Fatemabai Fazlehussein Patwa v Haruna Enterprises (U) Ltd (Miscellaneous Application No. 1090 of 2025) [2025] UGCommC 192 (30 June 2025)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 1090 OF 2025 (ARISING FROM MISC. APPLICATION NO. 1869 OF 2024)** 10 **(ALL ARISING FROM CIVIL SUIT NO. 31 OF 2021) FATEMABAI FAZLEHUSSEIN PATWA ::::::::::::::::::::::::::::::: APPLICANT VERSUS HARUNA ENTERPRISES (U) LTD :::::::::::::::::::::::::::::::::: RESPONDENT**

## 15 **RULING**

**BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

### Introduction

This application was brought by way of Notice of Motion under **Section 98 of the Civil Procedure Act, Cap. 282, Order 51 rule 6 and Order 52 rule 1 of the Civil Procedure Rules SI 71-1**, seeking orders that:

- 20 1. The time within which the Applicant may file and serve an affidavit in reply to the Applicant's Notice of Motion be enlarged. - 2. The Applicant's affidavit in reply, which was filed and served on 25th April, 2025 be validated as having been duly filed and served. - 3. Costs of the application be awarded to the Applicant.

### 25 Background

The background of this application is contained in the affidavit in support deponed by **Ms. Fatemabai Fazlehussein Patwa** the Applicant, and is summarized below:

- 5 1. That on 3rd April, 2025, she was served with the Respondent's Notice of Motion and supporting affidavit through her Counsel of M/s Signum Advocates. - 2. That upon receipt of the application, she began the process of preparing her affidavit in reply, which involved remotely 10 collaborating with her lawyers and scheduling an appointment with a Notary Public since she is a resident of the United Kingdom. - 3. That the affirmation of her affidavit in reply could not occur within the required timeframe due to the necessity of scheduling an appointment with the Notary Public. - 15 4. That the deadline for filing the affidavit in reply was 18th April, 2025 which was Good Friday, a public holiday but the earliest appointment she could get with a Notary Public was 25th April, 2025 considering that it was a period of school holidays. - 5. That she duly affirmed her affidavit in reply on 25th April, 2025 and 20 the same was filed and served onto the Respondent on the same day. - 6. That under the circumstances, the time of filing and serving the affidavit in reply should be extended or the affidavit in reply filed and served out of time should be validated.

In reply, **Mr. Haruna Sentongo** the Respondent's Managing Director, 25 deponed an affidavit opposing the application and contended that:

- 1. The Applicant was duly served with the Notice of Motion and supporting affidavit on 3rd April, 2025, which gave her ample time within which to respond in accordance with the rules and standard timelines of this Court. - 30 2. The Applicant has not provided sufficient or reasonable justification for the inordinate delay in filing her affidavit in reply.

- 5 3. That the alleged scheduling difficulties with a Notary Public in the United Kingdom do not amount to circumstances beyond her control since she could have planned for the affirmation on time or utilized alternative available Notaries earlier. - 4. Since the Applicant was served with the Notice of Motion on 3rd April, 2025, the last day of filing the Applicant's affidavit in reply was 18th 10 April, 2025 however, since 18th April, 2025 was a public holiday, the Applicant's last day of service was 22nd April, 2025 but she filed her reply on 25th April, 2025. - 5. The Applicant's affidavit introduces substantive responses to issues, 15 which the Respondent is entitled to scrutinize thoroughly. The late filing limits the Respondent's ability to respond adequately before the scheduled hearing, thereby causing prejudice.

### Representation

The Applicant was represented by Learned Counsel Gerald Batanda of **M/s**

20 **Signum Advocates** while the Respondent was represented by Learned Counsel Elvis Ndikuno of **M/s Johnson Njoki & Co. Advocates**.

Both parties filed their written submissions as directed and the same have been considered by this Court.

### Issues for Determination

- 25 Following **Order 15 rule 5(1) of the Civil Procedure Rules** and the case of *Oriental Insurance Brokers Ltd Vs Transocean (U) Limited SCCA No.55 of 1995,* this Court framed the following issues: - 1. Whether the Applicant has shown sufficient cause to warrant the exercise of the Court's discretion to enlarge time? - 30 2. What remedies are available to the parties?

# 5 Issue No. 1: Whether the Applicant has shown sufficient cause to warrant the exercise of the Court's discretion to enlarge time?

### Applicant's submissions

Learned Counsel for the Applicant submitted that since the Applicant is based abroad, she is required to comply with the affirmation procedures. 10 That the period within which she ought to have done that, she was disrupted by public holidays which rendered notarial services temporary inaccessible. That upon receiving the Notice of Motion, she acted swiftly by securing the earliest possible appointment with a Notary Public and therefore she was not acting dilatory.

15 That the Respondent's assertion that the Applicant should have sought an alternative Notary is unreasonable since she cannot be expected to overcome jurisdictional limitations and holiday closures. That it is in the interest of justice that the application is granted since this is not a case of procedural abuse but one where a bonafide litigant made good faith efforts 20 to comply with Court's directives but was constrained.

Learned Counsel relied on the cases of *Oryema Sam Baker Vs Okole Ismail HCMA No. 27 of 2011, Solomon Champlain Lui & Another Vs Stanbic Bank Uganda Ltd HCMA No. 766 of 2016, Surgipharm (U) Limited Vs Uganda Investment Authority & Another HCMC No. 65 of* 25 *2021* and *Dr. Lam-Lagoro James Vs Muni University HCMC No. 07 of 2016*.

### Respondent's submissions

In reply, Learned Counsel for the Respondent submitted that the Applicant's attempt to justify the late filing on grounds of cross border 30 logistical constraints and public holidays falls short of the legal threshold

- 5 for sufficient cause. That whereas the Applicant claims to have acted swiftly after service on 3rd April, 2025, no proof has been adduced to that effect. Learned Counsel relied on the case of *Labu Saidi Chepchulei Vs Ocen Ambrose & Others HCMA No. 10 of 2022*, in which Counsel submitted that Court held that cross-border difficulties, such as distance - 10 or scheduling issues abroad, are not sufficient cause unless the Applicant can demonstrate that they actively sought to comply and were genuinely unable to do so despite their efforts.

That the suggestion that filing on the 'following working day' after public holidays cures the breach, mischaracterizes the nature of mandatory

15 timelines under **Order 12 rule 3(2) of the Civil Procedure Rules**.

To that, he relied on the cases of *Stop & See (U) Ltd Vs Tropical Africa Bank Ltd HCMA No. 333 of 2010, Elias Waziri & 2 Others Vs Opportunity Bank HCMA No. 599 of 2013* and *Teberio Okeny & Another Vs Attorney General CACA No. 51 of 2001.*

20 Learned Counsel went on to distinguish the cases relied on by the Applicant and submitted that allowing the Applicant's affidavit under these circumstances would be to erode the authority of procedural rules and endorse indifference toward Court sanctioned timelines.

### Applicant's submissions in rejoinder

25 In rejoinder, Learned Counsel for the Applicant reiterated his earlier submissions and emphasized that the Applicant took the earliest available steps to affirm the affidavit and serve it without delay. That the practical ability to affirm the affidavit before 22nd April, 2025, was compromised by the holiday period and notarial closures. Learned Counsel for the 30 Applicant prayed for the grant of the application.

### 5 Analysis and Determination

I have considered the pleadings, submissions and authorities by both Counsel. **Section 98 of the Civil Procedure Act** empowers this Court to make such orders as may be necessary for the ends of justice.

It is now trite that the time within which to file and serve Court documents 10 is of the essence, and such provisions should be interpreted as mandatory and applied strictly. (See: *Stop and See (U) Ltd Vs Tropical Africa Bank Ltd (supra)*.

#### **Order 51 rule 6 of the Civil Procedure Rules** stipulates that:

"*Where a limited time has been fixed for doing any act or taking* 15 *any proceedings under these Rules or by order of the Court, the Court shall have power to enlarge the time upon such terms, if any, as the justice of the case may require, and the enlargement may be ordered although the application for it is not made until after the expiration of the time appointed or* 20 *allowed; except that the costs of any application to extend the time and of any order made on the application shall be borne by the parties making the application, unless the Court shall otherwise order*."

In the case of *Hadondi Daniel Vs Yolamu Egondi C. A. C. A No. 67 of* 25 *2023*, the Court of Appeal held that:

*"It is trite law that time can only be extended if sufficient cause is shown. Sufficient cause must relate to the inability or failure to take the necessary steps within the prescribed time. It does not relate to taking a wrong decision. If the Applicant is found to be guilty of* 30 *dilatory conduct, the time might not be extended."*

- 5 The term "sufficient cause" though not defined by our Civil Procedure Rules, has been defined in several cases. In the case of *Gideon Mosa Onchwati Vs Kenya Oil Co. Ltd and Another [2017] eKLR 30* the Court relied on the definition in the Indian case of *Parimal Vs Veena Alias Bhati, [2011] 3 SCC 545*, in which the Court observed that: - 10 *"Sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to* 15 *accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that a party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and* 20 *circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously."* - 25 In the instant case, it is undisputed that on 3rd April, 2025, the Applicant was duly served with the Notice of Motion and supporting affidavit in *Misc. Application No. 1869 of 2024*. It is also undisputed that the Applicant had to file her affidavit in reply by 22nd April, 2025 but she filed the same on 25th April, 2025.

5 The Applicant averred that she was unable to file her affidavit in reply on time due to the necessity of scheduling an appointment with the Notary Public during holidays since she is a resident of the United Kingdom.

That the deadline for filing the affidavit in reply fell on a public holiday, Good Friday, and since it was also a school holiday, few Notaries Public 10 were at work that week and the following week. That as a result, the earliest available appointment with a Notary Public was on 25th April, 2025 and that upon affirming her affidavit, the same was filed and served onto the Respondent on the same day.

Therefore, since the Applicant's reason; being a resident of the United 15 Kingdom, for the delay is attributed to the challenge in scheduling an appointment with a Notary Public during school and public holidays, I find that, in the circumstances of this case, the Applicant has shown sufficient cause why she was unable to file her affidavit in reply on time.

In the premises, I find it in the interest of justice to enlarge the time for 20 the Applicant to file her affidavit in reply in *Miscellaneous Application No. 1869 of 2024*. Accordingly, pursuant to **Section 98 of the Civil Procedure Act,** this application is granted.

Therefore, issue No.1 is answered in the affirmative.

Issue No. 2: What remedies are available to the parties?

25 As was held in the case of *Vantage Mezzanine Fund II Patnership Vs Simba Properties Investment Co. Ltd & Others HCMA No. 14 of 2024,* time may be enlarged by validation of a belated step taken in the proceedings where it does not result in abridging, enlarging or modifying any substantive right.

5 Having resolved issue No.1 above in the affirmative and considering that the Applicant filed and served her affidavit in reply in *Misc. Application No. 1869 of 2024* on 25th April, 2025, the same is hereby validated.

Accordingly, the following orders are issued:

- 1. The Applicant's affidavit in reply in respect of *Miscellaneous* - 10 *Application No. 1869 of 2024* filed on 25th April, 2025, is hereby validated. - 2. Costs of this application shall be in the cause.

I so order.

Dated, signed and delivered electronically via ECCMIS this **30th** day of 15 **June, 2025**.

Patience T. E. Rubagumya **JUDGE** 2030/06/2025