Kasangaki Diana v Fulgensia Tumwesigye (Civil Application No. 21 of 2023) [2025] UGSC 27 (26 June 2025)

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 2L OF 2023

(Arising from Court of Appeal Ciuil Application NO. 265 Of 2020) (Arising from Court of Appeal Ciuil Appeal No. 195 Of 2013) (CORAM: MIKT CHIBITA; STEPHEN MUSOTA; CHRISTOPHER MN)RAMA; CATHERINE BAMUGEMEREIRE; MONICA MUGEIITYI, JJ. S. C)

KASANGAKI DIANA APPLICANT

#### VERSUS

# FULGENSIA TUMWESIGYE :::::::: RESPONDENT

#### RULING OF STEPHEN MUSOTA, JSC

This is an application by way of motion brought under Rules 2 (2) 5, 40 (1) and 41 of the Judicature (Court of Appeal Rules) Directions S. I 13-10. The Applicant seeks orders for extension of time within which to file and serve the Record of Appeal in Court of Appeal Civil Appeal No. 195 of 2013 and validation of Supreme Court Civil Appeal No. 15 of2023.

The grounds for the application are set out in the Notice of Motion and the affidavit of the Applicant but briefly state as follows:

- <sup>I</sup> The Applicant lost Court of Appeal Civil Appeal No.195 of 2013 and is desirous of lodging a third appeal to the Supreme Court Uganda - The Applicant sought extension of time to serve her Notice of Appeal vide Court of Appeal Civil Application NO.241 of 2O2 1 which was granted. 11. - The Applicant obtained a certificate of great public or general importance vide Court of Appeal Civil Application NO.265 of 2O2O which was granted on 2.8.2022 ll1. - The Applicant applied for a record of proceedings in Court of Appeal Civil Appeal No 195 of 2O'3 on 6.10.2020 and later on 17.11.2022 which were only availed to him on 8.6.2023 consequent to which she filed a record of appeal to the Supreme Court on 13.6.2023 and served the Respondent. lV. - The decision of the Court of Appeal in Civil Application No. 256 of 2020 was delivered in the Applicants absence on 2.8.2022 when her husband and later herself were ill and on medication v. - The time within which to file a record of appeal to the Supreme Court expired without the Applicant frling the Record of Appeal. vl. - Due to sickness and hospitalization of the applicant and her husband, she was not in touch with her lawyers to pursue the certified record of proceedings and file the Record of Appeal in time. vl1.

- v111. The Applicant has sufficient cause for not having filed the record of appeal in time. - ix. Due to sickness, hospitalization and surgery on her husband, the applicant was unable to instruct her lawyers to file the record of appeal. - x. Upon feeling better andl or getting some improvement, the Applicant instructed her counsel to pursue the Appeal. - xi. The Applicant's Appeal has a high likelihood of success. - xii. The Applicant was granted a certificate of great public or general importance by the Court of Appeal giving her leave to appeal against the points of law which were wrongly decided by the Court of Appeal vide Court of Appeal Civil Application N0 256 of 2O2O - xiii. The application for extension of time to file a record of appeal and for validation of the Applicant's appeal to the Supreme Court has not been inordinately delayed - xiv. The Respondent shall not be in anyrvay prejudiced if the time with in which to file the record of appeal is extended and the appeal validated. - xv. It is just and equitable that the substance of the grievances of the Applicant be heard and decided on merit - xvi. It is in the interest of justice that the Applicants'application be allowed.

The respondent opposes the application and has filed an affidavit in reply to that of the applicant's affidavit as follows:

- 1. That this application is incompetent and lacks merit and rs filed as an afterthought in abuse of the process of Court as it is calculated to defeat the ends of justice in my earlier filed Civil Application N0.03 of 2023, arising from Court of Appeal Civil Appeal No. 195 of 2013 by which I applied to this Honourable Court for an order that the Applicant herein be taken to have withdrawn the Notice of Appeal filed on ttre 22d September 2O2O and be ordered to pay the costs arising therefrom. - 2. In the alternative, that the Notice of Appeal filed by the Respondent (who is the Applicant herein) be struck out on the grounds that an essential step in the proceedings has not been taken within the prescribed time. - 3. That the averments of the Applicant herein in support of this application are fa-lse and contradictory to her earlier affidavit in reply to Civil Application N0.03 of 2023 in which she claimed that her Record of Appeal lodged in the Supreme Court of Uganda on 13th June 2023 was filed in time and that Supreme Court Application NO.3 of 2023 has no merit. - 4. The Applicant should not be permitted to approbate and reprobate at the same time. - 5. No letter requesting for proceedings was ever served upon the Respondent or his lawyers on the 6th October 2O2O as required by law and the time within which the Applicant was a-llowed to file the appeal lapsed without the Applicant taking an essential step in the proceedings.

- 6. The Applicant failed to institute the appeal within the time allowed by the law even when the certificate of great public or general importance was granted by the Court of Appeal of Uganda on the 2nd August 2022 and the Applicant is thus guilty of dilatory conduct - 7. That paragraph 8 thereof is false as Civil Application N0.24 I of 2O2l was only allowed extending the time within which to file Civil Application N0. 265 of 2O2O and to validate the same but not to validate the service of the Notice of Appeal on the Respondent as alleged as such power to validate service of the Notice of Appeal in appeals to the Supreme Court is only vested with the Supreme Court of Uganda. - 8. The record of appeal was llled out of the time prescribed by law and as such the appeal is incompetent. - 9. That the allegations in paragraph 18 ale false as the Respondent has never destroyed any houses belonging to the Applicant nor has the Applicant ever lau{ully bought the suit land. - 10. There has never been Court of Appeal Civil Application No. 256 of 2O2O to which the Applicant and the Respondent herein were ever parties and paragraph 18 is thus false.

## Representation

At the hearing, the Applicant was Kasangaki and the Respondent was represented represented by Mr. Simon by Mr. Samuel

Kiriaghe. Both parties filed their written submissions which were adopted as their legal arguments.

# Applicant's submissions

Counsel submitted that the Applicant was unable to file her appeal against the decision of the Court of Appeal in time, which was delivered in her absence, because of the sickness and hospitalization of her husband and later on herself. Counsel relied on the decision in James Bwogi & Sons Enterprlses Ltd Kampala City Council & Another SCCA No 9 of 2OL7 for the proposition that this court has wide discretion to grant an Applicant leave to file her appeal out of time upon proof of sufficient reason why the appeal was not lodged in time.

Counsel relied on the decision in Guliano Gariggo V Claudio Casadio SCCA No 1 of 2013 for the proposition that where an Applicant has on court record complete documents, which are in proper form save for their late filing, extension of time has the legal effect of validating them or excusing their late filing. The Applicant submitted that on 13.6.2023, they filed a complete record of appeal which was endorsed by the registrar of the court and served on the Respondent on 15.6.2023 and prayed that the same be validated by this court.

Counsel submitted that the Applicant's intended appeal has a high likelihood of success. The Applicant was granted a certificate of great public or general importance by the Court of Appea-l giving her leave to appeal against the points of law which were wrongly

decided by the Court of Appeal vide Court of Appeal Civil Application No 256 of 2O2O. Counsel argued that the Respondent will suffer no prejudice if this application is granted, because the appellant has been at all material times in possession of the suit property.

Counsel relied on the decision in Crane Finance Co. Ltd. us Mqkerere Propertles, Supreme Court Ciuil Application No. 7 of 2OO7, for the proposition that rule 5 of the Rules of this court envisages four scenarios in which extension of time for the doing of arr act authorized or required, moy be granted, namely- before expiration of the limited time; after expiration of the limited time; before the act is done and after the act is done. He argued that the situation in the instant case is a combination of scenario (b) and (d) above and that it is necessary for to seek leave of this court to extend the time for Iiling and service of the Applicant's record of appeal and validation of the appeal to this court to safeguard the Applicalt's right of appeal against the decision of the Court of Appeal. The Applicant was prevented from filing her record of appeal by sickness of her husband Mr. Kasangaki Pantaleo, his surgery in Switzerland and the Applicant's own hospitalization.

# Respondent's submissions

In reply, counsel submitted that the Applicant has not shown any sufficient reason why she did not fiIe the Record of Appeal within the time prescribed by law. As such, there is no lau{ul ground upon which this Court can exercise its discretion to extend the time as

prayed for. Counsel argued that the Respondent had earlier in time applied to this Court to strike out the Notice of Appeal that was filed by the Applicant and the said application is awaiting the decision of this Court. In addition, that this application is supported by the false affidavit of the Applicant dated 15th June 2023 and the said falsehoods were highlighted in paragraphs 4,6,8, 12, 13, and 14 of the Respondent's affidavit in reply dated 2Oth December 2023. Counsel argued that the averments of the Applicant in support of this application are false and contradictory to her earlier affidavit in reply to Civil Application No. 03 of 2023 filed in this Court on the 13th June 2023 in which she claimed that her Record of Appeal lodged in this court on 13th June 2023 was filed in time and that Supreme Court Civil Application No. 3 of 2023 has no merit. The Applicant should not be permitted to approbate and reprobate at the same time.

Counsel submitted that the allegations that the Record of Appeal could not be filed on time owing to the alleged sickness of the Applicant's husband and later her own alleged sickness are all afterthoughts by the Applicant. Counsel argued that whereas Rule 79 (21 of the rules of this court excludes such time as may be certified by the Registrar of the Court of Appeal as having been required for the preparation and delivery to the appellant of that copy, the Applicant in the instant case did not serve a copy of the letter requesting for proceedings of the Court of Appea-l upon the Applicant. The Applicant is thus not entitled to benefit from the

provisions of Rule 79 (2) of the Judicature (Supreme Court Rules) Directions.

The Applicant served a Notice of Appeal in Court of Appeal Civil Appeal No. 195 of 2013 upon the Respondent herein on the 6th day of October 2O2O but did not serve a copy of the letter requesting for proceedings upon the Respondent. Indeed, no evidence of such service has been availed by the Applicant. Counsel further submitted that the Notice of Appeal and consequently the appeal filed by the Applicant is incompetent and should be struck out for failure by the Applicant to take an essential step in the proceedings within the time stipulated by law.

# Analysis

Rule 79 (i) of the Judicature (Supreme Court Rules) Directions SI 13- 1 1 requires that appeals be instituted by lodging <sup>a</sup> memorandum of appeal and the record of appeal within sixty days after filing a notice of appeal.

However, rule 79 (2) states: '

(2) Where an application for a copA of the proceedings in the Court of Appeal has been made within thirtg dags afier the date of the decision against which it is desired to appeal, there shall, in computing the time uithin which the appeal is to be instituted be excluded such time as maA be certified bg the registrar of the Court of Appeal as hauing been reqtired for the preparation and deliuery to the appellant of that copy.

Rule 79 (3) provides:

An Appellant shall not relg on sub-rule (2) unless his or her application for a copg of proceedings rras in writing and a copg utas serued on the Respondent, and the Applicant has retained proofofthat seruice.

Rules 79 (2) and 79 (31 permit an appellant to exclude, from the computation of the 60 days' limit, time taken by the Registrar to prepare and deliver copies of the typed proceedings to the appellant, provided that the application for proceedings was in writing and that a copy of the said letter/application was served upon the respondent.

Upon perusing the evidence on record, there is no doubt that the Notice of Appeal was filed within time and served on the respondent's counsel. The notice of appeal is dated 22"d September 2O2O ar,.d is duly stamped by M/s MRK Advocates on the 6th October 2O2O. The decision against which the applicant seeks to appeal was delivered on 15th September 2O2O. There is a letter requesting for proceedings that was written and delivered to the Registrar of the Court of Appeal within the time of 30 days from the date the decision was given by the court. It is indicated that this letter was filed in the Court of Appeal on 7'h October 2020.

The same letter marked annexure 'C' has a stamp of Isaac Mpanga with no date. However, it is not clear whether Mpanga was counsel on record and this is a fact that has not been clarified by either party. The Applicant in her affidavit in rejoinder paragraph <sup>6</sup> indicates that the Notice of Appeal and the letter requesting for the record of proceedings were filed and served on the Respondent's counsel.

On the record, there is a letter informing counsel for the applicant that the record of proceedings was ready. It is dated Sth June 2023. This would imply that the registrar took over two years and eight months to prepare the record of proceedings which fault cannot be visited on the Applicant. Based on the law mentioned above, the applicant could have started computing the 60 days envisaged under rule 79 (1) from the date of receipt of the record of proceedings and by virtue of rule 4 (1), time started running from 8th June 2023. However, owing to the facts stated in the Applicant's affidavit in support and the affidavit in rejoinder, the Applicant was unable to file the Record of Appeal within time.

While interpreting the import of Rule 79 (31 of the Judicature (Supreme Court) Rules SI 13-11, Katureebe, JSC (as he then was) in Tropical Africa Bank Ltd v Grace Were Muhwana l2Ol2l UGSC 8 stated:

"It is noteworthg that the words used in Rule 79(3) do not prohibit reliance on Rule 79(2). It sta/es thot the appellant would not be entitled to relg on 79(2), i.e. he has no automatic ight. But presumablg the appellant mag seek court interuention under Rule 5. /t is /his prouision that has prompted this application."

Rule 5 of the Judicature (Supreme Court Rules) Directions S. I 13-11states:

"The court mag, for sulficient reason, extend the time prescribed bg these Rules or bg ang decision of the court or of the Court of Appeal for the doing of ang act authorised or required bg these Rules, whether before or afier the expiration of that time and uhether before or afier the doing of the act; and any reference in these Rules to ang such time shall be construed as <sup>a</sup> reference to the time as so ertended."

The power granted to this court under this Rule 5 is discretionary and can only be exercised upon the applicant satisfying court that there is sufficient cause for the extension of time.

In Kananura v. Kaijuka (Civil Reference No. 15 of 2()161 l20l7f UGSC 17, the Supreme Court emphasized that the discretion to extend time under Rule 5 is unfettered but must be exercised judiciously. The Court reiterated that "sufficient reason" is not defined in the Rules and must be determined based on the circumstances of each case. The Court cited with approval the decision in Boney M. Katatumba v Waheed Karim, [2OO8l UGSC 3, Mulenga, JSC while interpreting rule 5 of the Supreme Court rules stated:

"Under r 5 of the Supreme Court Rules, the court mag, for sulficient reason, ertend the time prescribed bg the Rules. What constitutes "suffi.cient reason" is lefi to the Court's unfettered discretion. In this context, the court will accept either a reason

that preuented an applicant from taking the essential step in time, or other reasons uhg the intended appeal should be alloued to proceed though out of time. For example, an application that is brought promptlg will be considered more sgmpatheticallg than one that is brought afier un explained inordinate delay. But euen where the application is undulg delaged, the court maA grant the ertension if shutting out the appeal maA appear to cause injustice."

The Applicant must show sufficient reason for the delay, which is the most critical requirement and is assessed on a case-by-case basis. Courts have interpreted "sufficient reason" to include factors such as: illness or incapacity of counsel or the party, mistake of counsel and procedural defects or delays outside the applicant's control. See Rosette Klzito v. Administrator General & Others (Supreme Court Ctvil Application No. 9 of 1986).

This Court has held that "sufficient cause" must relate to the inability or failure to take the necessaqr step within the prescribed time. If the applicant is found to be guilty of dilatory conduct, time will not be extended. The Court has also noted that while it's not necessary for the applicant to establish that the appeal has good chances of success, if such fact is established, the Court will normally take it into account. See Mulindwa v. Kisubika [2()181 UGSC 38

The Applicant in her affidavit contends that the failure to serve the respondent the letter requesting for proceedings was by virtue of her husband's sickness and surgery in Switzerland coupled with her subsequent sickness which incapacitated her to pursue the appeal within time.

In light of the circumstances presented, and upon careful consideration of the affidavit evidence and submissions of counsel, I am satisfied that the Applicant has demonstrated suflicient reason warranting the grant of an extension of time. The delay has been adequately explained, and it has not been occasioned by inexcusable negligence or deliberate disregard of court procedure. It is, therefore, in the interest of justice that Applicant's appeal is heard.

# In Horizon Coaches Ltd v Edward Rurangaranga & Anor [2OO9l UGSC 7, Katureebe, JSC (as he then was) stated:

"Article 126 (2) (e) of the Constitution enjoins courts to do substantiue justice without undue regard to technicalities. This does not meqn thot courts should not haue regard to technicalities. But where the effect of adherence to technicalitg mag haue the effect of denging a partg substantiue justice, the Court should endeauor to inuoke that prouision of the Constitution."

For the above reasons, I a-llow this application and validate the appeal, Supreme Court Civil Appeai No. 15 of 2023, so as to allow

the parties proceed as soon as possible to hearing of the sarne. Costs of this application shall abide the outcome of the appeal.

By this decision, Supreme Court Civil Application No. 3 of 2023 has been overtaken by events. Supreme Court Civil Appeal No. 15 of 2023 is hereby va-lidated and shall be fixed for hearing within the court schedule.

I so order.

Dated this sbff day of. <sup>2025</sup>

.@-";

STEPHEN MUSOTA JUSTICE OF THE SUPRTME COURT

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA **AT KAMPALA**

**CIVIL APPLICATION NO. 21 OF 2023**

(Arising from Court of Appeal Civil Application NO. 265 Of 2020) (Arising from Court of Appeal Civil Appeal No. 195 Of 2013)

(CORAM: CHIBITA: MUSOTA: MADRAMA; BAMUGEMEREIRE; $MUGENYI, JJ. S. C)$

KASANGAKI DIANA :::::::::::::::::::::::::::::::::::

#### VERSUS

#### FULGENSIA TUMWESIGYE ::::::::::::::::::::::::::::::::::::

#### RULING OF MIKE CHIBITA, JSC

I have had the benefit of reading in draft the ruling prepared by my learned brother, Hon. Justice Stephen Musota, JSC and I agree with his reasoning and his conclusions that this application should be allowed. I also agree with the orders he has proposed.

As all the other members of the panel agree, this application is allowed on the terms as proposed by the learned Justice.

Dated at Kampala this....................................

ustice Mike Chib

JUSTICE OF THE SUPREME COURT

Delivered in Open Court this 26th day of June 2025


#### THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA **CIVIL APPLICATION NO. 21 OF 2023**

(Arising from Court of Appeal Civil Application N0. 265 Of 2020) (Arising from Court of Appeal Civil Appeal No. 195 Of 2013)

## CORAM: {Chibita; Musota; Madrama; Bamugemereire; Mugenyi JJSC}

#### **PARTIES**

## KASANGAKI DIANA ::::::::::::::::::::::::::::::::::: VERSUS FULGENSIA TUMWESIGYE ::::::::::::::::::::::::::::::::::::

#### IUDGMENT OF CATHERINE BAMUGEMEREIRE JSC

I have benefitted from studying the draft opinion of my learned brother Stephen

Musota JSC. I agree that the appellant has demonstrated sufficient cause for leave

to appeal out of time. I further agree that Rules, as handmaidens, should not be

invoked to defeat substantive justice. I would allow the application for the above

grounds and for other reasons my learned brother advances.

**Catherine Bamugemereire** Justice of the Supreme Court

Delivered in open Court this 26th day of<br>June 2025 by the Registrar, SC.


THE REPUBLIC OF UGANDA

### THE SUPREME COURT OF UGANDA AT KAMPALA

(Coram: Chibita, Musota, Madrama, Bamugemereire & Mugenyi, JJSC)

#### **CIVIL APPLICATION NO. 21 OF 2023**

(Arising from Civil Appeal No. 195 of 2013 & Court of Appeal Civil Application No. 265 of 2020)

#### **BETWEEN**

<table>

DIANA KASANGAKI APPLICANT

AND

<table>

FULGENSIA TUMWESIGYE RESPONDENT

$\mathbf{1}$

# RUL]@

<sup>I</sup>have had the benefit of reading in draft the judgment of my learned brother llusota, JSC in this Appeal. <sup>I</sup>agree with his findings and the conclusion therein that the Ruling succeeds and Civil AppealNo. 195 of 2013lhal is pending before this Court is duly validated.

Dated and delivered at Kampala this %IL day <sup>2025</sup>

(

Monica K. Mugenyi Justice of the uoreme Court