“Illiterates often lack familiarity with legal procedures Our court system remains the only safeguard.” High Court at Kabale Allows Enlargement of Time for Filing Appeal Despite Five-Year Delay

Waboga David
Nov 14
6 min read

FACTS

The Applicants sought enlargement of time within which to file an appeal against the judgment and decree of the Chief Magistrate’s Court of Kisoro delivered on 23 October 2020.

The lower court ruled in favor of the respondent (plaintiff), declaring him the rightful owner of the disputed land, finding the applicants liable for trespass, and granting:

General damages of UGX 3,000,000/=.
An order for vacant possession.
A permanent injunction restraining the applicants from further interference with the land.

The applicants, who were illiterate and initially self-represented, filed a notice of appeal and requested typed proceedings shortly after the judgment but failed to serve these on the respondent.

They attributed the subsequent delay, spanning nearly five years, to factors beyond their control, including the delayed extraction of the decree (which occurred only on August 29, 2025) and the unavailability of certified copies of the judgment and record of proceedings.

No draft memorandum of appeal was initially filed with the application, prompting opposition. The application was lodged under Sections 98 and 79(1)(b) and (2) of the Civil Procedure Act, Cap. 71, and Order 51 Rules 1, 2, and 6 of the Civil Procedure Rules, S.I. 71-1.

The Respondent opposed the application, citing:

Inordinate delay,
Failure to attach a draft memorandum of appeal, and
Attempts to frustrate taxation proceedings.

ISSUES

The Court identified two issues for determination:

Whether the court has good cause to admit an appeal notwithstanding the expiry of the prescribed limitation period under Section 79(1)(a) of the Civil Procedure Act.
What orders should issue?

SUBMISSIONS

Applicants’ Submissions

The Applicants emphasized their illiteracy and lack of legal representation at the trial stage, leading to procedural errors such as filing a notice of appeal (instead of a memorandum) and failing to serve documents.

They argued the delay was excusable as it stemmed from external factors: the court's delay in providing typed and certified records, and the late extraction of the decree in August 2025.

They contended that granting the application would cause no prejudice to the respondent, as the appeal raised arguable grounds on law and fact (e.g., points of ownership and trespass).

Furthermore, upon the court's prompting at the oral hearing on October 7, 2025, counsel for the applicants filed a draft memorandum of appeal, highlighting "reasoned disagreements" with the lower court's findings.

They acknowledged the "long and unusual" delay but urged the court to exercise mercy in favor of substantive justice.

Respondent’s Submissions

Counsel for the Respondent Opposed the application on the basis of procedural non-compliance, particularly the absence of a draft memorandum of appeal at filing, rendering the application defective under Order 51 Rule 1 of the Civil Procedure Rules.

He highlighted the inordinate delay: nearly five years from the 2020 judgment to the 2025 decree extraction, attributing it to the applicants' negligence rather than external causes.

Further asserted that self-representation or illiteracy does not constitute "good cause," and the application appeared designed to frustrate ongoing taxation proceedings in the lower court.

Lastly, they argued that appeals should not be extended as a matter of course, emphasizing the need for sufficient, case-specific reasons tied to the delay.

LEGAL REPRESENTATION

Applicants, M/S Kodili & Co. Advocates
Respondent, M/S Bikangiso & Co. Advocates

COURT’S ANALYSIS AND FINDINGS

1. Whether Good Cause Was Shown for Enlargement of Time

The Court began its analysis by examining the statutory framework governing the commencement of appeals to the High Court. Section 79(1)(a) of the Civil Procedure Act requires that every appeal be lodged within thirty days of the decree or order.

However, Section 79(1)(b) grants the appellate court discretion to admit an appeal out of time “for good cause.” Under Section 79(2), time required to obtain certified copies of the judgment, decree, and proceedings must be excluded from the computation of the limitation period.

The Court emphasized that appeals to the High Court must be initiated by a memorandum of appeal, as required under Order XLIII Rules 1 and 2 of the Civil Procedure Rules. The Court described this requirement as mandatory, stating:

“Every appeal to the High Court shall be preferred in the form of a memorandum signed by the appellant or his or her advocate.”

Meaning of “Good Cause”

The Court relied on established jurisprudence to interpret “good cause,” drawing from Saeh Mugadya v URA, Misc. Application No. 1056 of 2025, Tiberio Okeny & Another v Attorney General & 2 Others, C.A. No. 51 of 2001, and Ojara Otto Julius v Okwera Benson, H.C. M.A No. 023 of 2017.

Quoting Odongo J. in Saeh Mugadya, the Court reiterated:

“What constitutes ‘sufficient cause’ is not a fixed standard; it is always dependent on the unique facts and circumstances of each case; and the court’s discretion plays a crucial role in determining its adequacy.”

From Tiberio Okeny, the Court highlighted that:

Applicants must show a reason explaining failure to act within time.
Justice requires that disputes be determined on their merits.
Mistakes of counsel may amount to sufficient cause only where they constitute an error of judgment, not prolonged negligence.

The Court also cited Ojara Otto, reaffirming that enlargement of time “should not be granted as a matter of course” and that the Court must carefully scrutinize the applicant’s conduct.

The Court noted that although the Applicants’ delay—almost six years—was “extraordinarily long,” several factors weighed in their favour:

The Applicants had filed a notice of appeal and requested typed proceedings, demonstrating an intention to challenge the lower court’s decision, despite procedural ignorance and illiteracy.
The decree was only extracted on 29 August 2025, and the Respondent offered no explanation for failing to extract it earlier. Under Section 79(2), delays in preparing or obtaining certified documents must be excluded from computation of the limitation period. Therefore, the 30-day appeal window effectively began to run from that date.
The Applicants eventually filed a draft memorandum raising arguable points of law and fact. The Court stated:

“I reluctantly find that sufficient cause has been made… The applicant has made an application with a draft memorandum of appeal, with arguable grounds within a reasonable time of getting the certified record of proceedings.”

The Respondent argued that the application aimed to frustrate taxation. The Court rejected this:

“I cannot agree. An appeal to the High Court does not operate as a stay of proceedings… a stay is not automatic.”

Broader Observations on Access to Justice

The Court expressed systemic concerns regarding access to justice for unrepresented and illiterate litigants:

“Illiterates often lack familiarity with legal procedures… Our court system remains a safeguard in protecting the rule of law.”

The Court emphasized the persistent challenge of balancing procedural rigor with the imperatives of substantive justice, especially for illiterate or unrepresented litigants unfamiliar with appellate procedures. Noting that only about 5% of disputes reach the courts, though the number is increasing, the Court observed that such litigants often inadvertently initiate appeals incorrectly, as seen where the Applicants filed a notice of appeal instead of a memorandum.

A similar procedural inversion had arisen in Frank Ngabirano v Uganda, Criminal Appeal No. 1 of 2025, where the appellant filed a memorandum instead of a notice of appeal and took no steps to rectify the error.

The Court reiterated that in applications for enlargement of time, the decisive consideration is whether the litigant has taken affirmative steps to correct procedural mistakes and actively pursue their rights. Courts must assess whether parties or their advocates have demonstrated diligence in curing defects.

Ultimately, the Court underscored that the judicial system exists to safeguard the rule of law and prevent conflicts, especially in land matters within the Kabale circuit, and must therefore remain flexible where necessary to ensure access to justice without compromising procedural integrity.

HOLDING

Having considered the evidence, the statutory framework, and the principles governing sufficient cause, the Court held as follows:

The application for enlargement of time is allowed.Good cause was established under Section 79(1)(b) of the Civil Procedure Act.
The Applicants shall file and serve a proper memorandum of appeal within seven (7) days from the date of the ruling.
Taxation proceedings in the lower court are not stayed. An appeal does not automatically operate as a stay.
Costs shall be in the cause.

KEY TAKEAWAYS

Access to Justice
Courts remain accommodative where litigants, especially the illiterate, demonstrate honest procedural mistakes.
Memorandum of Appeal is Mandatory
A notice of appeal is insufficient for civil appeals to the High Court.
Delay Must Be Justified
Even an extraordinary delay (nearly six years) can be excused if a compelling explanation exists, especially relating to the extraction of the decree and obtaining certified proceedings.
Appeals Do Not Automatically Stay Proceedings
Taxation or execution continues unless a stay is specifically sought and granted.
Court Will Balance Procedure and Substantive Justice
The ruling emphasizes that the goal is to determine disputes on their merits rather than shut out litigants on procedural lapse.
Counsel’s Errors May Amount to Sufficient Cause
If mistakes are not due to negligence but honest misapprehension.
Parties Must Take Affirmative Steps
Filing a draft memorandum was critical in showing the seriousness and arguability of the intended appeal.