Katurature and Another v Karegyera and 3 Others (Civil Application No. 128 of 2002) [2003] UGCA 37 (28 February 2003)

Full Case Text

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

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#### CORAM: HON. MR. JUSTICE G. M. OKELLO, JA $\overline{5}$

### CIVIL APPLICATION NO. 128 OF 2002

#### **BETWEEN**

1. JOHN KATURATURE 2. ERIASAF KATSIGAIRE ) :::::::::::::::::::::::::::::::::::

#### AND

| 15 | | | | |----|-----------------|--------------------|--| | | 1. KAREGYERA | | | | | 2. KITAATIRE | | | | | 3. KAKOMBE | RESPONDENTS | | | | 4. THE TRUSTEES | | | | 20 | | | |

(Misc. Application arising from High Court Civil Appeal No. 0014 of 1993, in **Mbarara Court Registry**)

#### RULING OF THE COURT 25

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By this application, the applicants sought an order of this Court to extend the time within which to lodge a notice of appeal against the decision of the High Court in Civil Appeal No. 14 of 1993. Though the Notice of Motion 30 does not specifically say so, the application must have been brought under rules 4 and 42 of the Rules of this Court.

Briefly, the applicants had a long legal battle with the respondents in 35 trespass over a piece of land comprised in Leasehold LWM/5918 Vol. 981. Folio 2 which the applicants claimed they were its joint proprietors. The applicants lost the battle all along from the courts of Magistrate Grade ll. Chief Magistrate and on a further appeal to the Hrgh Court. The High Court sitting at Mbarara dismissed the appellants appeal on 7h October. 2OO2. hence this application.

The grounds on which the application was based were stated to be:-

- \*(1) That the judgment in the said appeal was delivered by the High Court at tbarara on 76 October,2OO2 and the applicants who are illiterate were advised and they did believe that they had 30 days within which to appeal. - l2l That it is only when they approached M/S Tusasirre & Co Advocates that the applicants were informed the true period within which to file the appeal had erpircd. - (3) That they were, in the circumstances prevented by Sufficbnt Gause from taking the necessary steps. - (4) That the intended appeal stands a very high chance of success 20

The application was supported by an affidavit of John Katurature. the first applicant. swom on 27 - 11 - 2OO2 There is also an affidavit in reply swom by George Karegyera. the first respondent. on 20h day of February. 2003 25

The only ground that can be discerned from those listed above as grounds is that the applicants who are illiterate were wrongly advised/or not advised as to the time within which to commence their appeal process against that decision of the High Court That is derived from paragraph 4 of the supporting affidavit of the deponent which states:-

"That although we wene represented by a lawyer,

tr. Katembeko, whom we informed that we were desirous of appealing against ttre said decision, the said Hr. Katembeko 10 did not advise us that the law required us to file a Notice of Appeal wittrin 14 days of the judgment and since, in the appeal to the High Court we had been told we had 30 days within which to appeal, we thought that even in the instant appeal, we had a similar period within which to file Notice of Appeal".

Mr Tusasirue. leamed counsel for the applicants. argued that the applicants were illiterate and ignorant of the rule of procedure Failure of Mr Katembeko. who had represented them on that appeal in the High Court. to advise them after the judgment about the time required to 20 commence their appeal process constituted a sufficient cause to justrfy grant of the extension sought. He added that the applicants had brought thrs application without any undue delay after leaming that time had run out against them

Mr. Mwene. Kahima. leamed counsel for the respondents. opposed the application. He contended that there rs no evidence that the applicants had instructed their former lawyers on the further appeal. He also rejeded the 25

argument that the applicants brought this application without delay when they had taken one month and two days in a matter which required only 14 days

5 Rule 4 of the rules of this Court grves this Court wide discretion in granting extension of time within which to take a particular step required by the Rules. Like any other judicial discretion. this discretion must be exercised judicially and on sound pnnciple. lt is established that this discretion is exercised in favour of the applrcant when he/she nas stwn by evidence I 10 sufficient c€ruse The sufficient cause must relate to the failure to take the particular steps in time. (See tugo vs UYanjiri (1970) EA 481).

The applicant must show that the delay was not caused or contributed to by his dilatory conduct (see Shanti ys Hundocha and Others (1973)EA 15 2Ol). For example that he/she has not delayed in instructing his lawyers (see Alhaii Zira,ba Balyejusa vs Development Finance Co. Ltd., Civil Application No. 3l of 2fl)0, Court of Appeal of Uganda unreported)

ln the instant case. the applicants stated in the supporting affidavit that they 20 had informed their lawyer who had represented them on the appeal in the High Court. of their desire to appeal against that decision Mr. Tusasirue argued that the lawyer should have. upon that information. advised the applicants about the time within which they were to commence their appeal prooess rf they wanted to appeal With respect to counsel. I do not agree 25 The lawyer had no such obligation as that was not an instruction. lf the applicants wanted his services on a further appeal they would have

instruded him. Merely informing the lawyer of their desire to appeal was not enough to cloth the lawyer with responsibility to give out that advice

Had they told the lawyer.

(

# "We ar€ dissatisfted with this judgment please commence appeal process against at on our behalf'

would have been difierent That would have amounted to asking the 10 lawyer to act on their behatf

ln the circumstances. I find that the applicants have not shown sufficient cause to lustrfy grant of the extension sought. They have not shown that they were blameless for the delay

ln the result. the application is dismissed with costs to the respondents

wtk Dated at Kampala this day of {a,L rYtt:..j 2oo3.

20 ()m a!t \,q\-A--O Okello

JUSTICE OF APPEAL