Keirimasi Kedress v Vasta Nyamukazi and Others (Civil Miscellaneous Application 1 of 2024) [2025] UGHC 355 (10 April 2025)

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

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

# **CIVIL MISCELLANEOUS APPLICATION NO. 0001 OF 2024 (Arising from Civil Suit No. 0115 of 2015)**

10 **KEIRIMASI KEDRESS**::::::::::::::::::::::::::::::::::::::::::::::::::::**APPLICANT**

### **VERSUS**

### **1. VASTA NYAMUKAZI**

- **2. TUSAASIRWE MAGRET** - **3. LYDIA KABEISAKI**::::::::::::::::::::::::::::::::::::::::::::::::**RESPONDENTS**

## 15 **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

### **RULING**

The Applicant brings the instant application by Notice of Motion under Section **79(1)** and **98** of the **Civil Procedure Act** and **Order 51** of the **Civil Procedure Rules** seeking Orders for leave to extend time within which to appeal and that

20 provision be made for costs.

The grounds upon which this application is premised is that the Applicant was prevented from appealing in time by sufficient cause because there was no notice for delivering of the Judgment that was delivered on 23/11/2023. That despite the Judgment being delivered in the presence of Counsel for the Applicant she never

25 told her the results and the Applicant only came to know of the Judgment when she was served with the decree on the 23/12/2023 and the intended appeal has high chances of success as out lined in the intended Memorandum of Appeal.

The application is supported by the affidavit of the Applicant who expounds on the grounds of Appeal.

5 The fourth Respondent filed an affidavit in reply to the application objecting to the same that it was devoid of merit, an abuse of Court process and that it ought to be dismissed with costs.

**Representation.**

At the hearing of this application Messrs Bikangiso & Co. Advocates appeared for 10 the Applicant while Messrs Beitwenda & Co. Advocates represented the respondents.

Counsel in this matter proceeded by way of written submissions.

**Brief submissions of Counsel for the Applicant.**

It is the submission of Counsel for the Applicant that no notice of delivery of 15 Judgment was served on the Applicant pertaining to the Judgment that was delivered on the 23/12/2023 and that the same has not been rebutted by the Respondent. Furthermore, that the Applicant avers that when the case was fixed for Judgment her lawyer never informed her and even when Judgment was delivered on 23/11/2023 she was not informed about the same.

20 That the Applicant only learnt of the delivery of the Judgment on 23/12/2023 when she was served with a decree.

It is the submission of Counsel that mistake of Counsel or negligence of Counsel should not be visited upon a vigilant litigant. To this effect Counsel relies on the decision in **Maru Kyamulabi versus Ahamed** and **another (1980) HCB 11.**

5 It is also the contention of Counsel that the Applicant's appeal has a high chance of success as per the intended Memorandum of Appeal and prays that the instant application is allowed.

**Brief submissions of the Respondent**.

It is the submission of Counsel for the Respondent that the position for an 10 Applicant for an extension of time is entirely different from that of an Applicant for leave to appeal and that the former is concerned with showing sufficient reason why she should be given more time and the most persuasive reason is that the delay has not been caused or contributed to by the dilatory conduct of the Applicant.

15 To this effect Counsel relies on the decision in **Shanti versus Hindocha** and **others (1973) EA 207.**

Counsel contends that the purported sufficient cause pleaded by the Applicant is that she wasn't notified of the day when Judgment was delivered but that she admits that her lawyer from Legal Aid Project was present when the Judgment 20 was delivered and that this amounts to constructive knowledge of the decision that she intends to appeal out of time.

It is also the argument of Counsel that the Applicant intends to mislead the honourable Court in pleading that it was the mistake of Counsel not to inform her that Judgment was delivered and that the Applicant ought to have been proactive 25 and vigilant just like any other Court user ought to have been.

Counsel for the Respondent therefore prays that the instant application is dismissed with costs.

5 **Determination.**

I would agree with the Respondents that for the instant application to succeed the Applicant must prove/satisfy this Court that she was prevented by sufficient cause from adhering to the time set by the inability to take a particular step in the first instance.

10 **See Executrix of the Estate of the late Namatovu versus Mary Namatovu (1992-93) HCB 85.**

What constitutes sufficient cause was defined in the **Kenyan case of Gideon Mosa Onchwati versus Kenya Oils Co. Ltd and another [2017] KLR 650** as follows:

15 "*It is difficult to attempt to define the meaning of the words 'sufficient cause' it is generally accepted however that the words would receive a liberal construction in order to advance substantial justice when no negligence, or in action or want of bonafides is imputed to the Appellant"*

It is the averment of the Applicant that Judgment was delivered on 23/11/2023 in

20 the presence of her advocate but that she did not know of the delivery date or the outcome of the same.

It would appear that the Applicant is truthful at least in as far as her being absent at the delivery of the Judgment is concerned. This fact is not controverted by the Respondent. I therefore accept this to be true.

25 The above fact notwithstanding the Applicant was ably represented by Counsel and as such the claim that she was not served with a Judgment notice is a none 5 starter and doesn't help her cause. The Applicant's former lawyer is not party to this application and as a result it is impossible for this Court to verify the claims of the Applicant that information relating to the delivery of the Judgment was never made known to her by the advocate.

I will however observe that the Applicant avers to learning of the Judgment on 10 23/12/2023 which was 30 days after its delivery and the instant application was filed on 09/01/2024 which was 17 days later.

This given the festive season one would consider the dates therein exempted meaning that the Applicant spent a much shorter time than 17 days.

In all the instant application was filed 47 days after the delivery of the Judgment 15 without excluding the days exempted in computation.

In **Ramagarhia Sikh Society** and **Others versus The Ramagarhia Sikh Education Society Ltd** and **08 others HCMA No. 0352** of **2015** a delay of 60 days was considered to be only a matter of days.

I will be guided by the holding of the Supreme Court in **Banco Arabe Espanol** 20 **versus Bank** of **Uganda (1999) EA 22** in which the Court held:

"*The Administration of justice should normally require that that the substance of all disputes should be investigated and decided on their own merits, and errors or lapses should not necessarily debar litigants from the pursuit of their rights unless a lack of adherence to the rules renders the appeal process difficult and inoperative,*

25 *it would seem that the main purpose of litigation namely the hearing and determination of disputes should be fostered rather than hindered*"

- 5 The lack of adherence to the rules in this appeal process by the Applicant does not render the same difficult or inoperative. In the interest of justice and to prevent the Applicant from being entirely turned away at the temple of justice I will allow the instant application with the following orders issuing: - i) The time within which to appeal against the Judgment in Civil Suit No. 10 0115 of 2015 is hereby extended and the Applicant shall file her Appeal within 07 days of this Ruling. - ii) The costs of this application shall abide the outcome of the Appeal.

It is so ordered.

Before me,

…………………………………… **Samuel Emokor Judge 10/04/2025.**

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