Makumbi v Mugimba (Miscellaneous Application 459 of 2024) [2024] UGHCLD 114 (30 April 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA Mtsc. APPLTCATTON NO. 0459 0F 2024 ARISING FROM CIVIL APPEAL NO. OO18 OF 202 AND lc/s NO. OOOT OF 2021IN THE CHIEF MAGISTRATE'S COURT OF MAKINDYE AT MAKINDYE] MAKUMBI GODFREY APPLICANT / APPELLANT ILANp DtVtStONl

# MUGIMBA DERRICK RESPONDENT

# BEFORE: HON. LADY JUSTICE P. BASAZA - WASSWA

# RULING

Represenlation

N,4r. Bunyasln lbrahim and Ir,4 r. Ssalabi Richard for the Applicant / Appellant

lr,4 r. Basiime Armstrong for the Respondent

#### lntroduction

- t1l This is a Ruling on an application brought by the Applicant: Mr. Makumbi, on February 26,2024 in which he seeks for the following Orders; - a) That he be granted leave to Appeal out of time against the decision of the Chief Magistrate's Court of Makindye in C/s No. 0007 of 2021, lhat was delivered on September 22,2023.

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- b) That his lVemorandum of Appeal in HCT -00-LD -CA -0018 -2024 be validated and the time within which to file and serve the same be extended - c) That the Execution of the Judgment, Decree and all Orders arising from the lower court's said decision be stayed pending the final determination of the main Application for stay of execution and Appeal - d) That the costs of this application be provided for - 12) Mr. lr/akumbi's present application was brought under Art. 126 (2) ( e) of the Constitution, section 33 of the Judicature Act, sections 79 & 98 of the Civil Procedure Actl (CPA), and Order 51 and 52 Rules 1 & 3 of the Civll Procedure Rules2 (CPR)

#### Backqround

- t3l ln the lower court suit vide C/s No. 0007 of 2021 in the Chief Magistrate's Court of Makindye, Mr Mugimba (the Respondent herein) sued lr,4 r. tVakumbi (the Applicant herein) for inter a/ia a Declaration that he was the rightful owner of a Kibanja at Busabala village, in Makindye Sabagabo - Wakiso District, measuring 50 by 50 feet. (Hereinafter referred to as 'the suit Kibanja') He also sought for a Declaration that Mr. Makumbi was a trespasser on the suit - 14) N,4r. Mugimba was the successful party in that suit. The learned Chief lVagistrate HArV Esther Adikin held that lt/r. N/ugimbi is the rightful owner of the suit kibanya,

kibanja, and for an Order to evict him therefrom

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and declared that lVr. l',/akumbi is a trespasser thereon. She ordered Mr Makumbi to give vacant possession of the suit Kibanja to tr4r. lr.4ugimbi within sixty (60) days from the date of her Judgment, and also ordered that in the event of default by lr,4 r. lr4akumbi to give vacant possession, an eviction order would issue against him. She also further issued an order of a permanent inJunction restraining l"zlr. Makumbi from further deallng in the suit Kibanja in any way, and awarded to N/lr. N/ugimbi general damages of UGX. 3,000,000/= plus the costs of the suit

#### The Applicant's case

- l5l The gist of Mr. N,4akumbi's present application and supporting affidavit is; - i) That his former lawyers filed a notice of appeal within the timelines but unknown to him, his said former lawyers failed to finalise the appeal process in accordance with his instructions - ii) That when he inquired in early 2024 about the status of the appeal, he was shocked to learn that the former lawyers never finalised the process of filing the appeal - iii) That he immediately instructed new lawyers who filed the appeal vide HCT -00-LD CA -0018 - 2024, which has a high likelihood of success - iv) That the Respondent has started execution of the Decree of the lower court and there is eminent danger of executing the decree if this application is not granted - v) That he stands to suffer irreparable loss once execution is allowed to proceed as he and his family will be evicted from the suit Kibanja Nrru^)n ,\*dl\* Pase 3 of <sup>8</sup>

vi) That he has presented this application without delay

## The Res ondent's answer

- i6l By his affidavit rn reply, lv4r. N,4ugimba opposed the application, and answered - i) That the application is an afterthought only intended to delay the course ofJUstice. - That the Applicant's appeal has no likelihood of success and is based on frivolous grounds and misrepresentations. ii) - That the trial Magistrate explained to the Applicant his right of appeal and timelines within which to appeal. That even when the Applicant was served with an evrction notice on December 7, 2023 he still never bothered to make any essential steps to prosecute his intended appeal. iii) - That the Applicant filed this application five (5) months from the date of . Judgment, and ten (.10) days to the expiry of the 90 - day eviction notice, and is therefore guilty of dilatory conduct, and his application should be dismissed iv) - That the Applicant has shown no sufficient reason for not filing the appeal in time. v)

The ApplicQnt's Rejoinder

l7) Mr. Makumbi re-joined:

- i) That he has followed up the matter with his former lawyer but his lawyer was elusive which prompted him to get his current lawyers. - ii) That he was never served with the Notice of eviction and was only notified about the notice by his current lawyer, hence filing this application.

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iii) That the delay to file this application was due to nonservice upon him of the Notice of eviction, and due to the failure by his former lawyer to promptly execute his instructions. That he prays these should not be visited on him

## lssue to be determined

t8l Whether the Applicant has shown sufficient reason to warrant the grant to him of leave to appeal out of time?

## Submissions by Counsel

t9l Learned Counsel for each party filed their respectrve written submissions. I have duly considered them. For brevity, lwill not capture their arguments in thls Ruling

### Analysis by Court

- t10l Section 79 (1) of the CPA provides inter a/ia, Ihat every Appeal shall be entered within thirty (30) days of the date of the Decree or Order of the court, or within seven (7) days of the date of the order of a Registrar, but the appellate court may for qood cause admit an appeal though the period of limitation prescribed has elapsed. (Underlining for emphasis) - il1l Section 96 of the CPA also allows Court to enlarge time even though the period orlginally fixed or granted may have expired - l12l lt is well settled in a wealth of authorities, that ood cause or sufficient reason must relate to the inability or failure to take an essential step within the time prescribed by the law, and or rules of procedure

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- l13l The factors a court has to consider in an applicatton for extension of time to appeal include; the length of the delay, the reason for the delay, the degree of prejudice to the other party and the chances of success See Mulindwa Georqe William v Kisubika Josephr - t14l ln this case, the reason given by lr.4 r. lVakumbi is that; 'unknown to him, his former lawyer filed a notice of appeal, but failed to finalise the appeal process in accordance with his instructions. That it is only after he inquired in January 2024, thal he was shocked to learn that his lawyers never finalised the process'. - After careful evaluation of this matter, I find that the said reason given by lv1r. lr.4akumbi, does not sufficiently warrant that he be granted an extension of trme. His reason is defeated by the fact that the Orders of the lower Court were tjme bound and required him to act quickly and diligently. He did not. tl sl - The sixty (60) day period within which Mr. Makumbi was ordered to give vacant possession of the suit kibanja to the Plaintiff, or face an eviction order, was a prompt in itself, enough to have required him to act quickly, and to continually check with his lawyer to ensure that his appeal was filed within the prescribed timelines. The Judgment of the lower court was delivered in September 2023 and the Sixty days prescribed therein elapsed in November 2023. One wonders why then, did Mr. Makumbi wait for an additional three (3) months until February 2024 to present his application for extension of time? t16l

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- llll lt is thus apparent to this Court that the said reason given by Mr. Makumbi, fails to account for the period of over five (5) months from the date of Judgment. That inordinate delay is no more than a scoff at the authority and process of court. - tl8l I am emboldened in my decision by the measure of time applied in the Mulindwa case (su pra), in which the Su preme Court upheld the Court of Appeal's finding that a delay of five (5) months was inordinate delay, and that the Court of Appeal rightly dismissed the application for extension of time - t19l Courts have a duty to ensure that the fruits of a judgment that are due to <sup>a</sup> successful party are not frustrated on the whims, wishes, and by the actions of an unsuccessful, defaulting party. That there must be an end to litigation

#### Decision of Court

l20l ln the result this application fails. An extension of time to appeal is disallowed. The purported Memorandum of appeal filed as LD-CA-0018 -2014 is hereby struck out. Since no appeal exisb, the prayer for stay of execution pending an appeal automatically also collapses. This application is accordingly dismissed with costs to the Respondent.

lso order,

tt\*V t /")",^^^^^^r :6J, P. BASAZA. WASSWA JUDGE

April 30,2024

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Ruling delivered via email to the parties, and uploaded on the Judiciary ECCIr/lS Portal Sent to: buniyasinibrahim@qmail.com. for the Applicant. No email address for the Respondent was provided by his lawyers.