Case Number APPEAL NO. 4 OF 2017

The Scheduling Conference for Reference 1 of 2015 was held and finalised by the Trial Court on 14th June 2017. Thereafter, when the case came up for hearing on 5th September 2017, Counsel for the Appellant made an oral application requesting for the inclusion of two further issues for determination however, the Trial Court declined the request. In this Appeal, the Appellant challenged the Trial Court’s refusal to incorporate the issues proposed claiming that this was an error in law and that omission of the issues would be fatal to his case. As part of the Record of Appeal, the Appellant included the Scheduling conference notes and trial transcripts.

The Respondent submitted that: there was no judgment or order made by the Trial Court on 5th September 2017 from which an appeal could arise therefore the Appeal was premature and incompetent. Moreover, there was no error in law or procedural irregularity.

Date filed
KeywordJurisdiction , Order , Record of Appeal
Treaty ArticleArticle 35 A , Articles of EAC Treaty , Rule 53 , Rule 68 , Rule 69 , Rule 77 , Rule 78 , Rule 88 , Rules of Procedure 2013

First Instance Judgment

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Appeal Judgment

  1. In the East African Community jurisprudence an appeal lies to the Appellate Division only to challenge a judgment or an order of the First Instance Division of this Court, Article 35A. It is a condition precedent that to exercise a right of appeal, a judgment or an order of the Trial Court must be in existence. A judgment includes a ruling, an opinion, an order, a directive or a decree of the Court. The judgment, order or a ruling with the reasons of the Trial Court must be included in the Record of Appeal.
  2. On 5th September 2017, the Trial Court did not give a formal order or ruling the trial proceeded as scheduled. The hearing note and proceedings of verbal exchanges of 5th September 2017 are not appealable under Article 35A of the Treaty. The onus of producing a judgment or an appealable order was on the Appellant. By producing scheduling conference notes or trial transcripts, the Appellant failed to discharge that duty. Therefore, the Court has no jurisdiction.
  3. Jurisdiction is so fundamental that it can be raised at any stage either by the parties or suo motu by the court and no consent or acquiescence can confer on a court or tribunal with limited jurisdiction to act beyond that jurisdiction, or estop the consenting party from subsequently maintaining that such Court or Tribunal has acted without jurisdiction. The Appeal was misconceived wanting on account of lack of jurisdiction and was therefore be struck out.
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Date deliveredAugust 24, 2018