Kagoda Rogers and Another v National Agricultural Advisory Services (Miscellaneous Application No. 194 of 2024) [2025] UGHCCD 68 (13 June 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS APPLICATION NO.194 OF 2024 (ARISING OUT OF HIGH COURT CIVIL SUIT NO. 279 OF 2021)

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KAGODA ROGERS TALENT WALLS LTD :::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS

### VERSUS

NATIONAL AGRICULTURAL ADVISORY SERVICES :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS

# BEFORE: HON. JUSTICE SIMON PETER M. KINOBE

# RULING

## BACKGROUND

This application was brought under Sections 33 of the Judicature Act Cap. 13 and Section 98 of the Civil Procedure Act and Order 51 Rules 1, and 2 of the Civil Procedure Rules, S. I 71-1(as amended) for orders that;

- a) Civil suit 279 of 2021 which was dismissed be reinstated. - b) The Costs of this Application be provided for.

13th June 2025

The application is supported by an affidavit sworn by Kazibwe Achilles whose grounds are briefly that;

- a) The applicant filed Civil suit 279 of 2021 in this Honorable Court. - Page | 2 b) The parties appeared before the registrar and were instructed to file a joint scheduling memorandum; trial bundles and witness statements and they complied. - c) A hearing date was accordingly requested by letter and the matter was fixed for hearing. - d) Counsel by letter requested for a nearer date considering that the parties had never appeared before the Honorable Court. - e) A hearing date was fixed but counsel was not served, and neither was it indicated on ECCMIS. - f) When the matter came up for scheduling it was dismissed due to the nonattendance of the parties. - g) The application was made without delay. - h) It was just and equitable that the same be granted.

The Respondents did not file an affidavit in reply.

#### REPRESENTATION

The applicants were represented by Masiga Collin while the respondent was unrepresented.

#### ISSUE FOR DETERMINATION

Whether the applicant is entitled to a grant of the orders and reliefs sought.

#### DETERMINATION

13th June 2025

I have had the opportunity of reading the application, the attendant affidavit in support along with the submissions of the applicant.

Page | 3 I note that the respondent did not file an affidavit in reply, nor did he participate in these proceedings.

While I agree that a non-contested application would lead to the presumption that the respondent fully accepts what is stated for the applicant and has no contest to the orders sought and that the same would ordinarily lead to the granting of all the prayers in the application, (see UGAFIN Ltd Vs Beatrice MA No. 682 of 2014), I find that, it is important for court to interrogate the merits thereof before granting the same to avoid a mismatch with the law and the potential injustice in setting the wrong precedent.

In order to determine this application, I have had the opportunity of looking at the record of proceedings. This matter was dismissed under Order 9 rule 17 Civil Procedure Rules 71-1.

#### Order 9 rule 17 of the Civil Procedure Rules 71-1 provides that: -

*"Where neither party appears when the suit is called on for hearing, the court may make an order that the suit be dismissed".*

This order allows court to dismiss a suit if neither party appears when the suit is called on for hearing. Such was the case in this matter.

Order 9 rule 18 Civil Procedure Rules 71-1 allows this court to set aside such dismissal on the plaintiff's application if he or she proves that there was sufficient cause for his or her non-appearance It provides that; -

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"*Where a suit is dismissed under rule 16 or 17 of this Order, the plaintiff may, subject to the law of limitation, bring a fresh suit or he or she may apply for an order to set the dismissal aside; and if he or she satisfies the court that there was sufficient cause for his or her not paying the court fee and charges, if any, required within the time fixed before the issue of the summons or for his or her nonappearance, as the case may be, the court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit"*. (also see Crown Beverages Vs Stanbic Bank (u) Ltd MA 0181 of 2005)

Sufficient cause refers to a factor which caused the parties failure to take a necessary step in litigation within the prescribed time. It refersto a factor that is beyond the control of a litigant or which arises due to the occurrence of an event which could not have been contemplated or reasonably foreseen by him or her.

Because of the varying circumstances of each case, what amounts to sufficient cause is left to judicial discretion and determination based on the facts and the circumstances surrounding each particular case. (see Ms Tad

Beer Trading Centre Ltd Vs Caroline Blackburn Amero MA 0571 of 2024) In the case of The Registered Trustees of the Archdiocese of Dar-es-Salaam v The Chairman Bunju Village Government & Ors Civil Appeal No 147 of 2006 it was stated that; -

"*sufficient cause is proven if a party and his advocate show that he and his lawyer did not act in a negligent manner ……………………………………".*

In National Insurance Corporation Vs Mugenyi and Co Advocates [1987] HCB 28, court observed that;

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"*In considering whether there was sufficient cause why Counsel for the applicant did not appear in court on the date the application was dismissed, the test to be applied in cases of that nature was whether under the circumstances the party applying honestly intended to be present at the hearing and did his best to attend."*

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According to paragraphs 4, 5, 6, 7, 8 9, 10, 11, 13, 14, 15, and 16 of the affidavit of Mr. Kazibwe Achillesin support of the application, the applicant states that; -

- I. Civil Suit No. 279 of 2021 was fixed for directions and the parties appeared before the Registrar for scheduling on the 21st day of December 2021. - II. The parties duly filed their respective witness statements, a joint trial bundle and a joint scheduling memorandum. On the 31st day of July 2023 the applicants wrote to the court requesting a hearing date. The applicants were informed that the matter was fixed for hearing on the 25th day of March 2024. - III. Considering the duration of time to wait and the fact that all of the pretrial motions had been concluded, counsel in personal conduct on the 18th , October 2023 wrote a letter to court requesting for a nearer date. - IV. The letter to court was never responded to.

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V. On the 12th day of March 2024, counsel attended court in preparation for the upcoming date, he discovered that the matter had been fixed for scheduling on the 11th March 2024 and that the same had been dismissed for nonappearance under Order 17 rule 9.

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VI. None of the parties had been served with the said date and neither was it indicated on ECCMIS. This anomaly was brought to the attention of court through a letter dated 4th April 2024. Out of vigilance, the applicants also went ahead to file this application to set aside the dismissal.

It is clear from the above that the applicant has taken all steps to prosecute his matter right from filing, scheduling and pursuing a hearing date. The applicant has appeared at all times he was required to appear in Court save for the day the suit was dismissed. I also note that there was an error relating to the hearing notices. The hearing notices were issued a day after the appointed time for hearing. As a result, the applicants did not attend court when HCCS 279 of 2021 was called and the same was dismissed for want of prosecution under Order 9 rule 17.

I note that the applicant and his counsel were not negligent in any way, nor did they relegate their duty to attend to court proceedings.

The applicant could not be expected to know about the hearing of the suit without being served with hearing notices notifying him of the date of hearing of the suit as is in this case. Therefore, the non-appearance was not out of their own making.

13th June 2025

Accordingly, I find the foregoing to be sufficient cause to reinstate High Court Civil Suit No 279 of 2021.

Page | 7 In consideration of the foregoing, the application succeeds with the following orders;

- a) The dismissal order in High Court Civil Suit No. 279 of 2021 is hereby set aside - b) High Court Civil Suit No 279 of 2021 be and is hereby reinstated to be determined on its merits. - c) No orders as to costs.

I, so order

…………………………………………………

SIMON PETER M. KINOBE

JUDGE

DATE: 13th June 2025