Mzee Festo Jumbe v Hokofam Ltd (Miscellaneous Application 37 of 2024) [2025] UGHC 405 (10 March 2025)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-CV-MA-0037-2024**

**(ARISING FROM HCT-01-CV-CS-0038-2020)**

**MZEE FESTO JUMBE=========================================APPLICANT**

**VERSUS**

**HOKOFAM LTD===========================================RESPONDENT**

**BEFORE HON. JUSTICE DAVID S. L. MAKUMBI**

Applicant represented by M/S Ahabwe James & Co. Advocates

Respondent represented by M/S Muhumuza-Kiiza Advocates and Legal Consultants

**RULING**

**BACKGROUND:**

This Application is brought by way of Notice of Motion under Article 28 of the Constitution; Section 98 of the Civil Procedure Act; and Order 9 of the Civil Procedure Rules by which the Applicant seeks the following orders:

1. The order of this Court dismissing **HCT-01-CV-CS-0038-2020** be set aside; 2. Civil Suit No. **HCT-01-CV-CS-0038-2020** be reinstated and heard on merit; 3. Costs of the Application be provided for.

The Application is supported by the affidavit of the Applicant Mzee Festo Jumbe in which he states that he filed the dismissed suit and throughout the hearings he would attend court. He further stated that the suit had been erroneously dismissed on 22nd March 2024 while he was hospitalized and was unable to attend court. He further stated that on the day in question his advocate was engaged in other pre-fixed matters scheduled for that day and that this reason as well as his illness were sufficient reason for setting aside the dismissal order. He went on to state that it was just, fair and equitable for the application to be allowed.

The Respondent filed an Affidavit in Reply sworn by the Respondent’s Company Secretary Ampaire Jackline opposing the application. She stated that the application was frivolous, vexatious and an abuse of court of court process. She went on to state that the Applicant was fully aware of the court proceedings and that it was the duty of the Applicant to proceed with the case. It was also stated that the Applicant had been granted several opportunities to proceed with their case but had failed to do so over a period of four years. The Deponent went on to pray that the application is dismissed or in the event that the application is granted that the Applicant furnish security for performance of the decree of the Court.

**Submissions:**

Counsel for the Applicant submitted that the dismissed matter can only be reinstated upon proof of sufficient cause preventing the Applicant or his advocate from attending court. He went on to cite the case of **Banco Arabe Espanol v Bank of Uganda – SCCA No. 8 of 1998** in which sufficient cause is defined to mean adequate or enough reason related to the party’s inability to attend court.

Counsel went on to refer to the Applicant’s affidavit wherein he stated that he was admitted in hospital and attached evidence of the same to the affidavit and that furthermore his lawyer was engaged handling other prefixed matters on the date in question. To that extent Counsel argued that there was sufficient cause for the matter to be reinstated.

Counsel for the Respondent submitted in response that the application was frivolous, vexatious and amounted to an abuse of court process and furthermore offended the rule of grant of application for reinstatement. Counsel submitted that the Applicant needed to meet the requirements of Order 9 Rule 23(1) of the Civil Procedure Rules. Counsel further cited the case of **Gideon Mosa Onchwati v Kenya Oil Co. Ltd & Another (2017) eKLR** to lay out the guiding standard for establishing what amounts to sufficient cause.

Counsel for the Respondent went on to argue that the Applicant was aware of the court proceedings but ultimately chose to ignore the need for appearance. Counsel argued that both parties were aware of the next hearing date and that furthermore according to Paragraphs 6, 7 and 9 of the Affidavit he was aware of the court proceeding but still ignored the same.

Counsel for the Respondent further argued that as much as a mistake of Counsel ought not to be visited on the litigant, there was no evidence in this matter concerning whether he had instructed Counsel effectively. Counsel argued that the failure to attend court in this matter was a result of the negligence of the Applicant and his lawyers and to that extent it was a failure to prosecute the case. Counsel argued that in this regard it was prudent to dismiss the application or in the alternative to require that the Applicant furnishes security for the costs already taxed in the dismissed matter.

**ANALYSIS AND RESOLUTION OF THE APPLICATION:**

I have considered the application and submissions of Counsel. This Application arises from a decision of this Court to dismiss Civil Suit No. **HCT-01-CV-CS-0038-2020** in line with Order 9 Rule 22 of the Civil Procedure Rules. In that regard the Applicant seeks reinstatement of the suit and while the Applicant neglected to cite the specific rule, the rule governing reinstatement of matters dismissed under Rule 22 is Order 9 Rule 23(1) where it is provided that,

*“Where a suit is wholly or partly dismissed under Rule 22 of this Order, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he or she may apply for an order to set the dismissal aside, and, if he or she satisfies the court that there was sufficient cause for non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal, upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.”*

It is clear from the rule above that for any suit dismissed under Rule 22 the main consideration for the Court in determining whether to set aside the dismissal is establishing whether there was sufficient cause for non-appearance when the suit was called for hearing.

In the present matter the reason advanced by the Applicant for not appearing in court was that on the day that the suit came up for hearing he was admitted in hospital. He attached copies of medical forms from Kasese Municipal Health Centre III to the Affidavit in support. According to the medical forms the Applicant was admitted from 20th March 2024 to 25th March 2024. The Applicant further stated that his Advocate was appearing in other High Court matters scheduled before another judge when the suit was dismissed on 22nd March 2024.

The Respondent opposed the application on the basis that the Applicant was always aware of the proceedings and yet decided not to appear in Court. Counsel for the Respondent strongly opposed the reinstatement on those grounds.

As far as sufficient cause is concerned in the case of **Banco Arabe Espanol v. Bank of Uganda (SCCA No. 8 of 1998)**, the Supreme Court emphasized that sufficient cause must be assessed based on the facts of each case. The Supreme Court went on to hold that legal counsel's mistakes, such as a misinterpretation of a court order or a financial guarantee, may constitute sufficient cause.

In this case the situation before the Court involves the fact that the Applicant was apparently hospitalized. However, by his own admission his own Counsel was on the Court premises albeit appearing before another High Court judge. I consider the absence of the Applicant on health grounds to be a valid reason for not having been able to make it to Court. However, I do find that the failure of his Counsel to appear in the matter on the date in question was not a mistake within the meaning of the holding in the **Banco Arabe Espanol** case cited above. This is because Counsel having managed to appear before a different judge in other matters arising from the same cause-list meant that Counsel actively neglected his client’s case and placed more importance on other pending matters. In such circumstances Counsel for the Applicant ought to have made arrangements for another advocate to hold brief in the matter. Court does not operate at the convenience of Counsel and it is certainly not for Counsel to select which matters warrant appearance at the expense of others especially when all the matters involve paying clients.

However, despite the fact that the dismissal of the suit was a result of what amounted to irresponsible conduct of Counsel, I have perused the record of the dismissed suit and noted that the Applicant was not entirely neglectful of the case and had appeared on more than one occasion during the process of Summons for Directions.

Therefore in the interests of substantive justice as established under Article 126(2)(e) of the Constitution and pursuant to Section 98 of the Civil Procedure Act I do find that there is sufficient cause for the reinstatement of this matter. While the legal position presently is such that litigants should not be put to disadvantage on account of mistake of Counsel, I do also consider the negligence of Counsel to the detriment of a client may, depending on the circumstances, also constitute sufficient cause for the reinstatement of a dismissed suit under Order 9 Rule 23(1). This is especially the case for a dismissed suit because the subject matter value of the suit has not been formally proved and cannot therefore be easily recovered by a litigant in an action against a negligent Advocate. Furthermore Order 9 Rule 22 precludes a litigant from bringing a fresh suit in respect of the same cause of action.

I do also find that where it is clear that Counsel was aware that a matter had been cause-listed alongside another matter or matters before the same court but before different judges, it is not open to Counsel to simply neglect the conflicting matter or matters in preference for others. I reiterate that in such a situation it is upon Counsel to ensure that they arrange for another Advocate to hold their brief to avoid jeopardizing their client’s case. In that regard while I find it just that the application is allowed, I also consider it just and fair that Counsel Wahinda Enock for the Applicant to personally meet the costs of the Respondent in this matter. The reason for this is that without his negligence this application would not have arisen and neither the Applicant nor Respondent would find themselves in the present situation.

**ORDERS:**

1. The Application is allowed and Civil Suit No. **HCT-01-CV-CS-0038-2020** is accordingly reinstated and is to be allocated a fresh suit number under the High Court Circuit of Kasese. 2. Counsel Wahinda Enock for the Applicant shall meet the costs of the Respondent personally.

**David S. L. Makumbi**

**JUDGE**

**10/03/25**