Kabwijukya and Another v Katusabe (Miscellaneous Application 4 of 2024) [2024] UGHC 471 (31 May 2024)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT HOIMA**

#### **MISC. APPLICATION NO. 04 OF 2024**

(Formerly MSD Misc. Application No.134 of 2019 (Arising from Civil Appeal No.61 of 2016) (Arising from Land Civil Suit No.02 of 2016)

**1. KABWIJUKYA FLORA 2. MBONEKO TEREZA :::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

**KATUSABE MARGRET ::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

*Before: Hon. Justice Byaruhanga Jesse Rugyema*

### **RULING**

- [1] This is an application brought under **O.43 rr.4,16 & O.52 rr.1,2 & 3 CPR and S.98 CPA** seeking for orders that: - 1. **Civil Appeal No.61 of 2016** which was dismissed for want of prosecution be re-admitted and /or reinstated and the same be heard on merit. - 2. Execution of the decree and all orders arising from **Land Case No.002 of 2016** be set aside/stayed until the final determination of **Civil Appeal No.61 of 2016** or until further orders of the court. - 3. Costs of the application be provided for. - [2] The Application is supported by the affidavit of **Kabwijikya Flora,** the 1 st Applicant and briefly the grounds are; - 1. That **Land Case No.002 of 2016** between the Applicants and the Respondent was heard and determined in favour of the Respondent in the absence of the Applicants.

- 2. The Applicants appealed to the High Court of Uganda at Masindi Vide **Civil Appeal No.61 of 2016.** - 3. After filing the appeal, the Applicants hired Kaggwa-Owoyesigire & Co. Advocates to represent them in the appeal but the appeal was dismissed for want of prosecution. - 4. The dismissal was as a result of the mistake of counsel which should not be visited on an innocent litigant. - 5. The Appeal has high chances of success, the application has been brought without delay and that it is in the interest of justice that the Application be granted. - [4] The Respondent filed an affidavit in reply deposed by **Katusabe Margaret**, wherein the grounds in opposition of the Application are briefly stated thus. - 1. That right from the trial court, the Applicants have not shown any interest in appearing for the hearing of **Civil Suit No.02 of 2016** let alone prosecuting **Civil Appeal No.61 of 2016** which led to the delivery of an exparte judgment and the proper dismissal of **Civil Appeal No.61 of 2016** for want of persecution respectively. - 2. That the Applicants erroneously filed **Civil Appeal No.61 of 2016** to fault the trial court in a matter in which they did not enter appearance instead of applying to set aside the *exparte* judgment. - 3. That **Civil Appeal No.61 of 2016** which is sought to be reinstated has no likelihood of success as it was erroneously filed. - 4. Should court be inclined to allow the Application, the Applicants ought to therefore be condemned to costs which the Applicants can pay as a condition for

reinstatement so that they do not inconvenience the Respondent by her wasting time through creating unnecessary expenses.

# **Background**

- [5] As per the lower court record, the Respondent/plaintiff as a beneficiary to the estate of their grandmother, the late **Kachweka Felista** sued the Applicants/defendants for her share in the estate vide **Hoima Chief Magistrate C. S No. 02 of 2016.** The plaint was served onto the defendants but they failed and or refused to file a defence. The case was fixed for hearing *exparte,* and the plaintiff formally presented her case in court in the absence of the defendants. On the **7/12/2016,** court entered an *exparte* judgment in favour of the plaintiff. - [6] Consequently, the Applicants/defendants filed an appeal vide **Civil Appeal No. No.061 of 2016.** The Applicants' Civil Appeal was dismissed for want of prosecution hence the present Application for its reinstatement. - [7] Counsel for the Applicants submitted as a ground for grant of this Application that the Applicants engaged the services of a lawyer from **Kaggwa-Owoyesigire & Co. Advocates** to pursue the appeal but the lawyer did not follow up leading to the dismissal of the case. He relied on the authority of **Banco Arabe Espanol Vs Bank of Uganda, SCCA No.8/1998** and contended that the lawyers failed to secure a hearing date which amounted negligence or oversight or mistake of counsel and the same ought not to be visited on the applicants. - [8] Counsel for the Respondent on the other hand submitted in reply that the Applicants' appeal was dismissed under **O.43 r.31(1)** and **O.17 r.6 CPR** for failure to take action after a period of 2 years. That in the first instance, the Applicants right from

the trial court were reluctant to defend themselves which led to the *exparte* judgment. **2ndly**, that the Applicants ought to had applied to set aside the *exparte* judgment and not file an appeal thus adopted a wrong procedure.

[9] **O.9 rr.12 & 27 CPR** provide for a remedy to a defendant who is aggrieved by an *ex parte* judgment and order:

## *"Rule 12*

*Where judgment has been passed pursuant to any of the preceding rules of this order…..the court may set aside or vary the judgment upon such terms as may be just."*

- *"Rule 27. In any case in which a decree is passed ex parte against a defendant, he or she may apply to the court by which the decree was passed for an order to set aside; and if he or she satisfies the court that the summons was not duly served, or that he or she was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him or her upon such terms as to costs, payment into court, or otherwise….."* - [10] In this case, the judgment in the lower court was ex parte and as rightly submitted by the Respondent's counsel, the applicants ought to have applied to set aside or vary the *exparte* judgment dated **15/02/2019,** instead of appealing against the judgment thus clearly adopting a wrong procedure. The right procedure to take was filing an Application under **O.9 rule 27 CPR** and in case the ruling thereof is dissatisfactory, thereafter prefer an appeal. From the foregoing, it follows that the Applicants' appeal has no likelihood of success.

[11] The Applicants in this Application proceeded under **O.43 r.16 CPR** for re-admission of the appeal, that they were prevented by "sufficient cause". As to what constitutes sufficient cause, in the case of **Boney M. Katatumba Vs Waheed Karim Civil Application No.27/2007 (SCU),** Mulenga JSC observed thus;

*"What constitutes "sufficient reason" is left to the court's unfettered discretion. In this context the court will accept either a reason that prevented an applicant from taking the essential steps in time, or other reasons why the intended appeal should be allowed to proceed though out of time. For example an application that is brought promptly will be considered more sympathetically than one that is brought after unexplained inordinate delay. But even where the application is unduly delayed, the court may grant the extension if shutting out the appeal may appear to cause an injustice."*

[12] In this application, the Applicants blame their lawyer or allege mistake of counsel in failing to secure a hearing date for the appeal. In my view, the Applicants were under duty to find out from court and or their counsel the progress of the appeal. They ought to have shown interest as litigants and not leaving the entire duty to their counsel alone. They have not demonstrated that they were on toe with their counsel to ensure the progress of their appeal. I find that the Applicants were truly not interested in prosecuting their appeal. If they were, they would not have sat back and not take any positive step for a period of 2 years, that is, from **21st February 2017** when the memorandum of appeal was filed, to **15th February 2019** when the appeal was dismissed. I find no proof from the Applicants what steps they, themselves took after their counsel had filed the Memorandum of appeal. Failure to secure a date in a matter cannot be taken simply as the mistake or tardiness of the counsel. The applicants were simply not interested in the pursuance of their appeal as evidenced of their failure to seriously follow up their own case.

[13] Besides, I find that the Applicants' lack of interest and seriousness dates way back in the lower court. The trial Magistrate in the **ex parte judgment at page 1** noted thus;

> *"Four affidavits of service are on court record deponed on 28/1/2016, 4/2/2016, 11/4/2016 and 7/7/2016 respectively. The matter was fixed for hearing ex parte after court entered a default judgment for formal proof, but still served the two defendants to appear as shown on the affidavit deponed on 7/7/2016, but still the defendants adamantly refused to appear and defend…."*

- [14] From the totality of the above, I find that the Applicants merely had no interest in the pursuance of their appeal and therefore no sufficient reason has been advanced by the Applicants for re-admission of the appeal. Besides, the Applicants having adopted a wrong procedure and filed an appeal instead of applying to set aside the *exparte* judgment in accordance with **O.9 r.27 CPR**, it follows that the appeal the Applicants seek to reinstate has no likelihood of success. - [15] As a result, the Application has no merit, it is accordingly dismissed with costs to the Respondent.

Dated at Hoima this **31st day** of **May, 2024.**

**………………………………………. Byaruhanga Jesse Rugyema JUDGE**