Isingoma and Another v Asiimwe and Others (Civil Application No. 33 of 1997) [1999] UGCA 72 (4 June 1999)

## THE REPTIBLIC OF TIGANDA IN THE COTIRT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

# COR{M: HON. MR. JTISTICE G. M. OKELLO, J. A.

i I

### CIVIL APPLICATION NO.33 OF I997.

#### BET\1'EEN

### KEZIA ISINGOMA & ANOR: : : : : : : : : : : :: : : :: : : : :: :: : : :APPELLANT

#### AND

# PETER ASIIMWE & OTHERS: : : : : : : : : : :: :: : : : : : :: : : :RESPONDENTS RULING OF G.]VI. OKELLO. J. A.

This application was brought under rule 4 of the Court of Appeal Rules, Directions, 1996 seeking extension of time within which to file Notice of Appeal. The application was supported by an affidavit sworn by Enock Rukidi, Counsel who was duly instructed to handle the matter.

This is a case of land dispute. When the High Court delivered its judgment at Fort Portal on2318194, the applicant was dissatisfied with it and instructed her lawyers to appeal against it. IM/S Hunter & Greig Advocates lodged Notice of Appeal on2918194. This was within time. Thereafter, they started negotiations with the opposite party with a view to a settlement out of court. In the course of the negotiations Mr. Jonathan Kateera who was handling the applicant's case died. Then the applicant instructed another firm I\4/S Kasinye, Byaruhanga & Co. Advocates, This firm continued with the negotiations on behalf of the applicant. When the negotiations proved futile,

the time within which to file the record of appeal had expired and the court system had also changed. Appeal from the High Court had to go to the Court of Appeal first. Hence this application.

t

The sole ground ofthe application is that the applicant was prevented from taking the necessary step within time due to the fault of her counsel who despite having been instructed in time failed to file the appeal in time. That this constituted sufficient cause.

The respondents opposed the application on the ground that the applicants have shown no sufficient cause to justify extension of tirne.

It is now established by numerous authorities that this court has discretion to extend time under rule 4 of the Court of Appeal Rules Directions, 1996, where sufficient cause is shown. The sufficient cause must relate to the inability to take the necessary step within the prescribed time. (See: Clouds I0 Ltd, Civil applicotion No. 35 of

ln the instant case, the applicant had instructed h&lawyers within time to appeal against the decree of the lower court. Notice of Appeal was infact lodged within time but the lawyers failed to pursue the appeal issue side by side with the negotiations for a possible amicable settlement. I agree with Counsel for the applicant that it was the fault of the applicant's lawyers not to have filed the record of appeal in course of the negotiations because they ought to have known that time was running against them. It has been repeatedly held by Supreme Court and the defunct Court of Appeal for Eastern Africa that the applicant's Counsel's error was not necessarily a bar

to his obtaining an extension of time (See Essaji and others Vs Solanki [1968] EA 218; Ben Kiwanuka Vs Haji Nurdin Matovu, Civil application No. 17 of 1990 (SC) unreported). The error of Counsel in this case therefore cannot be visited on the applicant. I find that the applicants were not guilty of any dilatory conduct. In my view, they have shown sufficient cause to justify the extension of time. The application is granted with costs in favour of the applicant.

Dated at Kampala this $4$ th day of $2$ un $2$ 1999.

$\mathcal{C}$ G. M. OKELLO **JUSTICE OF APPEAL.**