Chemusto & 3 Others v Kissa (Miscellaneous Application 237 of 2024) [2025] UGHC 17 (20 January 2025)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# **MISCELLANEOUS APPLICATION NO. 237 OF 2024**

(Arising from Miscellaneous Application No. 0096 of 2024)

#### (Arising from Civil Suit No. 043 of 2017)

- 1. CHEMUSTO SIRASI ARAPBOK - 2. CHARLES SIWA MUNGANGA - 3. ROBERT MWALIMU - 4. CHELANGAT SIRASI::::::::::::::::::::::::::::::::::

#### **VERSUS**

KISSA JULIUS CHEMUTAI::::::::::::::::::::::::::::::::::::

### **BEFORE: HON. JUSTICE LUBEGA FAROUQ RULING**

- 1. This Application was brought under section 98 of the Civil Procedure Act Cap 282, Order 52 rules 1,2 and 3 and 51 rule 6 of the Civil Procedure Rules for orders that- - (a) The time within which to serve the application to set aside a dismissal order of Civil Appeal No. 70 of 2019 upon the Respondent be extended $\alpha$ r - (b) That the service of the application to set aside a dismissal order of Civil Appeal No.70 of 2019 served upon the Respondent out of time be validated. - (c) Costs of this Application be provided for. - 2. This application is supported by the affidavit of Charles Siwa Munganga, the 2nd Applicant sworn on behalf of the other Applicants and the grounds are briefly as follows- - (a) That the Applicants herein were the Appellants in Civil Appeal No. 70 of 2019 which was dismissed for want of prosecution; - (b) That the Appellants then filed Miscellaneous Application No. 096 of 2024 in which they seek to set aside the dismissal order for Civil Appeal No. 70 of 2019 and have the same re-instated and determined on its merits;

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- (c) That the Applicants have filed this application to validate service of Miscellaneous Application No.096 of 2024 and or extend time with which to file and serve the same; - (d) That the failure to serve Miscellaneous Application No. 096 of 2024 in time was as a result of the inadvertent omission of the Applicant's former counsel and the same ought not to be visited upon the Applicants; - (e) That this Application has been brought without inordinate delay; - (f) That this court is clothed with the discretion to validate and or extend time within which to serve Miscellaneous Application No. 096 of 2024. - 3. This Application was opposed by the Respondent where he averred that- - (a) Much as the country went into lock down in 2019, it was opened in 2020 and business came to normality and the applicants failed to prosecute their appeal only to be dismissed in 2022 for want of prosecution; - (b) That the Applicants and their lawyers are guilty of dilatory conduct when they failed to file matters in court and serve the same within time thus should be put to strict proof thereof; - (c) That the Applicants have already demonstrated a pattern to mislead court in believing that they were unable to take necessary steps for sufficient reason by bringing this application whereas not; - (d) That Miscellaneous Application No.96 of 2024 was filed on the 24th of April 2024 endorsed by court on the 6th of May, 2024 and served on counsel for the Respondent on the 29th of July, 2024 without seeking leave of court, so the negligence of the Applicant and their counsel be put to their detriment; - (e) The Applicants and their lawyers are triggered by a series of correspondences to confuse court by delaying justice to them by filing a number of baseless Applications; - (f) That the Applicants have not demonstrated any sufficient cause that warrant this court to validate and reserve Misc Application No.096 of

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2024 where a reply was filed on record on 24th of August 2024 by the Respondent and the Applicants are misleading court.

4. The Applicants further filed a rejoinder to this Application, I will consider the contents therein in the determination of this matter.

#### 5. Legal Representation

- 6. M/S Nappa & Co. Advocates represented the Applicants whereas the Respondent was represented by $M/S$ Sanywa, Wabwire & Co. Advocates. - 7. This Application proceeded by way of written submissions and all the parties complied. I will consider them in my analysis. - 8. Counsel for the Applicants framed the following issues for this court's determination- - (a) Whether there is sufficient cause to validate the service out of time or extend the time within which to serve the application to set aside a dismissal order of Civil Appeal No. 70 of 2019 upon the *Respondent.*

(b) What are the remedies available to the parties?

#### 9. Analysis of court.

Issue No.1: Whether there is sufficient cause to validate the $10.$ service out of time or extend the time within which to serve the application to set aside a dismissal order of Civil Appeal No. 70 of 2019 upon the Respondent.

This Application was brought under Order 52 rules 1, 2 and 3 of the 11. Civil Procedures Rules SI.71. Rules 1 and 2 of the same order provides that-

"All applications to the court, except where otherwise expressly provided for under these Rules, shall be by motion and shall be *heard in open court.*

*No motion shall be made without notice to the parties affected by the motion; except that the court, if satisfied that the delay* caused by proceedings in the ordinary way would or might

entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as to the court may seem just, and any party affected by the order may move to set it aside."

12.

"If upon the hearing of any motion or other application, the court is of opinion that sufficient notice has not been given or that any person to whom notice has not been given ought to have had the notice, the court may either dismiss the motion or application or adjourn the hearing of it in order that the notice may be given upon such terms, if any as the court may think fit to impose."

13. The above provisions of the law provide how motions and other applications should be instituted in court. While they stress that such motions or applications must be served to the opposite party, they do not specify the timeframe within which this service should be completed.

Rule 4 of the same order further provides that-

14. In Bugisu Muslim Supreme Council V. Musa Kalokola & 2 others **Miscellaneous Application No. 105 of 2024** this court while citing *Dr.* Lam Lagoro James V. Muni University Miscellaneous Civil Cause No. 0007 of 2016, stated that- the provisions of the law regarding applications of this nature are silent on the timelines for service but indicate that it should be completed within a reasonable period.

15. According to the court record, the application for reinstatement of the appeal which is Miscellaneous Application No. 096 of 2024 was filed on 24th of April 2024 and endorsed on 6th of May, 2024. This instant Application was filed on 16th of October, 2024 and endorsed on 22nd of October 2024 which is a period of almost 5 months. Five months to this court is unreasonable, considering the date when Civil Appeal No. 0070 of 2019 was dismissed. For purposes of clarity, the said appeal was dismissed on 10th of June 2022.

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- The Applicant in the affidavit in support places the default to serve 16. this application in time on their advocate. He specifically averred under paragraph 15 that- "The failure to serve Miscellaneous Application No. 096 of 2024 was solely due to the negligence of our former advocates M/S Wamimbi Jude Advocates and it would be unfair to visit the same onto me and my co-applicants." He attached annexure "E" containing receipts for payment of instruction fees for Civil Appeal No. 70 of 2019 to Wamimbi Jude Advocates to support his allegation. - 17. It is an undisputed fact that Advocates have a duty to follow up on their client's matters upon receiving instructions. However, litigants as individuals with direct interest in the dispute, share the same responsibility to monitor their cases, except for aspects that specifically require legal expertise. - 18. In Wk's Hardware Limited and Anor V. Stanbic Bank (U) Limited Miscellaneous Application No. 430 of 2023, this court found the claim that the litigants sought to ascertain the status of their matter from their previous advocate, without success, to be insufficient, as they were expected to take further steps beyond merely inquiring with their former lawyer. I am guided by the same reasoning. - In this case, the alleged appeal, from which this application arises, 19. was filed in court in 2019 and dismissed in 2022. The application for reinstatement of the appeal was not filed until 2024, nearly two years after the dismissal. This is an unreasonable delay for someone genuinely interested in pursuing their matter. - The above notwithstanding, after instituting the said application for 20. reinstatement of the appeal, the Applicants still did not serve it to the opposite party and only woke up after 5 months to institute this application. This is a dilatory conduct which this court cannot entertain. - As much as the Applicants place the default of failure to serve 21. Miscellaneous Application No. 96 of 2024 on their Advocate, they also had the same duty and they are equally to blame.

- Under paragraph 9 of the affidavit in reply the Respondent averred 22. that- "Miscellaneous Application No. 096 of 2024 was filed on the 24th day of April, 2024 endorsed by court on the 6th day of May 2024 and served on counsel for the Respondent on the 29th of July 2024 without seeking leave of court..." - 23. As already established above, the provisions of the law on motions and applications are silent on the timelines within which the same should be served on the opposite party but as per Bugisu Muslim Supreme **Council V. Musa Kalokola & 2 others (Supra),** the same should be done within a reasonable period of time. - 24. From the Respondent's averment quoted, it is apparent that he was served with the motion after a period of approximately 3 months from the date of endorsement. Three months to this court is unreasonable. Although the law is silent on the time lines within which to serve, if we are to draw an analogy from Order 5 of the Civil Procedure Rules which provides for the general provision on service, service of the motion effected within 30 days would be reasonable, but beyond that period in my view, would be unreasonable. - 25. Therefore, the Applicants having sat on their rights for almost three months without serving the motion to the opposite party and five months before instituting this application, such conduct imputes lack of interest to pursue the matter, and a clear intention, to deny the successful litigant from enjoying the fruits of the judgment. - 26. The position of the law is that a successful party should not be unreasonably prevented from enjoying the fruits of the judgment. This application arises from a matter which was instituted in court in 2017 and the judgment was delivered in 2019. Since 2019 to date, the Respondent has been denied the fruits of his judgment due to the dilatory conduct of the Applicants and their counsel. Court cannot condone such conduct.

In the circumstance, the Applicants unreasonably delayed to serve 27. the motion for Miscellaneous Application No. 96 of 2024 to the Respondent and the same cannot be validated by this court.

Issue No.1 is answered in the negative 28.

- Issue No.2: What are the Remedies available to the parties? 29. - Considering my analysis under issue No.1, this application is 30. dismissed. - Miscellaneous Application No. 0096 of 2024 which is pending the 31. results of this application to be considered, is accordingly overtaken by events.

Costs of this application are awarded to the Respondent. 32.

I so order.

. This has visual

LUBEGA FAROUO Ag. JUDGE

Ruling delivered via the emails of the Advocates of the parties on 20th day of January, 2025

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