Muhwezi v Total Marketing Uganda Limited (Miscellaneous Application 256 of 2024) [2025] UGHC 70 (25 February 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBALE **MISCELLANEOUS APPLICATION NO. 256 OF 2024**

(ARISING FROM CIVIL APPEAL NO. 104 OF 2024)

(ARISING FROM MA NO. 211 OF 2023)

(ARISING FROM CIVIL SUIT NO. 041 OF 2023)

**MARTHA MUHWEZI ::::::::::::::::::::::::::::::::::::** (SUING THROUGH HER LAWFUL ATTORNEY MICHEAL KITUTU)

#### **VERSUS**

TOTAL MARKETING UGANDA LTD :::::::::::::::::::::::::::::::::::

### **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### **RULING**

#### 1. Introduction

- 2. This application was brought by way of a notice of motion under Section 33 of the Judicature Act, Cap. 16 [now Section 37], S.98 of the Civil Procedure Act, Cap. 282, and Order 51 Rules 6 of the CPR, seeking for orders that- - a) Time within which the Appellant is to serve the notice of motion video Civil Appeal No.104 of 2024 be enlarged; - b) The proceedings in MA No. 211 of 2023 be stayed pending the determination of the Application; - c) Costs of the application be provided for. $\frac{1}{2}$ - 3. The grounds of this application are contained in the affidavits in support and rejoinder sworn by **MICHEAL KITUTU**, but briefly the grounds are that- - The Applicant filed an appeal to this court, and on 19/9/2024 court issued $i$ . the summons for service of process on the Respondent;


- The Applicant could not serve the appeal because she was not notified of ii. the signing of the summons by the Registrar and as such was caught up by time; - iii. The Applicant has sufficient cause for being unable to serve the summons and the application within time; - The justice of the case requires that this application be granted; iv. - Granting the extension of time will enforce the Appellant's right to be heard $v$ . which is provided by Article 28 of the constitution; - vi. The appeal raises arguable grounds and the main grounds of the intended appeal have high chances of success and are of general public importance; - vii. The appeal has a high likelihood of success and this application has beent brought promptly and without any inordinate delay; - viii. It is only just and equitable that the Applicant be granted an enlargement and extension of time within which to serve Civil Appeal No. 104 of 2024. - 4. The application was opposed through affidavit in reply sworn by RITA **ASIIMWE**, the legal manager of the Respondent's company on grounds briefly that- - $i.$ The powers of Attorney granted to Michael Kitutu do not relate to the instant case instead relates to Miscellaneous Cause No.15 of 2017; - ii. Michael Kitutu lacks authority or locus Standi to bring the instant application; - iii. The Respondent is and has been in possession of the suit property and is the lawful lessee who has invested heavily on the premises with a running business of a petrol service station on the property that has been operational for over fifty (50) years; - iv. The Respondent filed Civil Suit No.41 of 2023 before this court against the Applicant to protect its interest in the suit property; - $V$ . Subsequently, the Respondent filed an application for temporary injunction vide Miscellaneous Application No. 211 of 2023 and Miscellaneous Application No. 212 of 2023 for interim restraining orders against the Applicant;

- This court granted an order of temporary injunction against the Applicant vi. subsequent to the interim restraining orders that had earlier been issued by the same court; - The Applicant has not shown a good cause why she failed to take essential vii. steps within the prescribed time to file an appeal against the decision of the Registrar; - The grounds raised in the notice of motion of the appeal can be handled viii. in the main suit; - The application should be dismissed with costs. ix.

## 5. Background

- 6. The Respondent filed Civil Suit No.41 of 2023 for among other orders that she is the lawful owner of the suit property comprised in Plot 43 Republic Street, Mbale City. Subsequently, the Respondent filed an application for temporary injunction vide Miscellaneous Application No. 211 of 2023 which was granted in her favour by the Deputy Registrar on $8/09/2024$ ; - 7. As a result, the Applicant on 18/9/2023 filed an appeal by way of notice of motion against the decision of the Deputy Registrar; - 8. The Applicant failed to serve the notice of motion to the Respondent in time, and has moved court in the instant application for court to enlarge time and allow her serve the notice of motion/appeal to the Respondent.

# 9. Representations

10. Counsel Kenneth Situma appeared on brief for James Akampuza representing the Applicant. Cheptoek Nancy appeared on brief for Edoku Paul representing the Respondent.

#### 11. Submissions

12. The parties filed written submissions which I have considered in determination of this application.

## 13. Analysis of court

Four issues were proposed in the submissions of parties, to wit-

a) Whether the attorney has lawful authority to bring this action?

- b) Whether there are sufficient grounds for the enlargement of time for the Applicant to serve the Respondent with the notice of motion in Civil Appeal No.104 of 2024? - c) Whether there are grounds for stay of proceedings in M. A 211 of 2023? - *d) What remedies are available to parties?* - 14. Issue One: Whether the Attorney has lawful authority to bring this action? - 15. The Respondent submitted that the Powers of Attorney granted to Michael Kitutu do not relate to Miscellaneous Cause No.15 of 2017, thus, he lacks authority or *locus Standi* to bring the instant application. - 16. It was submitted that the Powers of Attorney presented by Michael Kitutu only confer authority to him to represent Martha Muhwezi in Miscellaneous Application No. 15 of 2017, yet the instant matter arises from Civil Suit No.41 of 2023 which by far is detached from Miscellaneous Application No. 15 of 2017. - 17. In reply to this issue, the Applicant stressed that Michael Kitutu is the lawfully attorney of Martha Muhwezi legally authorized to bring this matter. - 18. I have established from the pleadings of the Applicant that this is an application for enlargement of time to enable the Applicant to serve the notice of motion vide Civil Appeal No.104 of 2024 out of time. The only issue that arises at this point is whether the application meets the grounds for enlargement of time as prayed for by the Applicant. The preliminary issue raised by the Respondent can better be addressed during the hearing of the appeal because it touches the tenability of the appeal. - 19. I would therefore disregard the Respondent's point of law for being premature.

- 20. Issue Two: Whether there are sufficient grounds for enlargement of time for the Applicant to serve the Respondent with the notice of motion in Civil Appeal No.104 of 2024? - 21. The record of court shows that the Deputy Registrar on 8/09/2024 granted among other orders an order for temporary injunction in Miscellaneous Application No.211 of 2023. I note that this is the order of court which the Applicant seeks to appeal against vide Civil Appeal No. 104 of 2024. - 22. On $18/09/2024$ , the Applicant filed an appeal by way of notice of motion under Civil Appeal No.104 of 2024 against the decision of the Deputy Registrar in Miscellaneous Application No. 211 of 2023. - 23. Section 79 (1) (b) of the Civil Procedure Act, Cap. 282 provides that-"Except as otherwise specifically provided in any other law," every appeal shall be entered within seven days of the date of *the order of a registrar......*" - 24. The law provides that an appeal against the order of the registrar shall be filed within 7 days from the date of the order. - 25. Order.50 Rule 8 of the Civil Procedure Rules provides that-

"Any person aggrieved by any order of a registrar may appeal from the order to the High Court. The appeal shall be by *motion on notice*." 26. The record of court further shows that a notice of motion under Civil Appeal No.104 of 2024 was signed and sealed by court on the 19/08/2024. Later, the Applicant filed the present application on $7/11/2024$ seeking the latitude of court to enlarge time for the Applicant to serve the notice of motion to the Respondent.

Section 96 of the Civil Procedure Act, Cap.282 read together 27. with Order 51 Rule 6 of the Civil Procedure Rules provides that-

> "Where a limited time has been fixed for doing any act or taking any proceedings under these Rules or by order of the court, the court shall have power to enlarge the time upon such terms, if any, as the justice of the case may require, and the enlargement

may be ordered although the application for it is not made until after the expiration of the time appointed or allowed; except that the costs of any application to extend the time and of any order made on the application shall be borne by the parties making the application, unless the court shall otherwise order."

This court ruled in the previous case of **Bugishu Muslim District** 28. Council vs Musa Kalokola & 2 ors, Miscellaneous Application No. 105 of 2024 that-

> "The law is silent on the timelines within which a notice of motion is supposed to be served on the opposite party. However, a party has to serve the same to the adverse party within a reasonable time".

- The expression "reasonable time" means so much time as is 29. necessary under the circumstances to do conveniently what the contract or duty requires should be done in a particular case". [See: Joseph Severance v. Benny Mathew (2005(7) SCC] - I have however, stated in my earlier rulings on the same subject 30. matter of service of a notice of motion that for purposes of fairness, in such circumstances reasonable time should not be considered beyond 30 days from the date when the act of serving a motion to the Respondent ought to have been done otherwise it will constitute a dilatory conduct. - The notice of motion under Civil Appeal No.104 of 2024 was signed 31. and sealed by court on the $19/08/2024$ . For about a period of two (2) months by the date of filing the instant application on $7/11/2024$ , the Applicant had never served the Respondent with notice of motion in the said appeal. - The explanation given by the Applicant in paragraph 3 of his affidavit 32. in support of the application is that when the notice of motion was signed and sealed by court on $19/9/2024$ , the file could not be traced at court until $20/10/2024$ which made it impossible for the Applicant to serve the Respondent in time.

- First, I note that the Applicant filed Civil Appeal No.104 of 2024 itself 33. out of time beyond the seven days in which an appeal should be entered against the order of the Registrar. Again, service of the same was not effected to the Respondent in about a period of two (2) months by the date of filing the instant application on $7/11/2024$ . - I do not find the Applicant's reason satisfactorily convincing to 34. explain the sluggishness in taking the necessary steps in time provided under the law to overturn the decision of the Deputy Registrar. - The Supreme Court of India in the case of **Chhedi Lal Yadav vs Hari** 35. Kishore Yadav [(2018) 5 SCC 427: AIR 2017 SC Supp 435] stated that-

"The time must be reckoned reasonably, not only in order to preserve rights and advantages which party possess but equally, to protect each party from losses, he ought not to suffer."

Having answered issue two in the negative, the discussions on issue 36. three will be just a mere moot since the results of issue two have had a direct impact on the would be findings of the latter.

In the result, this application fails, and it is hereby dismissed with 37. costs to the Respondent.

I so order

**LUBEGA FAROUO** Ag. JUDGE

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Ruling delivered via emails of the parties on this 25<sup>th</sup> day of February, 2025