Kiramira v Tumwebaze,Atugonza,Kobusingye Advocates (Miscellaneous Application No. 1401 of 2022) [2022] UGHCLD 240 (25 October 2022)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DIVISION)

# **MISCELLANEOUS APPLICATION NO.1401 OF 2022**

(Arising from Tax Appeal Ref. No.008 of 2018)

## (Arising out of Miscellaneous Application No.111 of 2017)

(All arising out of Civil Suit No.590 of 2013)

AMOS KIRAMIRA:::::::::::::::::::::::::::::::::

### "VERSUS

10 TUMWEBAZE, ATUGONZA, KOBUSINGYE <table>

ADVOCATES::::::::::::::::::::::::::::::::::::

# Before: Lady Justice Alexandra Nkonge Rugadya.

Ruling.

- 15 This is an application brought by notice of motion under **Section 98 of the Civil Procedure** Act cap.71, Order 44 rules 2, 3, & 4, Order 51rule 6, and Order 52 of the Civil **Procedure Rules SI 71-1** seeking orders that; time be enlarged for the applicant to seek leave to appeal, and that the applicant be granted leave to appeal against the ruling of **Hon. Justice Alexandra Nkonge Rugadya** delivered on 6<sup>th</sup> June, 2019, as well as the taxation ruling of 20 **Her Worship Natukunda Janeva** delivered on 25<sup>th</sup> May, 2022. The application also sought - for the costs of the application to be provided for.

# Grounds of the application.

$\mathsf{S}$

The grounds of the application are contained in the affidavit in support deponed by the applicant but briefly, that the applicant being dissatisfied with the ruling of this court dated 25 6<sup>th</sup> June, 2019 wherein the appellate judge wrongfully upheld the taxation of some of the items in the respondent's bill of costs which had been maliciously taxed vide **Tax Appeal No.008 of 2018,** and also ordered that the rest of the items be struck off and others taken back for re-taxation.

That the applicant being desirous of appealing to the Court of Appeal to have the said taxation 30 ruling set aside filed *Miscellaneous Application No.1933 of 2021* seeking leave to appeal, but the same was held to be premature owing to the fact that the same awaits the decision of the Registrar re-assessing the advocate-client bill of costs as earlier directed by court,

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which also directed the Registrar to comply with the orders in **Tax Appeal No.008 of 2019** within a period of 30 days.

That the matter was then allocated to **Her Worship Natukunda Janeva** for re-assessment of the advocates' bill of costs, and that because, whenever the matter was fixed for taxation,

- $\mathsf{S}$ the respondents did not enter appearance, the matter was heard *ex-parte* and on $25<sup>th</sup>$ May, 2022 the learned Deputy Registrar made a ruling wherein the respondents were awarded **Ug.** Shs. 45, 980, 000/- (Uganda Shillings forty-five million Nine hundred eighty thousand **only**) as costs, but the applicant was never given a chance to explain his reasons for opposing the said bill of costs yet he intended to challenge several items on the bill of costs. - 10 That the said ruling was therefore passed by the learned Registrar without according the applicant a chance to make his case, and that the applicant being dissatisfied with the reassessment now seeks to obtain leave to appeal the said taxation in the court of appeal and that had it not been for the lack of funds to instruct his lawyers, he would have filed the instant application earlier on. - In addition, that because the applicant still has no funds to instruct lawyers to represent 15 him. He decided to bring the instant application on his own, owing to the gross injustices occasioned upon him, and that he also intends to file an appeal against the ruling of this court as well as the re-taxation, and that the said appeal raises pertinent issues of law. - Further, that the intended appeal has a likelihood of success and that refusal to grant the application shall occasion an injustice to the applicant, thus not only is it just, but also 20 equitable that he is granted leave to appeal, and the time within which to file this application be extended.

The respondent in this case opted not to file an affidavit in reply opposing the application but filed written submissions objecting to the application.

#### 25 Section 79 (1) of the Civil Procedure Act, Cap 71, provides, that: -

"Except as otherwise specifically provided in any other law, every appeal shall be entered: -

## a. Within thirty days of the date of the decree or order of the court..."

$\bullet$

This court however has a discretion to grant the extension of time to appeal out of time so that the appeal is heard on its merits and the dispute is settled. However, the decided cases have held that the discretion must be exercised judicially on proper analysis of the facts and the proper application of the law to the facts. (See the case of Margret Musango -Vs-Francis Musango [1979] HCB 226).

It is the law that an application for extension of time within which to file an appeal must show 35 sufficient cause/reason before court can exercise its discretion in his/her favour. In other

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words, the applicant must satisfy the court that he/she was prevented by sufficient reason from adhering to the time limit set by the law.

In the case of Hadondi Daniel vs Yolam Egondi Court of Appeal Civil Appeal No 67 of **2003** court held that;

- $\mathsf{S}$ "It is trite law that time can only be extended if sufficient cause is shown. The sufficient cause must relate to the inability or failure to take necessary step within the prescribed time. It does not relate to taking a wrong decision. If the applicant is found to be guilty of dilatory conduct, the time will not be extended." - 10 In the present case, the applicant in his affidavit clearly states that he is dissatisfied with the re-assessment and seeks to obtain leave to appeal from the said taxation because the ruling in issue was passed by the Registrar without according him a chance to be heard.

He further states that the delay in filing the appeal as well as the instant application was caused by the lack of funds to instruct lawyers on his part.

15 The supreme Court in the case of **Tushabe Chris vs Cooperative Bank Ltd (in receivership)** Supreme court Miscellaneous Application No.8 of 2018 observed that the lack of financial ability to immediately instruct a lawyer to appeal constitutes sufficient reason for failure to appeal in time.

In the circumstances, I find that the reason advanced by the applicant constitutes sufficient 20 cause to warrant the grant of prayers sought in this application and therefore order that the time within which the applicant had to appeal be enlarged and the applicant to file his appeal within 7 days of this ruling, and serve the same onto the respondents.

No orders as to costs.

I so order.

Alexandra Nkonge Rugadya Judge

30 25<sup>th</sup> October, 2022.

Delivered by email<br> Outsite<br> $\frac{1}{25|1|2023}$