CHAPTER NINETEEN

APPEALS, REVIEW AND REVISION

Introduction

One of the aims of all adjudication systems should be perfection in decision-making, and judges strive for
this. But the right of appeal represents an acknowledgment of the fallibility of judge’s decision and an
assumption that within the hierarchy of the courts, judges in the higher courts are more likely to be right,
particularly where the law is concerned, than their counter parts in lower courts. In a broader sense, the
right of appeal in our system reveals a conflict between the principle of the finality of judicial decisions
and the demands of justice, which require a process for the correction of incorrect decisions.

An appeal refers to a proceeding taken to rectify an erroneous decision of a court by bringing it before a
higher court. The appellate process is a grim reminder that courts too make mistakes, some more serious
than others, and in many cases, justice cannot be assured by attending only one court. So it is in the
pursuit of justice that higher courts with more personnel, with more experience should sanction and
criticize, and in many cases overturn decisions of their junior colleagues where they are persuaded that
justice has been compromised.

Questions as to the possibility and/or the desirability of appealing may arise during the interlocutory
stages of an action or after trial and judgment. An appeal is an application to set aside or vary the
decision of another tribunal/court on the ground that it was wrongly made. There is no right of appeal
against judgment or order of court of a competent jurisdiction unless a statute expressly so provides.

Appellate Jurisdiction

In general the right of appeal must be given by an Act of Parliament although there are situations where
an appeal is as of right. In other cases especially from interlocutory matters appeals lie usually only by
leave of the court.

While it is accepted that the provisions conferring appellate jurisdiction should not be construed in a
restrictive manner but rather in the most liberal manner, never the less a court can only exercise appellate
jurisdiction where that jurisdiction is given by Statute. There is no such thing as inherent appellate
jurisdiction. Any party who seeks to avail himself/herself of the right of appeal must strictly comply with
the conditions prescribed by the statute1.

No appeal shall lie from a decree passed by court with consent of the parties. 2

Appellate Courts

Supreme Court

The Supreme Court Shall be the highest appellate court and final Court of Appeal in civil matters. 3
An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed
by law.4Under S.6 an Appeal shall lie as of right to the Supreme Court where the Court of Appeal
confirms, varies or reverses a judgement or order, including an interlocutory order, given by the High
1
Harnam Singh Bhogal trading as Harnam Singh and Co.vs Jadva Karsan (1953) 20 EACA 17 at 18
2
S.67 (2) Civil Procedure Act Afric Co-operative Society vs Uganda Railway Corporation [2002] EA 1
3
Article 132(1) The Constitution
4
Article 132 (2) Constitution
Court in the exercise of its original jurisdiction and either confirmed, varied or reversed by the Court of
Appeal.5

Where an appeal emanates from a judgement or order of a chief magistrate or magistrate grade 1 in the
exercise of his/her original jurisdiction, but not including an interlocutory matter, a party aggrieved may
lodge a third appeal to the supreme court on the certificate of the Court of Appeal that the appeal concerns
a matter of law of great public or general importance, or if the Supreme Court considers, in its overall
duty to see that justice is done, that the appeal should be heard. 6

Court of Appeal

An appeal shall lie to the Court of Appeal from such decisions of the High Court as may be prescribed by
law.7

An appeal shall lie to the Court of Appeal from such decisions of the high Court prescribed by the
Constitution, this Act or any other law.8

An appeal shall be from the decrees or any part of decrees and from orders of the High Court to the Court
of Appeal.9

High Court

The high Court equally has such appellate jurisdiction as prescribed by any law. 10

The High Court has an appellate jurisdiction to determine appeals which lie to it by virtue of any
enactment from decisions of Magistrate’s Courts and other subordinate courts. 11

An appeal shall lie from the decrees or any part of the decrees and from the orders of a magistrate’s court
presided over by a chief magistrate or a magistrate grade 1 in the exercise of its original civil jurisdiction
or appellate jurisdiction with leave to the High Court.12

Any person aggrieved by any order of a registrar may appeal from the order to the High Court and the
appeal shall be by Notice of motion.13

Any person affected by an order or decision of a taxing officer may appeal within thirty days to a judge of
the High Court who on such appeal may make any order that the taxing officer might have made. 14

An appeal shall lie from decrees and orders made on appeal by a chief magistrate, with the leave of the
Chief Magistrate or of the High Court to the High Court.15

5
S.6 (1) of Judicature Act
6
S.6 (2) ibid
7
Article 134 (2) Constitution
8
S.10 Judicature Act
9
S.66 o f Civil Procedure Act
10
Article 139 (1) Constitution, S.14 (1) Judicature Act
11
S. 16 Judicature Act
12
S.220 (1)(a)(c) Magistrate’s Courts Act
13
O.50 r 8
14
S.60 Advocates Act see also S.20 of Advocates Act
15
S.32 (2)(d) Local Council Courts Act 13 of 2006
A person aggrieved by the determination of a lower court on hearing an election petition may appeal to
the High Court or of Court of appeal against the verdict.16

Chief Magistrate Court

An appeal shall lie from the decisions, judgements and orders of a magistrate’s court, whether
interlocutory or final presided by a magistrate grade II or III, to a court presided over by a chief
magistrate.17

An appeal shall lie from the judgement or orders of a town, division or sub county local council court to a
court presided over by a Chief Magistrate.18

LEAVE TO APPEAL

An appeal is a creature of a statute and where there is no such a right, then an appeal shall be by leave of
the court.

An appeal under the Civil Procedure Rules shall not lie from any other order save with leave of the court
making the order or of the court to which an appeal would lie, if leave were given. 19

It is necessary, when considering the scope and value of this hurdle of leave to appeal, to be aware of the
importance of a right to appeal and its worth to the legal system.

According to Jacob,20the appeal right is necessary;

(a) to produce a just result in a particular case;

(b) to compel judges to be judicial, reasonable and to apply the law and not to be arbitrary;

(c) to provide a powerful corrective to any sense of grievance by the loser at first instance; and

(d) in a system applying the binding character of judicial precedent, to build up a uniform system of
the law.

So far as achieving a just result is concerned, a right of appeal can perhaps, achieve, is the avoidance of a
legal ‘injustice’ in other words, it can ensure that the law is interpreted and preferably also applied
correctly.

The quality of justice, which is the tough stone of a civilized society, depends in large measure on the
arrangements provided for its due administration. Accordingly, it is appropriate to consider rights of
appeal and indeed, leave to appeal, in terms of the 'justice' within a system.

According to Spry J. leave to appeal from an order in civil proceedings will normally be granted where
prima facie it appears that there are grounds of appeal which merit serious judicial consideration. 21
16
S.145 Local Government Act
17
S.220 (1)(b) Magistrate’s Courts Act
18
S.32 (2)(c) Local Council Courts Act
19
O.44 r 1 Appeals lie as of right from orders under S.76 and O.44 r 1
20
Pg 85 Sir J. Jacob, The Reform of Civil Procedural Law London, Sweet and Maxwell, 1982
21
Sango Bay Estates Ltd. vs. Dresdner Bank A.G. [1971] EA 17
Leave to appeal to the High Court from Magistrate’s Court 22can only be granted where the decision
intended to be appealed from involves a substantial question of law or has caused or is likely to cause
substantial miscarriage of justice.23

Appealing against a refusal of leave

In extremely limited circumstances, it is possible to appeal against a refusal of leave the appeal. It is
entirely possible, for example, that they might find themselves having to obtain leave before they can
appeal against a refusal of leave.

The circumstances in which leave should be granted have not been defined. This is a matter left to the
discretion of the courts. In fact the judges have provided few clues, but it is known that leave is
considered desirable where a case involves … “a question of importance upon which further argument
and a decision of the Court of Appeal would be to the public advantage.” 24 If the Court of Appeal refuses
leave there can be no appeal against this decision unless it was denied on a basis of question law.

In conclusion, there are few opportunities for appealing against a refusal of leave to appeal in civil cases
because the courts regard such opportunities as burdensome and contrary to the principle of finality.
Furthermore reasons for refusals of leave are rarely given, it thus becomes rather difficult, if not
impossible to challenge the lower court’s reasoning.

Justification for the leave requirement

The main aim of the leave requirement, as the courts see it is “to prevent frivolous and needless appeals.”

It is doing the potential litigant a service to refuse him leave to appeal, if his appeal is clearly doomed to
fail. This fetter on appeals helps to keep the administration of justice tidy. It is used purely as an
administrative protection to limit the number of appeals. However, it would be highly undesirable if
administrative convenience interfered with the judicial system.

In appeal cases where leave is refused, ‘injustices’ may be suffered by litigants unconcerned about
whether their case has any social or legal significance. But this appears to be the price that has to be paid
given the restraints under which our legal system tends to operate.

Procedure

An application for leave to appeal shall be by motion on notice.25

The party applying for leave has in the first instance the choice, whether to apply informally at the time of
delivery of judgment or order or making a formal application letter. 26

22
S.220 (1)(c) Magistrate’s Court Act
23
Nangwe vs. Kuluma & Another HC Misc. Cause No.1 of 1988
24
Buckle vs. Holmes [1926] 2 KB 125 at 127
25
O.44 r 4
26
G. M Combined (U) Ltd. vs. A.K. Detergents (U) Ltd. SCC App. No.23 of 1994 (unreported)
The effect of failure to obtain leave of court where it is required will result in striking out of the
appeal,27and the appeal is incompetent once leave is required and is not obtained. 28

Appeals on matters of judicial discretion

Whenever a decision is based on the exercise of discretion of a judge, such a decision will not be reversed
merely because the appeal judges would have exercised the discretion differently if they had been
presiding in the court below. If on the other hand, the appellate court finds that the trial judge has erred in
principle or has taken into account irrelevant factors, or has omitted factors, which are material, his
decision may have to be reversed.29

When a decision against the exercise of discretion on an interlocutory matter is appealed against, the
appellate court must not substitute its own ‘discretion’ for that of the judge. 30

The function of the court in interlocutory appeals is ‘primarily a reviewing function’ and the judge’s
decision should be reversed only in cases;

1. Where the appeal court is satisfied that the trial judge has erred in principle;

2. In order to promote consistency in the exercise of their discretion by judges as a whole where
there appear, in closely comparable circumstances, to be two conflicting schools of judicial
opinion as to the relative weight to be given to particular consideration. 31

The court cannot be bound by a previous decision to exercise its discretion in a particular way because it
would be in effect putting an end to the discretion. Discretion necessarily involves latitude of individual
choice according to the particular circumstances, and differs from a case where the decision follows ex-
debito justitiae once the facts are known.32

Discretion in Interlocutory Matters

As the majority of interlocutory matters are decided in the exercise of Registrars’ and Judges’ discretion,
it is basic principle that a court of appeal will not interfere by substituting its own exercise of discretion
unless it is shown that the court/judge below:

(a) Failed to exercise any discretion at all, or exercised it in a way in which no reasonable judge
would have exercised it; or

(b) Erred in principle or in law; or

(c) Took irrelevant matters into account; or

(d) Misinterpreted the facts or evidence.33

27
Rule 82 Court of Appeal Rules
28
Makhangu vs Kibwana [1995-98] 1 EA 175
29
Mbogo vs Shah [1968] EA 93 Ward vs. James [1966] QB 279 at 293
30
Clouds 10 Ltd. vs. Standard Chartered Bank (U) Ltd. SCCA 35 of 1992 (unreported)
31
Burkett vs. James [1978] AC 297 at 317
32
National Enterprise Corporation vs. Mukisa CACA No.42 of 1997 (unreported)
33
Supreme Court Practice 1995 5/1/56
Time for appealing

The time for appeal begins to run when judgement or ruling is delivered. A notice of appeal must be filed
within fourteen days after the date of the decision which is desired to appeal. 34

Except as otherwise specifically provided in any other law, every appeal shall be entered;

(a) Within thirty days of the date of the decree or order of the court.

(b) Within seven days of the date of the order of a registrar.35

Appeals with leave – notice of appeal must be filed and served within 14 days from the date of granting
of leave.

An appeal shall be instituted in the court by lodging in the registry, within sixty days after the date when
the notice of appeal was lodged. 36 Where an application for a copy of the proceedings has been made to
the High Court the period for the preparation and delivery of the proceedings shall be excluded in
computation of the sixty days.37

Application for extension of time

Where any period is fixed by the court for doing of any act prescribed or allowed, the court may in its
discretion from time to time enlarge such period, even though originally fixed or granted may have
expired.38The party who seeks indulgence of court to extend the time must be diligent in applying for it
expeditiously and without undue delay.39

The court may for sufficient reason extend the time limited to do any act. 40 Normally sufficient reason for
an extension of time must relate to the inability or failure to take the particular step. 41 The applicant for
extension of time has the burden of proving to court satisfaction that for sufficient reason it was not
possible for the appeal to be lodged in the time prescribed. 42 The discretion to grant an extension of time
can be allowed in order for the appeal to be heard on its merits so that the dispute could be settled. The
discretion must however be exercised judicially on proper analysis of the facts and the proper application
of the law to the facts.43

The court should not interfere with the discretion of a judge unless it is clear that he misdirected himself
in some matter and as a result arrived at a wrong decision or unless it was manifested from the case as a
whole that the judge was clearly wrong in the exercise of his discretion and that there has been injustice. 44

34
Rule 76 (2) The Judicature (Court of Appeal Rules) Rule 72(2) The Judicature (Supreme Court Rules)
35
S.79 (1) Civil Procedure Act Hajji Mohamed Nyanzi vs. Ali Segane [1992-93] HCB 218
36
Rule 83 (1) &79(1) Court of Appeal rules & Supreme Court Rules
37
Rule 83 (2) &79(2) Court of Appeal rules & Supreme Court Rules
38
S.96 Civil Procedure Act
39
Priscilla Wambi Mischek vs Samuel Thata & Others East African Court of Appeal C.A No.30 of 1976
40
Rule 5 Court of Appeal Rules & Supreme Court Rules
41
Mugo and Others vs. Wanjiru [1970] EA 481
42
Devshi vs. Diamond Concrete Co. [1974] EA 493
43
J. Hannington Wasswa vs. M. Onyango Ochola [1992-1993] HCB 103 (SC)
44
Ibid
An application for extension of time is usually before a full bench of appellate Court. However under the
new practice direction, an application for extension of time is now before the Registrar. 45It is wrong to
make an application for extension of time orally and before a full bench after the application to strike out
the notice of appeal had been filed.46

Some of the grounds for extension of time may include;

1. Delay through counsel’s absence47;

2. Delay in obtaining court proceedings, which are subject of an intended appeal. 48
3. Lack of stationery to prepare record.49
4. A mistake by counsel.50

That an applicant cannot rely on Rule 83(2) for extension of time unless a copy of the letter requesting for
the record of proceedings was served on the respondent. The purpose of this rule is to show that the
appellant was earnest in his intention to delaying the execution of the decree. 51

Who may appeal

Any person who was a party to the action in the court below may, if the case is one for appealing within
the rules appeal. Sometimes persons who were not parties in court below may be aggrieved by the
judgment, and such persons may appeal with leave of the court which is to hear the appeal.

NOTICE OF APPEAL

A notice of appeal is the first document that must be filed in an appeal. An appeal is brought by way of
notice of appeal.

Every notice of appeal shall state whether it is intended to appeal against the whole or part only of the
decision; and where it is intended to appeal against a part only of the decision, it shall specify the part
complained of, state the address for service of the appellant and state the names and addresses of all the
persons intended to be served with copies of the notice.52

A notice of appeal shall be substantially in the Form D in the schedule to these rules and shall be signed
by on behalf of the appellant.53A purported notice of appeal without an endorsement as to date and time of
lodging a document by a registrar is a nullity and cannot initiate a valid appeal. 54

An intended appellant shall, before or within seven days after lodging notice of appeal, serve copies of it
on all persons directly affected by the appeal. 55 Any failure to serve a notice of appeal within the time

45
Practice Direction No1 of 2004Court of Appeal(Judicial Powers of Registrars)Practice Direction.
46
Sewan Singh Bahra vs Halling Manzoor C.A.C.A No.27 of 1999 [1998-2000] HCB 37
47
Shiv Construction Co. Ltd. vs. Endesha Enterprises Application SCCA App. No.15/92 (unreported)
48
Delia Almeida vs. C. Almeida SCCA No.15 of 1990 (unreported)
49
A.G. vs. M Heida SCCA No.5 of 1988 (unreported)
50
Gurdial Singh Dhillion vs. Sham Kaur [1960] EA 795
51
Kasirye, Baruhanga & Co. Advocates vs. U.D.B. SCCA No.2 of 1997 (unreported)
52
Rule 76 (3)
53
Rule 76 (5.
54
Gaba Beach Hotel Ltd vs Cairo International Bank Ltd CACApp. No.34 of 2003
55
Rule 78 Court of Appeal Rules
required renders an appeal incompetent 56 and it is the duty of the appellant to prove that he/she had
effected valid service on them. 57If service is not done within a prescribed period, then a party may seek
leave to serve the notice out of time.58

Figure 1NOTICE OF APPEAL

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

XYZ ……………………………………. APPELLANT

VERSUS
ABC …………………………………………… RESPONDENT

NOTICE OF APPEAL

TAKE NOTICE that XYZ the Appellant being dissatisfied with the decision by Honourable Justices of
Appeal Hon. Mr. Justice C.M Kato J.A., Hon. Mr. Justice J.P. Berko J.A. and Hon. Mr. Justice A.
Twinomujuni given at Kampala on the 5 th January, 2001 intends to appeal to the Supreme Court of
Uganda against the whole of the said decision.

The address of service of the appellant is c/o NKM Advocates Plot 38, William Street, P.O. Box 7699,
Kampala.

It is intended to serve copies of this notice on:-

DEF Advocates
Plot 7 Parliament Avenue
1st Floor Bauman House
P O Box 4237
KAMPALA
(Counsel for the Respondent)

Dated at Kampala this ……… day of …………………. 2001.

Signed by

______________________________________________
NKM ADVOCATES
COUNSEL FOR THE APPELLANT

To: The Registrar

Court of Appeal
56
East and Southern African Development Bank(PTA) vs Concorp International Ltd CACApp No.78 of 2001 Francis
Nansio Micah vs Nuwa Walakira SCCA No.24 of 1994
57
Gaba Beach Hotel Ltd vs Cairo International Bank Ltd CACApp. No.34 of 2003 Horizon Coaches vs Francis
Mutabazi and 3 others SCCA No.20 of 2001
58
Afric Co-operative Society vs Uganda Railways Corporation [2002] EA 1
 Kampala

Lodged in the Court of Appeal at Kampala this ………….day of ………………… 2001.

……………………………………….
REGISTRAR

DRAWN AND FILED BY:

NKM ADVOCATES
PLOT 38, WILLIAM STREET
P.O. BOX 7699
KAMPALA

MEMORANDUM OF APPEAL

A memorandum of appeal shall set forth concisely and under distinct heads, without argument or
narrative, the grounds of objection to the decision appealed against, specifying the points which are
alleged to have been wrongly decided, and nature of the order which it is proposed to ask the court to
make.59A memorandum of appeal must be lodged within sixty days.60

The appellant shall, before or within seven days after lodging memorandum of appeal and the record of
appeal in the registry, serve copies of them on each respondent who has complied with the rules. 61

Figure 2Copy of MEMORANDUM OF APPEAL

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL AT KAMPALA
CIVIL APPEAL NO………… OF 2001

(Appeal from the Judgment/Decree of the High Court of Uganda before the Honourable Lady Justice S.B.
Bossa (Mrs) dated 25th February, 2000 arising in HCCS No.244 of 1992)

BETWEEN
ABC …………………………………………….APPELLANT
59
O.43 r 1,Rule 86 (1) &Rule 82(1) Court of Appeal rules & Supreme Court Rules
60
Rule 83 Court of Appeal Rules
61
Rule 88 Court of Appeal Rules
 VERSUS
1. XYZ
2. VH Co. LTD. ……………………………..RESPONDENTS

(Appeal from the Judgment/Decree of the High Court of Uganda before the Honourable Lady Justice S.B.
Bossa (Mrs) dated 25th February, 2000 arising in HCCS No.244 of 1992)

MEMORANDUM OF APPEAL

ABC the above named appellant appeals to the Court of Appeal against the whole of the above mentioned
decision on the following grounds:-

1. The Learned trial Judge erred in law and in fact when she proceeded to hear and determine the
suit on amended pleadings which were unlawfully and improperly before court.

2. The Learned trial Judge erred in law and fact when she granted reliefs to the 2 nd defendant that
had not been specifically claimed nor asked for.

3. The Learned trial Judge erred in law and fact when she wrongly attributed acts of fraud to the
Appellant and consequently held that he was not a bonafide purchaser for value (without notice).

4. The Learned trial judge erred in law and fact when she decided the sit on a new issue of estoppel
that was not before court by way of pleadings, evidence or submissions.

5. The Learned trial judge erred in law when she made findings and decided the appeal granting
reliefs to the respondent on the issue of the validity of the substitute title which was not before
court.

6. The Learned trial judge erred in law and fact when she erroneously attributed and/or visited the
irregularities in preparing the substitute title to the appellant and subsequently held that the
substitute title and all subsequent dealings on it were null and void.

7. The Learned trial judge erred in law and fact when in reaching her decision she engaged in
conjuncture and speculation thereby basing her decision on erroneous assumptions not supported
by the evidence on record.

IT IS PROPOSED to ask COURT for an ORDER that the JUDGMENT/DECREE of the High Court of
Uganda dated 25th February 2000 dismissing the appellant’s suit and granting reliefs and remedies to the
2nd respondent be set aside, AND INSTEAD SUBSTITUTION an order granting judgment to the
Appellant be made.

WHEREFORE the Appellant prays that this appeal be allowed with costs here and below.

Dated at Kampala this ……………. day of ………………………. 2001.

______________________________________________
NKM ADVOCATES
COUNSEL FOR THE APPELLANT
To: The Honourable
The Judges of the Court of Appeal
KAMPALA

Copies to be served on:

1. D.E. & Co. Advocates

17/19, Diamond Trust Building
P.O. Box 182
Kampala
Counsel for the Respondents

Lodged in the Court of Appeal Registry at Kampala on the ….. day of ……………… 2001 under my
Hand and Seal of this Court.

____________
REGISTRAR

Drawn and Filed By:

NKM ADVOCATES
PLOT 103, BUGANDA ROAD
P.O. BOX 7699
KAMPALA

RECORD OF APPEAL

Where a notice of appeal has been filed and served, the appellant must apply to the trial court requesting
for a record of the proceedings.62 An appellant shall not be entitled to rely on this sub rule unless his/her
application for the copy was in writing and a copy of it was served on the respondent, and the appellant
has retained proof of that service. 63 Where an application for a copy of the proceedings has been made,
the period with which an appeal must be instituted does not include the period taken by the registrar in
preparing the copy of the proceedings.64

Figure 3LETTER APPLYING FOR RECORD OF PROCEEDING

REF: NKM/CS/103

15th January, 2001

The Registrar

62
Rule 83(2) Court of Appeal Rules Plaxenda Sembatya vs. Tropical Africa Bank SCCA No.6 of 1987
63
Rule 83(3) Court of Appeal Rules East and Southern African Development Bank (PTA) vs Concorp International
Ltd CACApp No.78 of 2001 Francis Nansio Micah vs Nuwa Walakira SCCA No.24 of 1994
64
Ephraim Ongom vs. Francis Benega SCCA No. 10 of 1987 (unreported)
Court of Appeal of Uganda
KAMPALA

Your Honour,

RE: CIVIL APPEAL NO. 33 OF 2000

XYZ
VERSUS
ABC

We represent the applicant in the above case wherein judgment was delivered on 5 th January, 2001.

The appellant being dissatisfied with the judgment of the on. Mr. Justice C. M Kato, J.A., Hon. Mr.
Justice J.P. Berko, J.A., Hon. Mr. Justice A. Twinomujuni, J.A. and the orders therein wishes to appeal to
the Supreme Court of Uganda.

We therefore apply to be availed with the full record of proceedings and judgment before the Court of
Appeal.

Much obliged.

NKM ADVOCATES

c.c. The Registrar

Supreme Court
KAMPALA

c.c. BCD & Co. Advocates

P.O. Box 4237
KAMPALA

Where an appeal lies from High Court in its original jurisdiction, the record of appeal shall contain the
following documents:65

(a) An index of all documents in record with numbers of page;

(b) Addresses of service;
(c) Pleadings;
(d) The trial judge’s notes of the hearing;
(e) The transcript of any shorthand notes taken or any other notes recorded at the trial;
(f) The affidavits read and all documents put in evidence;
(g) The judgment or reasoned order;
(h) The order if any giving leave to appeal;
(i) Any other documents necessary for the proper determination of the appeal, including any
interlocutory proceedings which may be directly relevant.

Upon receipt of the record of appeal, the appellant is required to lodge his appeal within sixty days 66and
shall contain and fulfill the following;

65
Rule 87 (1) Court of Appeal Rules
66
Rule 83(1) Court of Appeal rules
(a) Memorandum of appeal
(b) The record of appeal
(c) The prescribed fee (court fees)
(d) Security for the costs of the appeal.

If the appellant fails to comply with the requirements, the respondent may apply to court to dismiss the
appeal for want of prosecution. An appellant whose appeal has been dismissed on this ground may apply
by notice of motion to have his appeal restored, and the court may, in its discretion, order restoration of
the appeal on such terms as it thinks fit.

An appellant who seeks an extension of time to file a record of appeal out of time must show good and
sufficient reason for the delay. It is the duty of the intending appellant to actively take the necessary steps
to prosecute the appeal. It is not the duty of the respondent or the court to do it for him. 67

Courts have often ruled that the discretion to extend time for filing a complete record of appeal will not be
exercised where good and sufficient reasons for the delay have not been shown to persuade court to
extend the time to give cogent reasons for the delay. The above principle has been expressed by Lord
uest68as follows:

“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time
during which some step in procedure requires to be taken, there must be some material on which the
court can exercise its discretion if the law were otherwise, a party in breach would have an
unqualified right to an extension of time which would defeat the purpose of the rules, which is to
provide a time table for the conduct of litigation.”

The above principle is compatible with the idea of fair play of justice that a judgment creditor should not
be prevented from enforcing its judgment by an appellant who fails to prosecute its appeal for no good
reason.

THE HEARING

An appeal is ‘by way of re-hearing’, or retrial. 69 This does not mean that the court will hear a fresh the
oral testimony of witnesses nor that it will exercise its own discretion unfettered by the discretion of the
court below. Rather, it means that the court is limited to inquiring whether there has been an error in the
court below and if so, ordering a new trial; instead, the court may review the case on the basis of the
evidence contained in the record and may make such order as the case may require. 70 It is the duty of the
first appellate court to consider and evaluate the evidence and come to its own conclusion. 71

The appellate court has power to admit fresh evidence not adduced in the court below, 72either by affidavit,
deposition, or oral examination, but will do so after proving;73

67
Mparo General Contractors Ltd vs Uganda National Examinations Board C.A.C.App No.82 of 2004 see also Utex
Industries Ltd vs Attorney General S.C.C.App No.52 of 1995 Ribeero vs Siqueira &Facho [1936] ALL.ER 916 Bhatt
vs Tejwant Singh [1962] EA 497 at 489
68
Ratman vs. Cumarasamy [1964] ALL ER 933 at 935
69
Selle vs. Associated Motor Boat Company [1968] EA 123
70
Sime S. A practical Approach to Civil Procedure (1994) LONDON Blackstone, P.522
71
Luwero Green Acres Ltd. vs. Marubeni Corporation SCCA No. 19 of 1995 (unreported)
72
Rule 30 Court of Appeal Rules
73
Ladd vs. Marshall [1954] 1 WLR 1489 at 1491
(a) that the evidence could not have been obtained with reasonable diligence for use at trial.

(b) the evidence must be such that, if given, it would probably have an important influence on the
result of the case, though it need not be decisive.

(c) The evidence must be such as is presumably to be believed, or in other words, it must be
apparently credible, though it need not be incontrovertible.

FINDINGS OF FACT

The appellate court is not bound to follow the trial judge’s findings of fact if it appears either that he
failed to take account of particular circumstances or probabilities or if the impression of the demeanor of
the witness is inconsistent with the evidence generally. 74 The court is under a duty to subject the entire
evidence on the record to an exhaustive scrutiny and to re-evaluate and make its own conclusion, while
bearing in mind the fact that the court never observed the witnesses under cross-examination so as to test
their veracity.75

The general principle is that whereas questions of law are argued afresh in an appellate court, there is no
presumption that the trial judge was correct, the finding of fact of the trial judge will not normally be
interfered with, as he will have had the advantage of seeing and hearing the witnesses giving evidence,
and will have been in position to assess their credibility – a function not available to the appellate court.
Accordingly, an appellate court should interfere only where the trial judge can be shown to have clearly
erred in reaching his/her conclusions of fact.

APPLICATI ONS FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE ON APPEAL

There must be sufficient reason to justify reception of additional evidence, whether or not to take
additional evidence is a matter entirely within the discretion of the appellate court. it is very rare that an
appellate court allows an appellant to adduce additional evidence in that court unless there are exceptional
grounds.76

A single judge of court of appeal has jurisdiction to hear an application for taking additional evidence on
appeal or an appeal.77

On the hearing of an appeal, it is generally open to the Court of Appeal to order a new trial. It may be
that the judge has not really decided the case at all or where a judgment has been obtained by fraud.

The Court of Appeal must be presented with solid grounds before it will exercise its discretion. 78 The
Court of Appeal is not bound to order a new trial unless “some substantial wrong or miscarriage” has
been occasioned by the matter complained of. These cases may include situations where;

1. The judge wrongly receiving or wrongly rejecting evidence;

2. The decision was against the weight of the evidence;
3. The fresh evidence has been newly discovered.
74
American Express International Banking Corp. vs. Atulkumar Patel CACA No.8 of 1986 (unreported)
Langdale vs. Danby [1982] 1 WLR 1123 at 1133, Selle vs. Associated Motor Boat Company Ltd. Supra n
75
Sanyu Lwanga Musoke vs. Galiwango SCCA No. 48/1995 (unreported)
76
Dharansy Mararji and Sons Ltd. vs. S.N. Kara SCCA No. 27 of 1996, Taylor vs. Taylor (1944) 11 EACA 46,
Dick vs. Koinage [1973] EA 165
77
Rohini Damji Sidpra vs. Vijendra & Others Rule 52 SCCA No.48 of 1996 (unreported)
78
Watt vs. Watt [1905] AC 115, Automatic Wood Turning Co. vs. Stringer [1975] AC 544
Also it may be that the judge or one of the advocates engaged in the case misconducted himself /herself to
such a degree that the trial has been wholly unsatisfactory. This was evidenced in a case in which a judge
had interfered so much in the examination and cross-examination of witnesses that counsel was unduly
hampered in the presentation and testing of evidence.79

SECOND APPEAL

Except where otherwise expressly provided in this Act or by any other law for the time being in force, an
appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of
the following grounds, namely that-

a. The decision is contrary to law or to some usage having the force of law;
b. The decision has failed to determine some material issue of law or usage having the force of law;
c. A substantial error or defect in the procedure provided by this Act or by any other law for the
time being in force, has occurred which may possibly have produced error or defect in the
decision of the case upon the merits.80

THIRD APPEAL

Where an appeal emanates from a judgment or order of a Chief Magistrate or Magistrate Grade I in the
exercise of his or her original jurisdiction but not including an interlocutory matter, a party aggrieved may
lodge a third appeal to the Supreme Court on the certificate of the court of Appeal that the appeal
concerns a matter or matters of law of great public importance, or general importance, or if the Supreme
Court considers in its over all duty to see that justice is done, that the appeal should be heard. 81

Where leave to appeal or a certificate that a point of law of great public or general importance has been
granted or refused by the court of appeal immediately after the delivery of that court’s decision against
which it is desired to appeal, a statement that leave or a certificate has been granted or refused shall be
included in the order82.

When a third appeal is made from the Court of Appeal to Supreme Court the record of appeal 83 will have
to include the order, if any giving leave to appeal and also the certificate of the Court of appeal that a
point or points of law of great public importance arise.84

If any of the above documents is missing from the record of appeal then such appeal is incompetent.
These documents are essential documents because they indicate that the appeal merits consideration by
this court. Their absence makes the appeal incompetent and it should be struck out. 85

REVIEW

79
Jones vs. National Coal Board [1957] 2 QB 55
80
S.72 Civil Procedure Act
81
S.6 (2) Judicature Act, S.73 Civil Procedure Act
82
Rule 87(12)& Rule 83(9) Court of Appeal Rules &Supreme Court Rules
83
Rule 83(2) c
84
Rule 83 (2) h
85
Beatrice Kobusingye vs Fiona Nyakana and another SCCA No. 18 of 2001 decided on 23-05-2002.
Introduction

It is the general principle of law that the court after passing judgement becomes functus officio and
cannot revisit the judgement or purport to exercise a judicial power over the same matter. However there
are exceptions to this general rule as set out under the law that allows court to review it judgement.

Any person considering himself or herself aggrieved by decree or order from which an appeal is allowed
but from which no appeal has been preferred or by a decree or order from which no appeal is allowed
may apply for a review of judgment to the court that passed the decree or made the order. 86

WHO MAY APPLY

The expression “any person aggrieved” means a person who has suffered a legal grievance. 87 Such a
person who is aggrieved may be a party to the suit or any third party may apply for review but such third
party must establish that he is an aggrieved person.88

A person aggrieved has been further defined to mean a person who has suffered a legal grievance, a man
against whom a decision has been pronounced which has wrongfully deprived him of something or
wrongfully refused him something or wrongfully affected his title to something, it is not sufficient that he
has lost something which he would have obtained if another order had been made. 89

A decree or order against a person not a party is on general principles of law, not binding on him. Such a
person, therefore, cannot have a legal grievance against a decree or order and consequently cannot apply
for review of the decree or order under the rule.90

Conditions for Review

The three cases in which a review of judgment or order is allowed are those of:-

(a) Discovery of new and important matters of evidence previously overlooked by excusable
misfortune.

(b) Some mistake or error apparent on the face of record.

(c) For any other sufficient reason, but the expression “sufficient” should be read as meaning
sufficiently of a kind analogous to (a) and (b) above.91

PROCEDURE

86
S.83 O.46 Civil Procedure Act and Rules
87
In Re Nakivubo Chemists (U) Ltd. [1979] HCB 12, Mohamed Alibhai vs. E.E. Bukenya Mukasa SCCA No.56 of
1996 (unreported)
88
Ibid, Adonia vs. Mutekanga [1970] EA 429, Chittalley and Rao 7th Edition at pp 4460
89
Associated Drivers and Operators Defensive Institute for Taxi and Traveler Agencies (ADDODITA) vs. UTODA
and Masaka Municipality Council Misc. Appl. Arising out of HCCS 451/1998 at Masaka
90
Ibid
91
In Re Nakivubo Chemists (U) Ltd. Supra n Yusuf vs. Nokrach [1971] EA 104,Among Annet Anita vs Electoral
Commission &Hon Akol Rose Okullu H.C.Misc.Application No.47 of 2006 at Soroti
Applications for review are to be made to the same judge who made them 92save when he is no longer on
the bench.93
Where a case is admitted to review by one judge and is afterwards tried by another, the new judge must
confine himself to the points directed by the other for review. A judge granting a review on one point has
no power to go into and decide a matter already finally adjudicated.94

The court may, if there is no sufficient ground for review dismiss the application. 95 Withdrawal of
counsel is not a ground for review.96

In considering an application for review, court exercises its discretion. Review is a matter of discretion
which must be exercised judicially.97

The High Court has no power to review its own judgment given on appeal under any special
jurisdiction.98 Review like appeal is the creature of statute and a court has no inherent power to review or
alter its own judgments, except for the limited purpose of correcting clerical or mathematical errors. 99

Review is not an end in itself but it is intended to correct a mistake and enable parties to settle their rights
in a proper and conclusive manner.100

An application for review must be made by motion on notice.101

An application for review under rule 2 of Order 46 is different from an application for review made under
rule 1 of Order 46 since it requires some ground other than discovery of new and important matter of
evidence and other matters referred to in rule 1 should be made. Unlike the application in rule 1 which is
made to the court, the application under rule 2 is made not to the court but to the same judge who made
the order sought to be reviewed.102

An appeal against a refusal for review must be based on the laws governing review. These are not
necessarily the same as those which govern appeal against the decision sought to be reviewed. 103

REVISION

The High Court may call for the record of any case which has been determined by any Magistrate’s Court
if such court appears to have;

92
O.46 r 4 In Re Dr. John Chrizestom Kiyimba Katto Miscellaneous Cause No. 29 of 1989 (unreported)
93
Levi Outa vs. UTC [1975] HCB 340
94
Henry Munyanganizi vs. General Machinery Ltd. HCCS No, 468 of 1983 (Unreported)
95
O.46 r 3
96
Baguma vs. Kadoma [1979] HCB 340, Buladina Nankya vs. Bulasio Konde [1979] HCB 239
97
Abdulla Jaffer Devji vs. Ali RMS Devji [1958] EA 558
98
Erimiya Serunkuma vs. Elizabeth Nandyose [1959] EA 127
99
S.99 Civil Procedure Act
100
Ladak A M Hussein vs. Griffiths Isingoma Kakiiza SCCA No. 8 of 1995 (unreported)
101
O.46 r 8 Pro Kabinenda vs. Sterling Astaldi (U) Ltd. Civil Suit No. 369 of 1968 (unreported)
102
Rohini Damji Sidpra vs Freny Damji Sidpra & Others SCCA No.60 of 1995
103
Rohini Damji Sidpra vs Freny Damji Sidpra & Others SCCA No.60 of 1995
(a) Exercise a jurisdiction not vested in it in law; or

(b) Failed to exercise a jurisdiction so vested; or

(c) Acted in the exercise of its jurisdiction illegally or with material irregularity or injustice,

The High Court may revise the said case and may make such order therein as it thinks fit. 104
The above provision was reiterated in the case of Elizabeth Bameka vs. Dodovico Nviiri.105

The section relates only to jurisdiction and the High Court will not interfere merely because a lower court
allowed an application which was barred by limitation. 106 The court has power to revise an interlocutory
order.107 An order purporting to attach salary which could not lawfully be enforced is revisable. 108

POWER OF HIGH COURT

The High Court has the right to revise an interlocutory order of subordinate court. In the exercise of its
discretion it is well established that the High Court will not necessarily interfere in every case where the
subordinate court has made an irregular order unless its failure to do so would result in substantial
injustice.109

The power of revision shall not be exercised in the following instances and the parties shall be given the
opportunity of being heard or where, from the lapse of time or other cause the exercise of such power
would involve serious hardship to any person.

The court cannot exercise its revisional power where there was lapse of time or other cause; the exercise
of such power would involve serious hardship to any person.110

A decision of a Chief Magistrate exercising an appellate jurisdiction is subject to revision. 111 Where a
Chief Magistrate makes an order without competent jurisdiction, such order is not competent. 112 Such an
order is subject to revision by invoking the supervisory jurisdiction of the High Court. 113

Before the High Court exercises its revision powers, it must be moved by the party aggrieved. 114

PROCEDURE

The procedure of application for revision is that an aggrieved party writes to the High Court Registrar
drawing his attention to irregularity of a surbodinate court and request that the matter be brought before a

104
S.83 Civil Procedure Act
105
[1973] ULR 134
106
Matemba vs. Yamulinga [1963] EA 643
107
Sandar Mohamed vs. Charan Singh [1959] EA Hassam Karim & Co. Ltd. vs. African Import & Export
Central Corporation Ltd. [1960] EA 396
108
Karia vs. Wambura [1961] EA 91
109
Muhinga Mukono vs. Rushwa Native Farmers Co-op Soc. Ltd. [1959] EA 595
110
Kabwengure vs. Charles Kanjabi [1977] HCB 89
111
Juma vs. Nyeko [1992] KALR 78
112
Mubiru vs. Kayiwa [1988-90] HCB 80, Mwatsahu vs. Maro [1967] EA 42
113
Byanyima Winnie vs. Ngoma Ngime HC Civil Revision 0009 of 2001 at Mbarara (unreported)
114
Kahuratuka vs. Mushorishori & Co. [1975] HCB 13
judge.115 However, in practice the High Court has always insisted that the aggrieved person should make
a formal application to court by way of Notice of Motion.

115
LDC vs. Edward Mugalu [1990-91] 1 KALR 103