Muhumuza v Katalikawe (Miscellaneous Application 53 of 2023) [2024] UGHC 586 (30 April 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASINDI MISCELLANEOUS APPLICATION NO. 0053 OF 2023) (ARISING OUT OF MISC. APPLICATION NO. 0017 OF 2023) (ALL ARISING OUT OF CIVIL SUIT NO. 0040 OF 2008)**

**MUHUMUZA IBRAHIM …………………………………………………………………………………………. APPLICANT**

10 **VERSUS KATALIKAWE JAMES …………………………………………………………………………………………… RESPONDENT**

### **BEFORE: Hon. Justice Isah Serunkuma**

### **RULING**

This application was brought by Notice of Motion under Order 50 Rule 8 of the Civil Procedure Rules and all other enabling laws against the Defendant seeking the following orders.

- 20 a. Leave be granted to allow the Applicant to file an appeal out of time. - b. Costs of the suit be provided for.

The grounds for the Application were laid out in the Notice of Motion and affidavit in support sworn by the Applicant, but briefly, the grounds are.

- 1. The Applicant was the successful party in the Masindi Civil Suit No. 040 of 2008, in which the suit land was decreed to him. - 2. The Respondent filed and is pursuing *Masindi Civil Appeal No. 0064 of 2022* - 30 *Katalikawe James v. Muhumuza Ibrahim.* - 3. On the 14th of June 2023, Miscellaneous Application No. 0017 of 2023 was granted, allowing the Applicant stay of execution pending the determination of the appeal.

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- 4. In granting the stay of execution, the learned trial Assistant Registrar erred in law and fact by determining the Respondent was in physical possession without visiting Locus. - 5. That the suit land should not have been included in the ruling for a stay of execution. - 6. The trial registrar determined ownership and possession reserved for the trial judge which is illegal. - 7. The Applicant was never informed about the right to appeal. - 8. The Registrar's decision aggrieves the applicant, who would like to appeal and has a plausible appeal. - 9. The applicant needs leave to appeal since he is out of time.

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In the affidavit in Reply sworn by the Respondent, it was averred that.

- 1. His land measured 70 acres and was illegally and erroneously decreed to the Applicant without the counterclaim, and the suit land is approximately 3 acres. - 2. It is true that an application for a stay of execution was granted in his favour pending the determination of the Civil Appeal No. 0064 of 2022. - 3. That during the hearing of Civil Suit No. 40 of 2008, the Respondent admitted that he was in possession of 60 acres of the land. - 4. Even the judgment of the Chief Magistrate court recognized that he had sued the applicant for trespass on three acres as suit land, but at the conclusion, the whole was 20 decreed to the applicant. - 5. The Applicant instituted Civil Suit No. 0027 of 2017, in which he asserted that the Respondent trespassed and had 65 acres of land, which is the current suit land. However, the suit was dismissed under the Lis pendens rule. - 6. That the Respondent then sued the Applicant for trespass on approximately 3 acres of land forming part of the land at Walyoba village, Labong parish, Pakanyi sub county in Masindi district measuring approximately 70 acres. - 7. The Assistant Registrar was simply evaluating the chances of success of the appeal, which is a condition for granting a stay of execution.

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- 8. The Assistant Registrar did not determine the ownership of the suit land, and the Respondent proved that he was in possession of it. - 9. During the pendency of Civil Suit No. 040 of 2008, the Applicant filed an amended Written Statement of Defence and counterclaim claiming that the Respondent trespassed on the Applicant's 65 acres, which further meant that he admitted that the Respondent was in possession. - 10. The application is only a disguise intended to delay the hearing of Civil Appeal No. 0064 of 2022. The intended appeal has no chance of success since the Assistant Registrar did not determine ownership, and the applicant has admitted on many 10 occasions that the Respondent owns the land in dispute. - 11. That the applicant is not aggrieved since he admits that the Respondent is in possession of more than 6o acres of land in dispute. - 12. That the grounds in the Applicant's memorandum of appeal are frivolous and vexatious on account of the applicant's admission that the Respondent is in possession of the suit land and the intended appeal is moot. - 13. The applicant has not advanced a sufficient reason to warrant an extension of time outside the seven days stipulated under the Rules to appeal against the Registrar's ruling, and the applicant is guilty of dilatory conduct. - 14. The application abuses the court process and provides insufficient reasons to extend 20 time.

#### *Representation*

M/s Musinguzi & Co Advocates represented the applicant, while M/s Atlas Advocates represented the Respondent. Both parties filed their submissions, which have been considered in preparing this ruling.

#### **Issues.**

*1. Is the application incompetent for having been filed under the wrong law?*

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*2. Is the application frivolous, vexatious, and an abuse of court process?*

- *3. Does the application disclose any sufficient reason for extension time?* - *4. What are the remedies available to the parties?*

## *Submissions of the parties.*

The Applicants did not distinguish between the issues but rather made the following joint submissions.

Counsel submitted that under Section 79(2) of the Civil Procedure Act, where good cause is shown, the court can admit an appeal even after the lapse of the prescribed time. Counsel

10 referred to the authority of **The Registered Trustees of the Archdiocese of Dar es Salaam v. Chairman Bunju Village Government & Ors, quoted in Gideon Mosa Onchwati v. Kenya Oil Limited & Anor 2017 EKLR** wherein the court on sufficient cause held that it is difficult to attempt to define what sufficient cause is. However, it is generally accepted that the words should receive a liberal construction in order to advance substantial justice when no negligence or inaction or want of bonafide is imputed to the appellant.

Further, in Njagi v. Munyiri (1975) EA 179, it was held that any delay must be satisfactorily explained for it to be excused. Counsel submitted that the applicant has good cause for the court to grant leave to file an appeal outside of the prescribed time because he was not 20 informed about his right of appeal. Further, the applicant is not guilty of inordinate delay because he brought this application in a timely manner immediately upon learning of his right to appeal. Premised on the merits of the appeal, the Applicant has plausible grounds for the court to hear and determine.

Additionally, the Respondent did not adduce any evidence to show the Applicant was indeed executing the judgment of the lower court to warrant a stay of execution. They submitted that the Applicant has good grounds for this court to set aside the order allowing for a stay of execution because the learned Assistant Registrar acted without jurisdiction when he found

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that the Respondent owned the suit land without hearing evidence, which is the subject in Civil Appeal No. 0064 of 2022 before the learned trial judge.

While relying on the case of **Andrew Bamanya v. Shamsheerali Zaver SC, Civil Application No. 70 of 2001,** it was submitted that principles governing applications for extension of time are that the administration of justice requires that all substance of dispute should be heard and decided on merit. That the Assistant Registrar acted illegally when he amended the decree and yet he was not an aggrieved party within the context of Order 46 CPR. His amendment was, *"Other than the contested 3 acres, the other 67 acres should not be*

10 *included in the decree".* That owing to the injustice accruing out of the ruling, the Respondent has since resorted to violence by butchering the Applicant's witnesses, and the Applicant lives in constant fear for his life and does not enjoy the occupation of the land.

In conclusion, the Applicant was not informed of his right to appeal within the prescribed time which is ultra vires the Constitution. The matter has degenerated into bloodshed, which is ultra vires. The applicant has bought the application without undue delay, and if denied, the applicant will be denied the right to the land without being heard, which is unconstitutional.

The Respondent's submissions were structured under the various issues as below.

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## *Issue 1.*

## **Whether the application is incompetent for having been filed under the wrong law?**

Counsel for the Respondent submitted that the application was filed under Order 50, rule 8 of the Civil Procedure Rules, which applies to appeals from decisions of the Registrar rather than applications for extension of time. On that basis, they prayed for the matter to be dismissed.

In rejoinder, the Applicant submitted that the reply is devoid of merit, that Order 50 rule 8 gives the court the right to address appeals from the Registrar, and that the Respondent's submissions don't address the court on leave for extension of time.

## **Issue 2.** *Whether the application is frivolous, vexatious, or an abuse of the court process.*

Referring to paragraphs 6,7, 8, and 13 of the applicant's affidavit in support, which are included herein as paragraphs 4, 5, and 6, the Respondent submitted that the said 10 paragraphs summarise the applicant's grievances leading to this appeal, which is to the effect that the Registrar allegedly usurped powers of the Judge by determining the ownership and possession of the suit land to the Respondent. That, however, there is documentary proof that at all material times, the Applicant admitted that the Respondent had about 65 acres of land at Walyoba village. The documentary evidence in reference was as follows.

- i. The Respondent instituted Civil Suit No. 040 of 2008 for the applicant's trespass on approximately 3 acres of land at Walyoba village. The 3 acres formed part of 70 acres owned by the Respondent's family in Walyoba village. - ii. During cross-examination, the Applicant admitted that the Plaintiff (now 20 Respondent) had encroached on all his 60 acres of land, and he should be compensated for having been deprived. He also admitted that he was not in occupation of the land. - iii. During the pendency of Civil Suit No. 040 of 2008, the Applicant filed Civil Suit No. 0027 of 2017, and in paragraph 4(f) of the Applicant stated that the counter respondent (now Respondent) to date continues to work and occupy the Respondent's land and illegally continues to occupy the same. - iv. During the hearing of the Respondent's case in Civil Suit No. 040 of 2008, the Applicant filed an amended Written Statement of Defence and counterclaim in

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which he again stated that the Respondent continues to have the land and trespass.

The Respondent submitted that from these four scenarios, the Applicant admits that the Respondent has always been in possession of the suit land measuring 65 acres. Given that the Applicant admitted and acknowledged that the Respondent has the suit land, his application is frivolous, vexatious, and an abuse of the court process because it cannot sustain an argument.

The Respondent filed the application for a stay of execution to avoid being evicted until the 10 appeal is concluded, lest it be rendered moot. The Respondent further submits that the Assistant Registrar did not determine possession and ownership of the disputed land, as the Applicant asserts. Still, according to the evidence presented by the Respondent, it was well demonstrated who had the suit land. It was not anywhere in the ruling that he was determining ownership.

Counsel further expounded on what *"frivolous, vexatious, and misconceived"* means. He defines frivolous based on **the Black's Law Dictionary** as lacking a legal basis or legal merit, not serious and or not reasonably purposeful" and that the term "vexatious" means "without reasonable or probable cause or excuse, harassing, annoying." He further referred to other 20 cases that variously defined vexatious as lacking merit or no basis. Accordingly, he submitted that the application was intended to delay the hearing and determination of the appeal and, thus, should be dismissed.

In rejoinder, the Applicant submitted that the Registrar did not maintain the status quo but rather destroyed it by determining that the Respondent had the suit land without visiting the status quo. The appeal is frivolous as they acted without jurisdiction when he determined possession and ownership of the suit land, yet the rules on temporary injunction do not

permit him to.

Page 7 ## *Issue 3. Does the application disclose any sufficient reason for extension time?*

The Respondent submitted that the Applicant did not disclose any sufficient reason to justify the extension of time. Counsel submitted that Order 51 rule 6 gives the court the discretionary powers to enlarge time if the Applicant advances a sufficient reason. The discretion must be used judiciously. The decision of the registrar must be appealed against within seven days. The ruling was delivered on 14th June 2023, and this application was filed on 27th September 2023 as an afterthought after three months and a half. The court cannot condone the inordinate delay.

In conclusion, the Respondent submitted that no sufficient reason was given for the extension and that the application was frivolous, vexatious, and an abuse of court process. He prayed that the matter be dismissed with costs.

The rejoinder given by the Applicant is to the effect that he was not informed of his right to appeal, and therefore, the law, in such instances, allows him to apply for an extension of time.

# *Resolution.*

In coming to this decision, we have considered the ruling of the Assistant Registrar that is in question and the parties' submissions.

It is trite that appeals arise from final court orders, and even where the said orders are not within the precincts of the final orders as envisioned under Section 76 of the Civil Procedure Rules and Order 44, the consideration is whether the order in question entitles one to a final decree. The timelines for filing an appeal are set out in Section 79 of the Civil Procedure Act,

which provides as follows.

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## **"79.** *Limitation for appeals*

*(1) 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 or (b)within seven days of the date of the order of a registrar, as the case may be, appealed against; but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed.*

It is, therefore, clear that where one fails to appeal within the prescribed time, the court can make consideration for them to file their appeal out of time, but the said consideration is subject to some conditions. The said considerations were set out in the decision of *Muzamil*

10 *Zamil Ayile versus Rose Taparke and Ors Miscellaneous Civil Application no. 0024 of 2013* wherein the Honorable Judge held that,

> *"The power to grant leave to file an appeal out of time is a discretionary one, and the party seeking such discretionary orders, which are only given on a case-to-case basis, not as a matter of right, must satisfy the court by placing some material before the court upon which such discretion may be exercised. Applications for enlargement of time within which to appeal will not be granted if the delay is inexcusable, where injustice will be caused to the other party, or where there is no reasonable justification."*

20 In another application**,** *Attorney General and Gasper Onzi Obingu v. Okwi Robert Miscellaneous Application no. 0036 of 2019*, the court held that an application for leave to appeal out of time should ordinarily be granted unless the applicant is guilty of unexplained and inordinate delay in seeking the indulgence of court, has not presented a reasonable explanation of his failure to file the appeal within the time prescribed by the act, or where the extension will be prejudicial to the respondent or the Court is otherwise satisfied that the intended appeal is not an arguable one". The court thus concluded that it would be wrong to shut an applicant out of court and deny him or her the right to appeal unless it can fairly be

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said that his or her actions were in the circumstances inexcusable or his or her opponent was prejudiced by them.

Summarily, the court shall examine three conditions, which shall include: the application has been brought without inordinate delay, there is a good cause for failure to file out of time, and finally, no injustice or prejudice shall be suffered by the other party. The court shall now consider these conditions as follows.

#### *a. Inordinate delay.*

The issue of inordinate delay is a question of fact, and as was defined in the case of inordinate delay, it is usually prolonged, excessive, or disproportionate time taken. However, as was held in the case of *Ivita v. Kyumba (1984) KLR 441*, the test to be considered is not just whether there was a delay but rather whether the delay is prolonged and whether justice can be done despite the delay.

The decision of the Assistant Registrar was given on 14th January 2023, and the current application was filed on 27th September 2023, which was at least eight months from the date of the decision. Whereas there is a delay, the court is cognizant of the need to look not 20 only at the amount of time it took for the application to be brought but, rather, also to consider whether justice would be served. The intended appeal is in respect of a grant of stay of execution, which order continues to be in position, and therefore, the intended appeal continues to be relevant. Therefore, the issue of unreasonable delay does not arise.

# *b. Whether there is a reasonable justification or good cause for not filing the appeal.*

Whereas it is the court's duty to ensure that a litigant is not unfairly denied the right to a hearing because of the expiry of time within which to appeal and that such time should be

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extended, if necessary, the said extension shall still be subject to having a good cause as to why the person did not file their appeal on time. The term "good cause" has been defined by various cases. In *Muzamil Zamil Ayile versus Rose Taparke and Ors Miscellaneous Civil Application No. 0024 of 2013***,** the court explicitly explained the meaning and requirement of good cause when it held that,

*"When an application is made for enlargement of time, it should not be granted as a matter of course. Grant of extension of time is discretionary and depends on proof of "good cause," showing that the justice of the matter warrants such an extension. The court must scrutinize the application to determine whether it presents proper grounds* 10 *justifying the grant of such enlargement. The evidence in support of the application ought to be very scrutinized. If that evidence does not clarify that the applicant comes within the terms of the established considerations, then the order ought to be refused….".*

The applicant's reason for the delay is that he was not informed of his right to appeal at trial, and in the circumstances, he is entitled to an extension.

The Applicant was being represented by an advocate at trial, who is expected to be up to date with the different processes of the court, including those relating to appeals. It is trite that 20 the mistake of Counsel ought not to be imputed on a litigant; this cannot be used as a reason where a litigant, even on the test of a reasonable man, is found to be negligent with their case. In the case of **Tiberio** *Okeny, Anor v. The Attorney General, and two others, C. A Civil Appeal No. 051 of 2001***,** the court clearly reiterated this position when it held that *"while mistake of Counsel sometimes may amount to sufficient reason this is only if they amount to an error of judgment but not inordinate delay or negligence to observe or ascertain plain requirements of the law…".*

The applicant was very aware that he was displeased with the decision of the Registrar and should have immediately instructed his lawyers to appeal. At no point does he say that he

instructed, but the lawyer did not act on time. Instead, the representation of the facts is that they received the judgment. Still, because the right to appeal was not explicitly mentioned to them, they, therefore, didn't appeal within the mandatory period. Thereafter, it is unclear who later, upon the expiry of appeal time, told them that there was an application applying for leave to appeal. This is a representation of negligence both on the side of the litigant and his lawyer and cannot thus qualify as sufficient reason.

However, the Applicant has also majorly flawed the Registrar's decision on the allegations that by the said decision, the Registrar decreed that the property belonged to the 10 Respondent and, therefore, usurped the court's power. I have had the privilege of reading the ruling in consideration by which the order for stay of execution was granted. Summarily, it is represented therein that the registrar granted the said application to maintain the status quo pending the determination of an appeal that the Respondent filed. He also noted that whereas the applicants claimed to have already executed the decree by entering onto the land the said execution was not effective as they did not apply to court for the execution.

Accordingly, it is important to establish whether there is an appellable matter in consideration of the decision of the Assistant Registrar. It is indeed the position **under Order 22 Rule 7 of the Civil Procedure Rules** and **Section 30 of the Civil Procedure Rules** that 20 the person intending to execute applies to the court that passed a decree for an execution order. An execution that begins without the said order is done ultra vires. Accordingly, the Assistant Registrar rightly determined that, in effect, the execution did not take place as the relevant procedure was not followed. The Registrar thereafter proceeded to stay the execution of the decree as the execution is considered not to have commenced prior. At no point was the land ownership determined, and that remains a question of the appeal.

Further, it should be noted that the Applicant intends to appeal against a decision in an interlocutory application. The order that was granted was not a final determination of the parties' rights, which is the typical nature of an appeal, but rather a decision made to

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suspend the execution until the determination of the appeal. Interlocutory decisions are those that are incident to the appeal but not a determination of the appeal. *(Beatrice Kobusingye v. Fiona Nyakana & Anor Civil Appeal No. 5 of 2004)***.** It is the court's view that the appeal in the first place may not be feasible given that there shall still be a need to maintain the status quo until the appeal that the Respondent filed is determined.

**Order 44, Rule 4 of the Civil Procedure Rules,** clearly states that an appeal does not automatically act as a stay of execution; however, an order for a stay of execution shall be made where the necessary considerations for a stay of execution are fulfilled. The Assistant 10 Registrar, therefore, did not act in any way beyond his power to stay execution, and the applicants do not have a plausible appeal in place.

The Applicant failed to put forward a reasonable justification for the delayed appeal. Even though the court was to further inquire into the feasibility of the intended appeal as a reason to warrant the order to be granted, the Applicant does not have a plausible appeal. Therefore, the good cause cannot even be inferred from the nature of the issue to be determined at appeal.

#### c. *Whether the Respondent shall suffer an injustice*?

Whereas from the nature of the application, there is no direct injustice to be suffered by the Respondent, from the above explanation, the applicant did not have a reasonable justification, and even if the application were to be granted, there is a feasible appeal to be heard. It, therefore, means that the applicant may be unnecessarily engaged in an appeal involving both financial and time resources, and yet it shall not yield any results for either party.

*Conclusion.*

Based on the reasons as laid out above, the requirements for the grant of leave to appeal by the Applicant have not been fulfilled as the Applicant has not given a good cause for failure to file the appeal in time.

**I so rule.**

**DATED and delivered on this 30th Day of April 2024.**

10 **…………………………**

**Isah Serunkuma JUDGE**