Edward Kasinzi alias Gatsinzi vs Hussein Kisiki Nyamayalwo and 2others (Miscellaneous Civil Application No. 1747 of 2022) [2022] UGHCLD 216 (2 November 2022)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

### **MISCELLANEOUS APPLICATION NO.1747 OF 2022**

(Arising out of Miscellaneous Application No.1493 of 2022)

### (Arising out of Civil Suit No.156 of 2014)

### EDWARD KASINZI alias GATSINZI:::::::::::::::::::::::::::::::::::

## **VERSUS**

### 1. HUSSEIN KISIKI NYAMAYALWO

#### 10 2. MINSA NABAGABSO

NDUGA ABDUL::::::::::::::::::::::::::::::::::::

### Before: Lady Justice Alexandra Nkonge Rugadya.

## Ruling.

The applicant by way of motion under the provisions of **Section 33 of the Judicature Act cap.13,** 15 Section 98 of the Civil Procedure Act cap.71, Order 43 rule 1 and order 52 rules 1, 2, & 3 of the Civil Procedure Rules SI 71-1, brought this application seeking orders that the order in Miscellaneous Application No.1493 of 2022 be set aside and the application be reinstated and be heard and determined on its merits. It also sought that the costs of the application be provided for.

The application is supported by the affidavit in support of the applicant he was the defendant in **Civil** 20 Suit No.156 of 2014 which was heard and determined in favor of the respondents, who were the plaintiffs therein. And that being dissatisfied with the judgment of this court, the applicant through his lawyers filed a notice of appeal as well as a letter requesting a typed copy of the proceedings.

That the applicant's lawyers also filed Miscellaneous Application No. 1493 of 2022 and Miscellaneous Application No. 1494 of 2022 seeking to stay the execution of the judgment and orders of this court.

That on 12<sup>th</sup> September 2022, this court issued directives for service of **Miscellaneous Application** No. 1494 of 2022 by 13<sup>th</sup> September, 2022 and that the applicant's lawyers have always been waiting for further directives in regards to the substantive application, vide; Miscellaneous Application No.1493 of 2022.

- 30 That on 11<sup>th</sup> October, 2022, this court determined the matter the substantive application and dismissed the same for non-service, yet the court had never issued directives in regards to the same thereby making it impossible to serve the application and submissions on the respondents, and that determining the application unheard amounts to a breach of the non-derogable right constitutional right to be heard. - 35 In addition, while the applicant is interested in prosecuting the substantive application as well as the appeal, if the ruling in *Miscellaneous Application No.1493 of 2022* is not set aside and execution

(Inlose)

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stayed, the appeal shall be rendercd nugatory, and that it is in the intcrest ofjustice that this application for review and setting aside is allowed.

Thc respondent's opposed the application through their rcspcctivc affidavits in rcply wherein thcy objected to the application on grounds that thc application has no mcrits and ought to be dismissed with costs.

That on 12lh Scptember, 2022,lhls court issued directivcs in rcspcct of Mlscellaneous Applicatlon No.7493 of 2022 and that on 3O'h September 2022, whilc chccking thc ITCCMIS systcm, their lawycrs found out that the said directivcs had becn issued but had not becn complied with by the applicant who had not cffcctcd scrvice of cithcr thc application or submissions on the rcspondents.

That on 3td OcLobct 2022, the rcspondcnts through their lawycrs wrotc to this court informing the trial judgc of the applicant's failurc to comply with the dircctivcs and that thc application was corrcctly dismissed by this court for failurc to scrve or follow thc dircctivcs of thc court. 10

In addition, that the applicant and his lawycrs arc guilty of dilatory conduct in failing to follow up on their matter, and that the it is not true that thc respondcnt's lawyers mislcd this court, which correctly

acted on the letter, whose contcnts werc truc since thc applicant had failcd to cffcct scrvicc of thc application on thc respondcnts. As such thcrcforc thcrc is no mistakc on thc facc of thc rccord. 15

Further, that the application docs not disclosc any ground for review or setting .rsidc thc ruling in Mlscellaneous Appllcatlon No.1493 of 2022 aod that this application ought to bc dismissed with costs against thc applicant who is to blamc for his failurc to diligcntly follow up on thc mattcr.

Thc appiicant also filed an affidavit in rejoindcr to the rcspondents'affidavits in rcply whcrcin he statcd that the application discloses suflicicnt grounds for revicw, sctting asidc and rcinstatemcnt as laid down. He maintaincd that by l2rh Septembcr 2022, his lawycrs had not rcccivcd thc directives to scrvc thc applications and submissions in support thcrcol 20

That when they discovcred that the mattcr had becn dctcrmincd without giving directives, thc applicant's lawyers wrote to the trial judge inquiring why that was thc casc and they wcrc informcd that the directives had been sent via ECCIMIS. 25

That upon further inquiry from the technician as to why they had not rcccivcd the directives, they werc informed that there must havc bcen an error or faults on the system, which was rcctified by the tcchnician.

That the failure to serve and filc submissions as well as the application was not occasioned by eithcr the negligence or wrongdoing of the applicant's lawyers, but by the crrors and faults of the ECCMIS system. 30

Furthcr, that upon pcrusal of thc copy of thc lcttcr through which counscl for thc rcspondcnt movcd this court to dismiss the application, it was discovered that although counscl for the applicant was

copied in the samc, it was nevcr scrved on thcm and that had thc samc bccn served on counsel, thcy would have made clarifications and sought court's guidancc but thc rcspondents by going behind the applicant's lawyers allcging that they had becn negligcnt, illustratcs a wcll-orchestratcd plan to mislead court. 35

In addition, that since it was neither the applicant's nor his lawyer's negligence to file and serve submissions as well as the application, the same constitutes an error apparent on the record and that since it is not their fault that they did not receive the directives but rather a technological glitch, there is sufficient reason for reviewing, setting aside and reinstating *Miscellaneous Application No.1493*

#### $\mathsf{S}$ of 2022.

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## Representation.

The applicant was represented by *M/s Ahamya Associates and Advocates* while the respondents were all represented by *M/s Kaganzi & Co. Advocates*. Both counsel filed written submissions in support of their respective client's cases as directed by this court.

#### 10 Decision by Court.

I have carefully read the application, evidence, and submissions in support thereof, the details of which are on the court record, and which I have taken into account in determining whether or not the application merits the prayers sought.

Section 82 of the Civil Procedure Act, provides that any person considering himself or herself 15 aggrieved-

- a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or - b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit.

Order 46 rule 1 (1) (b) of the Civil Procedure Rules provides that any person considering himself or herself aggrieved by a decree or order from which no appeal is hereby allowed on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgment to the court which passed the decree or made the order.

In the case of Edison Kanyabwera versus Pastori Tumwebaze, Supreme Court Civil Appeal No. 6 **Of 2004** court found that:

"In order that an error may be a ground for review, it must be one apparent on the face of the record, i.e. an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no Court would permit such an error to remain on record. The error may be one of fact but it is not limited to matters of a fact and includes also error of law.

In the instant case, the applicant contends that there is an error apparent on the face of the record owing to the fact that **Miscellaneous Application No.1493 of 2022** was erroneously dismissed on 35 grounds of non-service yet neither the applicant or his lawyers ever received the directives of this court owing to technical errors and faults in the ECCMIS system.

According to the record, on *Miscellaneous Application No. 1493 of 2022* was filed on 12<sup>th</sup> September 2022 at 15:38 hrs.

This court then issued dircctivcs requiring the applicant to cffect scrvicc of the application and writtcn submissions on the respondent by 16th Scptcmber, 2022. l)y copy of the samc dircctivcs, thc respondents were requircd to filc and scrvc both their affidavit in rcply as wcll as the written submissions in support thercof by 21st Scptcmbcr, 2022, wh|le the applicant was to lilc and serve his reply thercto by 23rd Scptembcr, 2022.

According to the Electronic Court Case Managemcnt Information Systcm {['CCMIS) log, thc abovemontioned dircctives wcrc uploaded and admittcd on l2rh Septcmber 2022 at l6:O7. Ilowever, upon further audit of the system via the applicant's lawyer's portal, it was revealed that the said directivcs were nevcr rcflcctcd on thcir end.

It is the finding of this court therefore that thc applicant's failurc to comply with the directivcs of this court was neithcr his iault nor that of his lawycrs. 10

This court has powcrs undcr Sectlo'r 98 oJ the Clrll Proced.ure Act Cap 71 to makc such ordcrs as may bc ncccssary for thc ends of justicc as wcll as undcr Order 9 Rule 23 o.f the Clrttl Ptocedute Rules sct aside dismissal on sufficicnt causc bcing shown.

The administration ofjusticc normally rcquires that thc substancc ofall disputcs should bc invcstigatcd and decided on thcir mcrits and that errors and lapscs should no1 ncccssarily debar a litigant from thc pursuit of his rights - see tssqJl us. solanki f-I96q E. A 21a. 15

It is the linding of this court that the applicant did not intentionally ncglcct to or refuse to comply with the directives of court.

In light of thc above, I lind that it is in the intercst ofjusticc that thc ordcr complaincd of by thc applicant be reviewed and set aside. 20

# Oiders of cottrt:

- 7, The appltcatlon ls herebg alloued, Mlscellaneous Appllcatlo^ No,1493 oJ 2022 ls relnstated. aad ls to be heard a^d deterrnlned on {ts merlts. - 25

- submlsslons ulthl^ one ueek Jrom the d.a.te of delloerlng the rull^g. - 30 - 3. fhe ,,esponse sho ll be ffled utlthl^ flue days afi,er ,'ecelvlng the qp p llc dt lon/subml s slo n s ; - 4. A reJolnd.er to be J7led. afier two days Jtom the tlme ol rccelpt of the reply,

No ord.ers cs to costs.

I so ord.et.

Alexa'l.d,rd Nko adga

${\it Judge}$ $2^{nd}$ November, 2022.

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