1. I have considered the notice of preliminary objection dated 8 March 2023 together with the submissions in support and in opposition to the same, and the applicable law.
2. The basis of the objection is that the appeal was filed out of time and without leave of the court, and is accordingly fatally defective.
3. The applicable law in relation to a preliminary objection is found in the case of Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696, where the court held as follows:
“so far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
4. The respondent on the other hand argued that the application was filed under a misapprehension of facts, and that the record speaks for itself. The respondent/plaintiff drew the courts attention to page 406 of the record of appeal filed in the present matter. I note the orders of the court issued on 5 July, 2023. The relevant part of the same states the following:
“1. that leave be and is hereby granted to the plaintiff/ applicant to file this application out of time seeking leave to file an appeal against the orders of this court is issued on the ruling delivered on 10 December 2021…
2. That leave be and is hereby granted to the plaintiff applicant to file an appeal in the High Court against the orders of this court is issued on the ruling delivered on 10 December 2021…”
5. It is evident that the ruling being appealed from is dated 10 December, 2021 and leave to appeal was granted on 28 October, 2022, one year after the ruling. It is therefore evident that leave to appeal out of time was granted by the lower court.
6. Further, I note that the memorandum of appeal is dated 28th October, 2022, and stamped as received by the law firm for the applicant on 7 November, 2022. The timelines correspond to the facts as set out by the appellant in relation to the orders granted by the court.
7. Counsel for applicant submitted from the bar that the lower court had no jurisdiction to make the order quoted above, however no appeal to those orders have been lodged in court by the applicant, and no written submission in relation to the applicable law, or any authority in support of that argument was produced before this court.
8. On the other hand, the appellant/ respondent submitted that the relevant law is found at section 75 of the Civil Procedure Act, and further at Order 43 rule 3, which does not bar the lower court, as the court granting leave to appeal, from also granting leave to appeal out of time. The courts attention was also brought to section 95 of the Civil Procedure Act, which again, upon reading the same does not expressly bar the court granting leave to appeal, from also granting leave to appeal out of time.
9. Guided by the law above, and based on the reasons set out above, I find and hold that the preliminary objection fails. The same is dismissed with costs.