Kemisa v Mohammed Jaffer Limited (Civil Application 3 of 1997) [1997] UGSC 20 (21 February 1997)

IN THE SUPREME COURT OF UGANDA

### AT MENGO

#### CIVIL APPLICATION NO. 3/1997

## BETWEEN

KEMISA SENYA

# ::::::::::::::::::: APPLICANT VERSUS

MOHAMMED JAFFER LTD.

(BY THE ATTORNEY AND AUTHORISED :::::::::::::: RESPONDENT. AGENT MANSOOR KHAN MOHAMMED)

## BEFORE: HON. ODER. J. S. C.

RULING.

This is an application brought under $rr.$ 42(2) and 55(3) of rules of this court.

The applicant had made an earlier application in this court as Civil Application No. 28/96. By that application the present applicant as the applicant then sough anxtension of time to within which to lodge an appeal out of time. That application came before me for hearing on 28.1.97 at 10.00 a.m when the application was called for hearing at about 10.03 a.m. neither the applicant Kemisa Senya nor ker Counsel were present, But the respondent's representative and his Counsel por Kangwamu were present.

In the circumstances the respondents Counsel Mr. Kangwamu applied for dismissal of that application for want of prosecution under rule 55(1) of the Supreme Court rules. The application for dismissal was granted and the application was dismissed with costs. Hence the present application brought under rule 55(3) for restoration of the dismissed application - Civil Application No. 28 of 1997. The application is supported by affidavit deponed by Mr. Oscar Kihika on 29/1/1997, Counsel for the applicant in the present and the dismissed application the ground of the application is that Mr. Kihika as Counsel for the application No. 28/96 was delayed on his way to Court by a mechanical problem

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in his motor vehicle on 28/1/1997 when travelling to Court.

The grounds are elaborated in Mr. Kihika's affidavit deponed on 29/1/1997 and filed in support of the present application. The affidavit is to the effect that on 28/1/1997, he set off from his chambers in Spear House Plot 22 Jinja Rd in Kampala at 9.30 a.m. to travel to the Court in his m/v No. UXU. 239 While he was driving along Kampala Rd. the m/v suddenly stopped infront of Greenland Thinking that it was a fuel problem he hired a taxi to Bank. fetch petrol from a petrol station 1KM away. He returned with fuel and added it in the $M/V$ but it still could not start. He then abandoned Whe M/V and travelled to the Court at Mengo in the hired Taxi. He arrived at the Court premises at 10.10 a.m., meeting Mr. Kangwamu the respondents in the staik case of the Court Mr. Kangwamu and his client, the respondent, were then on their way out of my chambers after that application had been dismissed.

In his submission Mr. Kihika elaborated what was stated in his affidavit and added that he had not been dilatory over the matter, The present application was filed on 30/1/1997, or be two days after the application had been dismissed. He submitted that in those circumstances the present application had shown sufficeint cause under rule 55(3) for restoration of the dismissed application; and prayed that the application be granted.

The application is opposed by the respondent. In an affidavit in reply deponed by Mr. Kangwamu Counsel for the respondent the learned Counsel described what happened in Court on 28/1/1997 leading to the dismissal of the applicant's earlier application. He then stated in paragraph 7 of his affidavit:

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"7 From my personal of Mr. Kihika's affidavit<br>particularly paragraphs 5 - 10 of the same in support of the present application it is my belmef that had Mr. Kihika hired a taxi not to take him to the petrol station first to but fuel in to his car but the fuel in atempt to<br>start the car and fail but to bring him client to the Court he would have been present in Chambers when the application was called".

In his submission Mr. Kangwamu elaborated on the point made in paragraph 7 of his affidavit and others.

Of course Mr. Kihika should have done what is advised in paragraph 7 of Mr. Kangwamu's affidavit if he was prudent. He should also have, in my view, provided himself more time to travel to court, making allowance for unforeseeable events, such as accident, what he says happened and many others. That is what a prudent counsel would, and should, do.

Rule 55(3) gives court discretion to allow restauction of a dismissed application if the applicant can show that he was prevented from appearing "by any sufficient cause." What Mr. Kihika described as happened on the way to him when trayelling to court on 28.1.1997 has, in effect, not been controverte/by the respondent. If that is what happened, then it did so, I think, for want of prudence which, perhaps, a wiser person would have been expected to exercise. However it appears to show that he was prevented from arriving in court in time. It is conceded by the respondent's counsel that Mr. Kihika actually arrived in court, but late. If he did not come at all, I think that it would have been another matter.

Another inprudent thing which Mr. Kihika did was not to inform his cleint application coming for hearing on 28.1.1997. This was a point admitted by Mr. Kihika in his affidavit. Mr. Kangwamu said that this was indicative of Mr. Kihika's dilatory consuct. The point was well made, but it must be weighed against the provisions of rules 22 and 70 which entitles a party to be represented by counsel and not to appear. in part of the

All in all, I think that the applicant has shown sufficient cause for restoration of the dismission application under S. 55(3). In a situation such as the present. I think that the respondent

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can be adequately compersated by costs.

- Li brus In the circumstances this application is granted but is ordered that the applicant must pay the respondent's costs for this application in any event; the application must also lodge his dismissed application in court within seven (7) days from the date hereof.

Dated at Mengo this ....................................

minute

A. H. O. ODER, JUSTICE OF THE SULPEME COURT.

$12.15 a.m$ $21/2/1997$

for the applicant. Mr. Oscar Kihika for the respondent who is also present. Mr. Kangwamu Ruling delivered and signed.

> Amm A. H. O. ODER, JUSTICE OF THE SUPKEEE COURT. $21/2/1997$ .

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