 2022, the respondent sought to set aside the Consent Decree, alleging it was illegal for non-compliance with the Illiterates Protection Act. On November 10, 2023, the High Court set aside the Consent Decree, finding that the respondent, an illiterate person, was not present during its endorsement, and no certificate of translation was provided to prove he understood its terms.

The applicants filed Miscellaneous Application No. 0442 of 2024, seeking a stay of proceedings in Civil Suit No. 3037 of 2016 pending their appeal against the November 2023 ruling. The application was supported by an affidavit from Eriya Mikka, an advocate with MMAKS, and opposed by the respondent through an affidavit by Atuhairwe Wyckliff.

Issues for Determination

The court addressed three main questions:

Whether the applicants’ affidavit in rejoinder and written submissions, filed late and exceeding court-directed page limits, should be disregarded.
Whether the proceedings in Civil Suit No. 3037 of 2016 should be stayed pending the applicants’ appeal to the Court of Appeal, based on:
- Existence of a competent notice of appeal.
- Presence of a valid and competent pending appeal.
- Whether the appeal is arguable with a likelihood of success.
- Existence of special and exceptional circumstances warranting a stay.

Submissions of the Parties

Applicants’ Submissions

The Applicant submitted that they filed a Notice of Appeal on November 16, 2023, duly served on the respondent, satisfying Rule 76 of the Judicature (Court of Appeal Rules) Directions.

The applicants argued that their failure to file a memorandum of appeal within 60 days was due to the Registrar’s delay in providing certified proceedings. They contended this delay should not prejudice their application.

The applicants cited eight grounds of appeal, including errors in law and fact by the trial judge, such as ignoring evidence that the respondent understood the Consent Decree and failing to order a refund of UGX 100,000,000. They relied on Joseph Gitahi Gachau v. Pioneer Holdings to argue that an arguable appeal need not guarantee success but must warrant full argument.

The applicants argued that the respondent’s retention of UGX 100,000,000 without a refund order constitutes unjust enrichment and that proceeding with the main suit risks conflicting decisions, rendering the appeal nugatory. They cited Turbo Highway Eldoret Ltd v. Muniu to support the need for a stay to prevent grave injustice.

The applicants invoked Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, and Order 52 Rules 1 and 2 of the Civil Procedure Rules, referencing Halsbury’s Laws of England and Bivac International SA for the principles governing stay of proceedings.

Respondents’ Submissions

The Respondent argued that the applicants’ affidavit in rejoinder, filed on September 19, 2024 (over a month late), and their 10-page submissions, filed on November 22, 2024 (past the November 15 deadline and exceeding the 5-page limit), violated court directives and should be struck out, citing Ramgarhia Sikh Society v. Ramgarhia Sikh Education Society Ltd and Stop and See (U) Ltd v. Tropical Africa Bank Ltd.

The Respondent contended that the applicants failed to file a memorandum of appeal within 60 days as required by Rule 83 of the Judicature (Court of Appeal Rules) Directions, rendering the appeal incompetent. They argued that the necessary proceedings were available on ECCMIS since September 2023, and the applicants’ delay was deliberate, citing Ruth Asiimwe Kanyarufu v. Hon. Namara Grace and Wanyaka Samuel Hexley v. Uganda IGG.

The Respondent asserted that the appeal lacks merit, as the trial judge’s ruling was based on the absence of the respondent during the Consent Decree’s endorsement and the lack of a certificate of translation, facts conceded by the applicants. They relied on Junaco (T) Ltd v. DFCU Bank Ltd to argue that the appeal has no realistic chance of success.

The Respondent disputed the applicants’ claim of special circumstances, noting that the UGX 100,000,000 payment was made to MMAKS Nominees Ltd, not a party to the Consent Decree, and is the subject of a separate suit (HCCS No. 885 of 2023). They argued that the applicants’ claims can be resolved in the main suit or the separate suit, negating the need for a stay.

Court’s Findings

The court acknowledged the late filing of the applicants’ affidavit in rejoinder (almost two months after the respondent’s affidavit in reply) and written submissions (eight days late and exceeding the page limit). However, invoking Section 98 of the Civil Procedure Act, the court exercised its discretion to consider these documents in the interest of justice, as the delay was not as prolonged as in Stop and See (U) Ltd. The applicants were ordered to pay costs for non-compliance.

The court confirmed that the applicants filed a properly endorsed Notice of Appeal on November 16, 2023, satisfying Rule 76 of the Judicature (Court of Appeal Rules) Directions.

The court found that the applicants failed to file a memorandum of appeal within 60 days of the Notice of Appeal, as mandated by Rule 83.

The court emphasized that under Rule 83, an appeal is instituted by lodging:

A memorandum of appeal,
A record of appeal,
The prescribed fees, and
Security for costs —

all within 60 days of the Notice of Appeal. The court stressed that use of the word “shall” makes compliance mandatory.

While the applicants argued they could not prepare their record of appeal due to unavailability of certified proceedings, the court observed that all proceedings, pleadings, and the ruling were uploaded to ECCMIS by November 2023. Counsel could have compiled and certified them in time.

Their failure to do so was deemed dilatory conduct, rendering the appeal incompetent and presumed withdrawn under Rule 84.

The Court observed that;

The mere filing of a Notice of Appeal does not constitute a competent appeal. By failing to file the memorandum and record of appeal within the statutory 60 days, the appeal was deemed withdrawn under Rule 84. The court described counsel’s conduct as dilatory and inexcusable.

As no memorandum of appeal was filed, the court could not assess the likelihood of success. The intended grounds, challenging the trial judge’s findings on the Consent Decree, were not formally before the Court of Appeal, rendering this condition unmet.

The applicants argued that refusal to grant a stay would allow the respondent to benefit from the UGX 100M payment without refund and that the issues could only be conclusively resolved by the Court of Appeal.

The court rejected this, finding:

Refund issues were deferred for resolution in HCCS No. 3037 of 2016 (main suit).
Related disputes were already pending before Hon. Lady Justice Olive Kazaarwe in HCCS No. 885 of 2023, with hearing fixed for March 2025.
Granting a stay would stifle the main suit and prevent the trial court from fully resolving contested issues on the merits.

Holding

The court dismissed Miscellaneous Application No. 0442 of 2024, finding that the applicants failed to satisfy the criteria for a stay of proceedings.

Specifically:

While a competent Notice of Appeal was filed, the appeal itself was incompetent due to the failure to file a memorandum of appeal within the prescribed time.
The lack of a formal appeal prevented assessment of its arguability or likelihood of success.
No exceptional circumstances were established, as the applicants’ claims could be resolved in the main suit or the related HCCS No. 885 of 2023.

Orders

The application for a stay of proceedings in Civil Suit No. 3037 of 2016 was dismissed.
Costs were awarded to the respondent.

Key Principles

A stay of proceedings is a discretionary order to halt litigation to prevent undue prejudice or abuse of process, exercised sparingly and only in exceptional circumstances (Halsbury’s Laws of England, 4th Ed., para. 437; Uganda Revenue Authority v. John Imaniraguha).
Criteria for Stay:
- A competent notice of appeal must be filed and endorsed per Rule 76 of the Judicature (Court of Appeal Rules) Directions.
- A valid appeal requires filing a memorandum of appeal within 60 days of the notice, failing which the appeal is deemed withdrawn under Rule 84 (Ruth Asiimwe Kanyarufu v. Hon. Namara Grace).
- The appeal must be arguable, with a realistic chance of success, not merely possible (Junaco (T) Ltd v. DFCU Bank Ltd; Silverstein v. Chesoni).
- Special circumstances must demonstrate potential injustice or irreparable harm if the stay is not granted (Turbo Highway Eldoret Ltd v. Muniu).
Late filings of affidavits or submissions require leave of court, but courts may exercise discretion under Section 98 of the Civil Procedure Act to consider them in the interest of justice, with costs imposed for non-compliance (Stop and See (U) Ltd v. Tropical Africa Bank Ltd).
Consent decrees involving illiterate parties require proof of understanding, such as a certificate of translation, to be valid, and courts will scrutinize compliance to protect vulnerable parties.

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