IN THE HIGH COURT OF UGANDA
HOLDEN AT MBALE
(FROM HCCA NO. 0090 OF 2009)
OLUKA MATIYA SULAIMAN ……………..………………APPLICANT
BEFORE: THE HON. MR. JUSTICE MUSOTA STEPHEN
Notice of Motion under s.98 of the Civil Procedure Act (CPA) O.5 r.6 and O.52 rr 1, 2 and 3 of the Civil Procedure Rules (CPR) for orders that
Costs of the application be provided for.
The applicant obtained the record of proceedings and judgment after the time for filing the memorandum of appeal had expired.
The interest of justice demand that court extends time to enable the applicant file his memorandum of appeal.
respondent and was struck out under O.7 r.11 (a) and (e) of the CPR for disclosing a no cause of action.
Mr. Dagira for the respondent raised two preliminary objections and urged that this application is misconceived and incompetent. That it should be struck out with costs
not expressly provide a procedure. That it also applies where the proceedings have in the first instance been brought before court
in a proper way in terms of procedure prescribed by the CPR. That a party to a dispute cannot ordinarily invoke the inherent jurisdiction
of the court under S.98 if another remedy is available.
Order 51 r.6 CPR applies to time fixed by the Civil Procedure Rules and by order of Court only but not to admission of appeals out
of time. That the proper section to have been invoked by the applicant to have his appeal out of time is S.79 (1) of the CPA. That
this section allows an appeal to be filed within 30 days and if that is not done, then the appellate court has power to admit an
appeal out of time if good cause is shown.
or exclude the court’s inherent jurisdiction under S.98 of the Civil Procedure Act which gives residual powers to the court
to prevent or correct any injustice.
to time fixed by the CPR and orders of court only and not to admission of appeals out of time. That Civil Procedure Rules are applicable
in all civil matters before the High Court and O.51 r.6 CPR is the enabling provision and procedure to invoke in applications of
extension of time to do any act or take any proceedings before the High Court. Finally that Ss 79 (1) and 79 (3) CPA only state the
position of the law but are not enabling provisions stipulating the proper procedure to be invoked.
Within seven days of the date of the order of a 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.
of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded.”
See ALCON INTERNATIONAL LTD V. KASIRYE B. BYARUHANGA CO. ADVOCATES 1996 HCB 61.
express remedy is available AHAMED HASSAN MULJI V. SHIRIMBAL JADAVJ  EA 217.
the applicant for parading S.68 CPA first as if it is the primary basis under which this application was brought. The practice has
been that this section is cited last after the principle provisions of the law applicable have been listed. It would be better to refer to the said section last.
and I agree, in STANDARD CHARTERED BANK OF UGANDA V. BEN KAVUYA & BARCLAYS BANK (2006) 1 HCB 134 that:
inherent jurisdiction under S.98 of the Civil Procedure Act which gives undue residual powers to the court to prevent or correct
respondents. It would be so if a lazy lawyer brought the application solely under S.98 CPA yet enabling laws do exist.
to admit his appeal out of time is S.79 (1) of the CPA (ibid). The said law empowers an appellate court for good cause to admit an
appeal though the period of limitation prescribed by the Act has elapsed.
is incompetent and misconceived for having been brought under S.98 of the CPA and O.51 r.6 CPR instead of s.79 (1) of the CPA and O.52 r.1 CPR.
It is struck out with costs.
Both parties in court.
Madaba for Applicant.
Dagira for Respondent.
Matter for ruling.