Bukenya and Another v Kirumira and 2 Others (Miscellaneous Application No. 64 of 2021) [2023] UGCA 86 (9 March 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL HOLDEN AT KAMPALA

(Coram: Elizabeth Musoke, JA, Christopher Gashirabake, JA, Eva Luswata, JA,)

**MISCELLANOUS APPLICATION NO 64 OF 2021**

(Arising from H. C. C. S No. 220 Of 2008)

## 1. BUKENYA MUHAMOOD

**2. MRS FATUMA NALUKWAGO :::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

#### 1. KIRUMIRA GODFREY

#### 2. REV. FR. JOSEPH FISHER KORTORUM

3. FRED MUKWAYA :::::::::::::::::::::::::::::::::::

#### **RULING**

- 1] This is an application for striking out a notice of appeal and Civil Appeal No. 28 of 2018 brought by way of Notice of Motion under Rules $2(2)$ , $43(1)$ & $(2)$ , 44 and 82 of the Judicature (Court of Appeal Rules) Directions, SI 13-10) (hereinafter COA Rules) and for orders for costs. - 2] The application filed by $M/s$ Odokel Opolot & Co., Advocates is premised upon seven grounds which are contained in the notice of motion. It is contended for the applicant as follows:

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- $i.$ *That the applicants were successful parties in Civil Suit No. 220* of 2008 and the $1st$ respondent having been dissatisfied with the decision of the High Court filed a notice of appeal that was served on the applicants on the $30$ th day of April, 2018. - ii. *That it is now more than 2 and a half years, almost getting to 3* years since the notice of appeal was filed and served on the applicants. - That the respondents through their lawyers, $M/S$ Sekabanja and iii. *Company Advocates wrote a letter requesting for the record of* proceedings and the same was filed on the $17th$ day of April, 2018 - That indeed no such memorandum and record of appeal have iv. *ever been filed in the Court of Appeal* - That the $1^{st}$ Respondent has never taken any essential steps in $\upsilon$ . *pursuing the appeal.* - That this application has been brought to stop the $1$ st Respondent vi. from misusing the court process so as to disable the applicants from enforcing the decree issued by the court in H. C. C. S No. 220 of 2008. - That it is in the interest of Justice that this Application be vii. allowed. - 3] Muhamood Bukenya swore an affidavit in support of the motion in which the above grounds were amplified. Bukenya in addition stated that upon the advice of his legal counsel, failure to file and serve a memorandum of appeal renders the appeal nugatory and once no action is taken to pursue the appeal, it ought to be struck

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out. I Ir: addcd that the dilatory conduct of the respondents, is an indi<::rtion that they have lost interest in pursuing it.

- 4] God[r-i'-y l(irumira who was represented by M/s Sekabanja & Co., Advo<:artcs opposed the application. He filed an affidavit in reply in whicl-r hc conceded that the applicants were the successful parties in thr: suit, against which he had intentions to appeal. That to effcr;tr.rl.rtc that intention, he instructed his lawyers above to file an appcal and they requested for the typed record of proceedings. Thal iroth the notice of appeal and formal request for the record wero scrvcd upon the applicants. He continued that neither him nor his lawycrs have since been called upon to collect the typed procr:<:dings despite his counsel's numerous efforts to follow up the srrmc. In his view, the delay to provide those proceedings cannot bc attributed to him, an innocent litigant. That upon the advir:r: of his counsel, this application lacks merit and ought to disrnisscd with costs. - 5] At th<: hcaring of this application, the applicants were represented by Mr'. . Jarncs Oluka while the 1"t respondent was represented by Mr. Opio Moses. Counsel for the parties filed written submissions whicl'r this Court will consider to decide the application. In his subrnissions, counsel for the applicant raised two issues for detr:r'rn ination, to wit:

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- Whether the notice of appeal No. 28 of 20 18 can be struck out for failure to take essential steps. 1 - What remedies are available to the parties 11

# Applicants submissions

- 6] Citing the decision of Baku Obudra & Ors versus the Attorney General Constitutional Appeal No. 1 of 2OO5 ancl Attorney General versus Shah (No.a) IL97L| EA 50, counscl for the applicant submitted that an appeal is a creaturc of stzrt urLe and no court of law has a residual right of appeal. He in additior-r relied on Rule 83 COA Rules which affords an appellant 6O days (following lodgment of a notice of appeal), to lodge a memorandurn of appeal. It was counsel's view that the memorandum was ovordue since none had been filed since 17 1412018. He continucd that the 1"t respondent's notice of appeal offends the COA Rulcs br:cause the statutory 60 days within which to file a memorandum of appeal was not complied with. In that regard, counscl rclerred to paragraph 2 of Bukenya's affidavit in which hc stalc:s that the applicants or their lawyers have never filcd nor served a memorandum of appeal on the applicants'lawyer, which assertion is proved by the absence of any proof of service of thc same. - 7l In conclusion cou.nsel submitted that the respondents failed to comply with Rule 8a(a) of the COA Rules, and by lailing to take the essential step of lodging and serving the mcmorandum of appeal for the last three years, they are deemed to havc voluntarily

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withrlr-awn the appeal. In conclusion, counsel prayed that this honour-arblc court strikes off the 1st respondents intended notice in rcspcct of Civil Appeal No. 28 with costs.

## Respondents submissions

- 8] In rosl)or1sc, respondent's counsel agreed with the provisions of Rul<:82 COA Rules. He then referred to Rule B3(1) COA and the casc ol- Andrew Maviri versus Jomayi Property Consultants Limited, CA Civil Application No. 274 of 2014. It was held thcrr:in thert according to Rule 83(1) COA Rules, an appeal must be iilc<l within 6O days of the date of the initial decision. That on thc otlic:r 1-rand, Rule 83(2) and (3) COA Rules, permit an appellant to cxcludc lrom the computation of the 60 days'limit, the time takr:r r by thc Registrar to prepare and deliver copies of typed pro<:<'crlings to the appellant, provided the application for the pror;cr:clings was in writing, and that a copy of the said letterl appli<:ation was served upon the respondent. - 9] In oor.-nrscl's view, there is need for this honourable court to detcrrninr: whcther the applicant took an essential step in the proct'c<lirrss which the respondent submits that he took. In that regiiril, l-rc rcferred to the case of Utex Industries Ltd versus Attorney General, SC Civil Appeal No. 52 of 1995 cited with appr'oi,rrl in All Muss Properties Ltd & 2 Others versus CTM Uganda Ltd & 2 Others, Civil Application No. 379 of 2OL7 whcr-t: i1 was held that taking an essential step is the performance

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of an act by a party whose duty is to perform that fundamentally necessary action, demanded by the legal proccss.

- 10] In order to explain his submission, cournsel showcr.l Lhat after the decision of the High Court was delivered on 11 l4l2Ol8, on 16/4l2OLB, the 1"t respondent wrote to the Registrar I Iigh Court Land Division requesting for a typed record of proccr:clings and filed the same on 17 /412018. That since Bukcnya oonceded to have received that letter together with a noticc of appeal that counsel for the 1"t respondent had filed in court, it should be taken that the l"t respondents took the essential stcps fur-r<lnmentally expected of them. - 111 In addition, counsel for the 1"t respondent sulrn-ritted that the 60-day rule under Rule 83(10) ceased to apply whc:rr his client filed a letter requesting for the typed record of procccdings in the High Court. That it is now upon the High Court to 1;rcpare and inform the l"t Respondent that the typed record of proct:edings is ready for picking in order for him to preparc ancl fiIe the Memorandum and record of appeal. Counsel submittcd that he has never been called upon to pick the record of procccclings. That the law for filing the appeal in time cannot be uscd against them for they have not yet been availed with the typcd ri:cord and proceedings.

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l2l [n cr>nclusion, counsel for the l"t respondent submitted that thc n:s1>ondcnt took all the necessary steps in the circumstances of ttris onsc, and only awaits to be availed with the record of procr:cclings by the trial Court. He prayed that the notice of appeal of No. 28 ol 2OlB should not be struck out.

# Applicant,r .s u-brnrqq@

- 13] In rcjoinder, applicant's counsel drew our attention to the contr:nls r>f paragraph 2(c) of Bukenya's affidavit in rejoinder. He depo,;r:rl ttrr..rL after filing a notice of appeal, the respondents aderrnnnLly rcfused to file a memorandum of appeal for four years yet ttrr: typccl record of proceedings and the judgment were ready thc l,,t r-csllondent's affidavit as falsehoods and argued that after filing tl.rc: n<>ticc of appeal, the 1"t respondent became indolent and slept firr four years yet the typed record of proceedings and judgr:n-rc:nt wcre ready for collection, two years previously. - L4) (litirrs thc decision of Andrew Maviri vs Jomayi Property Consultants Ltd, Civil Appeal No. 274 of 2OL4 counsel then repr:irtcrl t]-rc submission that the l"t respondent had failed to cornl.rlv u,it1-r the provision of Rule 82 COA Rules by collecting from Cot-u'l tl.rr; ru:cord of proceedings and filing the memorandum of

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appeal. That in the result, the appeal was rendered incompetent and nugatory and ought to be struck out with costs.

$15$ In conclusion counsel submitted that the $1st$ respondent having failed to take essential steps in proceedings within 60 days as prescribed by law, and ignoring to collect the record of proceedings and judgement of civil suit No. 22 of 2008 renders his purported notice of appeal nugatory and incompetent and liable to be struck out with costs for failure to take essential steps.

## Issue 2

On issue two, applicant's counsel submitted that the award 161 of costs is a discretionary remedy that can be granted by court to a party that has incurred expenses in the course of litigating a suit. He cited o **Section 27(1) of the Civil Procedure Act** and the decision of **Andrew Maviri versus Jomayi Property Consultants Limited, (Supra)** where court struck out a notice of appeal with costs to the applicant. He prayed that likewise, this application be granted with costs against the $1st$ respondent. Counsel for the respondents submitted conversely that since their client had taken the essential step in prosecuting his appeal, the application ought to fail and be dismissed with costs.

## Respondent's reply to the applicant's submissions in rejoinder.

$17$ Counsel for the respondent submitted that he was mindful that his client had no right of rejoinder. However, that he was

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$GL/L$ persr rri(iod to make one because Bukenya introduced new facts by atti-rclring to his affidavit in rejoinder, a letter from the Deputy Regislr-rrr'o['thc High Court. In that letter, the Registrar indicated thert 1lr<: r<:c:ord of proceedings was ready for collection. Counsel thcr-r st-rbrnitted that the letter was addressed to M/S Odokel Opolot {i, Co. Advocates, collnsel for the intended respondents in thc lr r r I rcal, &s opposed to being addressed and served upon counsci frrr- thc appellants. That appellant's cottnsel was neither ser\/o(l rror notified to collect the record of proceedings from the Higl-r (lourt, which was the duty of the Registrar. Counsel further sutrnrittc:cl that M/S Odokel & Co. Advocates despite having know'lr:rlgc of the letter concealed its existence. In his view, its conocrrlrnr:r-rt was in bad faith intended to deprive the 1"t resp()rrrlr:nt from pursuing his rights.

## Our decisio n

18] L.rrrcir:r- Rule 76(l) COA, filing of a notice of appeal will con)rn('nco i-rn appeal. It is then provided under Rule 83(1) COA, thi-rt ir rrarty who files a notice of appeal, must follow it up with lodgrncrrt oI ar memorandum of appeal and record of appeal after 60 rlrri,'s. Undcr Rule 83(2) COA, that period may be enlarged if the intr:ri<lirrg ;rppellant made a written application for the certified recor-(l oI tlrc lower court, and served such notice on the intended reslloirrlr:nt. A party may only rely on such an extension under Rulc: ,3:l(2) COA, only if the Registrar has certified the time as was reqrrirt rl to prcpare and deliver the typed record. Under Rule 84(1) COi\. r r pi-rrt v who files a notice of appeal but fails to institute the

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appeal within the prescribed time, shall bc clcr:nrccl to have withdrawn the appeal.

19] There is remedy for a respondent who is confront-cd with a delayed appeal, for they can apply for the noticc 1o lx: struck off the record. Rule 82 COA provides as follows:

"A person on whom a notice of appeal has been seruc:rl nLctA at any time, either before or afier the institution of the appeal, apply to the court to strike out the notice or the appeal, as the c'cr.sti ntaA be, on the ground that no appeal lies or that some essc-rttirrl sLep in the proceedings has not been taken or has not been tctlt.r:rr tuithin the prescribed time."

2Ol Rule B3(1) COA is couched in mandatory ti:r"rrrs. Ilowever, the established practice has been for the CourLs Lo maintain delayed appeals if good cau.se is shown. Although in Ll.ris case we are not dealing with an application for extensir>r'r of-tinrr: to file a memorandum of appeal, it is necessary that thc a1:plir;ant shows that the respondent failed to take the necessary stcp, rrnd for the 1st respondent to convince us that there is goc>d rc.-lson for his failure to take the right step in time. See Njagi v Munyiri[19751EA L79.ln the case of Utex Industries Ltd versus Attorney General (supra) followed with approval in Juliet Kalema versus William Kalema & Anor, CA Civil Application No. 2412OO4, the Supreme Court while dealing with an application k>r crrlargement of time had this to say:

"To apttic.l c.lel.aUS, rules of Court prouide a timetable uithin uhich cerlrin .sleps ought to be taken. For any delag to be excused, it must be c: x yt I c tin ecl satisfactorily ".

Thr-rs ii tr sl-rall in addition to considering the application, consider thc r'oasorls advanced for the delay to have it filed as the law provirit's.

- 2l) \,4,i r: h;rrr(: confirmed from the record that although there were thrcc lirdgrrrcnt debtors in the lower court, it is only Godfrey Kin.rrnir-i.r who filed an appeal against the judgment. The gist of the comirlirint bclore us is that after Kirumira lodged a notice of appeal in llrc iligl-r Court, he failed to file the memorandum of appeal witlrin tlrr: prcsctibed time. That although his request for typed copit:s oI tl-rc order and proceedings was issued by the Registrar, he r-rcillt:<:tr:d to take the necessary step for a period of up to four year"ri. i'.ir-rrrnira argued that he served the notice of appeal on the appi:li:,rrts. Flc conceded that no memorandum was filed, but pla<;cci tl-rr: blame on both the Registrar and the applicant's counst'l lirr- lailing to bring to his attention the fact that the letter was is;:-;r.rcrl and was ready for collection. - 22) Iirrvir)g pcrused the record, we confirmed the uncontested facl tirirl through his lawyers, M/s Sekabanja & Co., Advocates, Kinrrr;iirr lrlccl and lodged the notice of appeal in the High Court Lan<.1 i ) ivision <>n 1 7 / 4/20 18. It is also evident that using the same

lawyers, on 16l4l2Ol8, he wrote a letter to thc Ilcrlistrar, High Court, Land Division requesting for the record of arppoal. In a letter dated l2/8/2O2O, the Registrar wrote to M/s Oclol<cl Opolot & Co., Advocates requesting them to collcct tlrt'ru:cord of proceedings from court. That letter was not copicd Lo I(irumira or his lawyers, and there being no corresponding noticc: tc> them, we are inclined to believe Kirumira's evidence that his lervr,,r,crs did not receive any response from the Registrar, or any rrotil'i(rilLion from the applicants and their lawyers.

23) It is clear that the Registrar notified thc \\/r'ong firm of advocates about the typed record. However, in his zilf iclrivit in reply to the application, Kirumira claimed that his larn,\,r)t's had on numeroLrs occasions been going to court in as an aLlcrnl>t to obtain the typed record of proceedings that they had appliccl ftrr, but all in vain. With respect, in view of the Registrar's lcttcr rrtrorrc, we are unable to believe that evidence. Nothing was :.rttrrr:lrr:d to the affidavit to confirm his lawyers'efforts and had tkrr:v i,isited the Court as he stated, then they should have becn nblc to see that letter and the typed proceedings as well. Again, I(irurrnir-:r's request for the record was made during April 2018, ancl tl-rc r-r:cord was ready for collection in August 2O2O, more than two .\'c:ars later. The application was filed in June 2022, anothc)r tr,r:o .ycars after the Registrar's letter. All that time, Kirumira and his ardvocates were not aware of it or taken any documented sLcp Lo cngage the Registrar over the delay in responding to a rcqucsL in 20IB.

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24) Iir oru'vicw, this was clearly a case of negligence of Kirumira and l-ris lar,r,ycrs for failing to follow up on the a request they made to Cr>r-rrt \\/i.ry back on 161412018. The applicants' or their lawyers who cilnrc to lcarn that the typed record was ready, were under no dut-r, to inf orm Kirumira or his lawyers of that fact. It may well be that thc lft:gistrar was duty bound to respond to a formal request for thc pr-oc:ccdings, it still remained the duty of Kirumira or his lawvcr''s 1o lollow up the matter.

25) Kir-rrrnira advanced a strong argument that he cannot be penrtliztrl li-lr his Advocate's actions. That may be so because an entru:ri<:hr:d principle is that a person cannot be punished for the errors ol I'ris advocate. See for example Sepiriya Kyamuresire versus Justine Bikanchurika Bagambe SC Civil Appeal No. 20 / L995. I lowever, that privilege cannot be extended to a litigant who is priv,y to the advocate's actions or is at least, guilty of dilz.rt()r'\, (:()n(1uct in the instruction of a lawyer. See Phillip Ongom Capt & Anor versus Catherine Nyero Owota CA Civil Appeal No. 1 4 /2OA L [2OO3] UGSC 16 and Mohamad B. Kasasa versus Jasphar Buyonga Sirasi Bwogi, CA Civil Appeal No. 42 of 2OO8. Altlrottl',h [(in-rmira instructed lawyers to file the appeal, he was not <;onrlrlctr:1y absolved from following up on the its progress. He did rrot do so for a period of nearly four years and appears to have onl-r, r,r,ol<cn up when served with this application.

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26) It is our decision then that once they lilccl tirr: rrotice of appeal, Kirumira through his lawyers was duty bourrrl to take the necessary step to have the memorandum of appc:al l-ilr:rl ',"vithin 60 days, which is a mandatory requirement. Making a l'olrnal request for the proceedings alone did not necessary placc Kirr-rrrrirz-r outside that mandatory provision. He had to act on that r-t:rprcst, which Kirumira and his lawyers failed to do. Rising up ncarl.,, firur years after filing the notice of appeal would be inordir.riitc delay of spectacular proportion. We would for that rcitsorr follow the decision in Andrew Maviri vs Jomayi Property Consultants Ltd, CA Civil Appeal No. 274 of 2OL4 where it \,vas lrr;ld that a respondent who failed to lodge the appeal within (>O riil.ys lrom the date of receipt of a record from the High Court, \^/z.ls (lccn-rcd not to have taken the essential steps to prosecutc thc rr1;pcal. The delayed appeal if not halted, will continuc tr> l'r'rrslrate the applicants who were the successful party in thc Ilir.llr Court, to enjoy the fruits of the judgment.

271 For the reasons above, we strike out Civil Appcal Nurmber 28 of 2O1B and the Notice of Appeal bywhich it was lodgr:rl. 'l'he costs of application shall be borne by the l"t respr>n<1orl, Godfrey Kirumira.

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**DATED** at Kampala this....................................

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ELIZABETH MUSOKE JA

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**CHRISTOPHER GASHIRABAKE JA**

EVA K. LUSWATA JA

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