Nyakabwa and Another v Kalimbi and 2 Others (Civil Miscellaneous Application 25 of 2023) [2024] UGHC 399 (31 May 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **CIVIL MISC. APPLICATION NO. 0025 OF 2023 (ARISING FROM CIVIL SUIT NO. 0014 OF 2016)**

### **1. DANIEL NYAKABWA**

## 6 **2. DAMALIE KAIRUMBA ::::::::::::::::::::::::::::::: APPLICANTS (Suing as Administrators of the Estate of the late Kasa Kairumba & for beneficiaries of the will of late Joseph Kairumba Rusongoza)**

#### 9 **VERSUS**

- **1. KENNETH KALIMBI** - **2. ROBINA BWITA**

12 **3. COMMISSIONER FOR LAND REGISTRATION ::: RESPONDENTS**

## **BEFORE: HON. JUSTICE VINCENT WAGONA** 15 **RULING**

## **Introduction:**

This ruling resolves the motion by the applicants commenced under Section 66, 79 and 98 of the Civil Procedure Act, 33 of the Judicature Act and Order 44 rules 1, 2,

21 3 and 4 of the Civil Procedure Rules for orders that:

- **1. The applicants be granted leave to appeal the decision of this court in Civil Suit No. 0014 of 2016 out of time.** - 24 **2. That the notice of appeal filed and served out of time be validated.** - **3. That the costs of taking out the application be provided for.**

## **Grounds of the Application:**


The application is premised on the contents of the motion and the affidavit in support deponed by Damalie Kairumba, the 1st 3 applicant who deposed as follows:

- (1)That judgment in Civil Suit No. 0014 of 2016 was delivered in favour of the Respondents court having dismissed their case with costs. - 6 (2)That they were not aware of the date the judgment was delivered and only heard from the 2nd Respondent who claimed that she had won the case and placed the suit land on market for sale. - 9 (3)That being dissatisfied with the decision, they intend to appeal to the Court of Appeal and have since through their lawyers filed a notice of appeal and a letter asking for a typed record of proceedings. - 12 (4)That the appeal has high likelihood of success and it was just, fair and equitable that this application is granted.

### 15 **Reply of the respondents:**

The application was opposed by the 1st and 2nd Respondents who jointly averred as 18 follows:

- (1)That the applicants were aware of the date the judgment was delivered and have not demonstrated sufficient cause to allow admitting the appeal out of - 21 time and for the notice of appeal to be validated. - (2)That this court lacks the jurisdiction to grant the orders sought by the applicants. That the suit land belongs to the 2nd Respondent and there is no 24 prospect of the appeal succeeding.

(3)That it was fair and just that the application is dismissed with costs.


#### **Representation and hearing:**

*Mr. Ewalu Ronald* appeared for the applicants while *Mr. Wahinda Enock* appeared for the 1stand 2nd Respondents. Both counsel addressed me by way of written 6 submission which I have duly considered herein.

#### **Issues:**

The application raises two issues for determination by court:

**(1)Whether the applicants have demonstrated sufficient cause to permit** 12 **grant of leave to appeal against the decision of this court in civil suit no. 14 of 2016 out of time?**

**(2)What remedies are available in the circumstances?**

### **Submissions for the Applicants:**

- 18 Mr. Ewalu, learned counsel for the applicants submitted that section 79(1) of the Civil Procedure Act allows court to grant leave to appeal out of time. That this is pegged on the applicant demonstrating sufficient case which must relate to the - 21 inability to take a particular act in time. (See *William OdoiNyandusi v Jackson Oyuko Kasendi, Civil Appeal No. 32 of 2018*). That the applicants pleaded that they were not aware of the date the judgment was delivered. That they kept following up - 24 with the court clerk who informed them that the judgment had not been delivered. That they only learnt from one of the Respondents whom they saw jubilating for


having won the case. It was contended that there is thus sufficient cause to warrant admitting the appeal out of time.

He also submitted that the intended appeal has high chances of success. That one of the considerations for grant of leave is that the applicant must demonstrate that the

- 6 appeal raises grounds which merit serious judicial consideration. He invited me to the decision of *Sango Bay Estate & others v Dresdner Bank & A. G [1971] 17.* It was pointed out that the applicants had indicated that the learned trial judge - 9 erroneously dismissed their case and ignored the glaring illegalities. It was contended that these grounds merit serious judicial consideration. - 12 It was asserted that this court has the powers to validate the notice of appeal lodged by the applicants. He cited the case of *Tushabe Cris v Co-operative Bank Limited in Receivership, Civil Appeal No. 008 of 2018*. Counsel thus asked court to allow 15 the application with costs to the applicants.

### **Submissions for the Respondents:**

In reply, *Mr. Wahinda* for the respondents contended that this court has no powers to validate a notice of appeal filed by the applicants in contravention of the law. That 21 such jurisdiction is vested in the appellate court. He thus asked court to dismiss the application with costs on that account. He also submitted that the power to order extension of time within which to appeal is exercisable upon proof of sufficient 24 cause. That the applicants already flouted the law by filing a notice of appeal out of time without leave and such there is no cause show for grant of leave. That as such the application should be rejected with costs.


#### **CONSIDERATION BY COURT:**

- 3 Rule 76(1) of the Court of Appeal Rules provides that; Any person who desires to [appeal](https://ulii.org/akn/ug/act/si/2000/13-10/eng@2000-01-03#defn-term-appeal) to the [court](https://ulii.org/akn/ug/act/si/2000/13-10/eng@2000-01-03#defn-term-court) shall give notice in writing, which shall be lodged in duplicate with the [registrar of the High Court.](https://ulii.org/akn/ug/act/si/2000/13-10/eng@2000-01-03#defn-term-registrar_of_the_High_Court) Rule 2 adds that; Every notice under subrule (1) - 6 of this rule shall, subject to rules 83 and 95 of these Rules, be lodged within fourteen days after the date of the decision against which it is desired to [appeal.](https://ulii.org/akn/ug/act/si/2000/13-10/eng@2000-01-03#defn-term-appeal) Therefore a party who desires to appeal a deccison of the High Court to the Court of Appeal must - 9 do so within 14 days from the date the judgment is delivered. Where a party desires to appeal after the 14 days have passed must do so with leave of court. - 12 Rule 42(1)&(2) of the Judicature (Court of Appeal Rules) Directions, Statutory Instrument 13-10 of 2000 – states that; (1) whenever an application may be made either in the Court of Appeal or in the High Court, it shall be made first in the High - 15 Court; (2) Notwithstanding sub-rule (1) in any civil or criminal matter, the Court of Appeal may, on application or of its own motion, give leave to appeal and grant a consequential extension of time for doing any act as the justice of the case requires, - 18 notwithstanding the fact that no application for that purpose has first been made to the High Court. Order 51 rule 6 of the CPR, adds that where a limited time has been fixed for doing any act or taking any proceedings the High Court has power to - 21 enlarge the time upon such terms, if any, as the justice of the case may require.

Under the above provisions when read together, this court has power to enlarge the 24 time within which an appeal to the Court of Appeal may be lodged and grant a consequential extension of time for doing any act as the justice of the case requires. However this power is only exercisable upon proof of sufficient/good cause.


What constitutes sufficient cause was expounded in *Hadondi Daniel* 3 *vsYolamEgondi Court of Appeal Civil Appeal No 67 of 2003 thus*: *"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*

- 6 *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".* - 9 In *Kabarole District Local Government Vs. Gun Paper Industries Limited, Misc. Application No. 102 of 2022* I have previously commented on the same issue thus: *"It is my understanding that whether a particular cause is sufficient or not is a* - 12 *matter for judicial determination taking into account the facts of the case. Each decision would depend entirely on the particular facts of the case. The events occurring before the expiration of the time provided for under the law may be* - 15 *relevant. Where a party has not been grossly negligent or palpably indifferent in prosecuting the case, the delay may be excused to afford granting an extension. It appears to me that in circumstances where the denial to grant an extension would* - 18 *occasion an injustice or lead to multiplicity of suits, or where in the court's consideration justice can be better served after hearing from both side especially in land matters, an extension should be granted. This is intended to ensure that justice* - 21 *is done to all no matter the faults, mistakes, lapses and minor procedural irregularities that do not go to the roots of the administration of justice."* - 24 In *Boney M. Katatumba Vs Waheed Karim* (*Administrator of late Suleiti Haji's Estate SC, xvii application No. 27 of 2007), while considering an application for extension of time within which to appeal, Justice Mulenga (RIP) observed thus: "…..*


*For example an application that is brought promptly will be considered more sympathetically than one that is brought after unexplained inordinate delay. But*

- 3 *even where the application is unduly delayed the Court may grant theextension if shutting out the appeal may appear to cause injustice."* - 6 Therefore, what amounts to sufficient cause depends on the unique facts of each case. The overall consideration being that court must protect the right of an aggrieved party to appeal while guarding against permitting frivolous applications - 9 or appeals or those presented with inordinate delays from going to the appellate court. I have addressed my mind to the reasoning in **Thuita Mwangi V Kenya AirwaysLtd [2003] eKLR** where court laid down considerations which should 12 followed in applications of this nature which I am persuaded to adopt thus; - **i) The period of delay;** - **ii) The reason for the delay;**

| 15 | iii)<br>The arguability of the appeal; | |----|-----------------------------------------------------------------------| | | iv)<br>The degree of prejudice which could be suffered by the | | | Respondent if the extension is granted; | | 18 | v)<br>The importance of compliance with time limits to the particular | | | litigation or issue; and | | | vi) The effect if any on the administration of justice or public | | 21 | interest if any is involved. |

In the present application, the judgment that the appellants wish to appeal was delivered on 30th November 2023. The notice of appeal was filed out of time on 8th 24 February 2024. The application for leave to appeal out of time was filed on 6th March 2024. The applicant indicated that the judgment was delivered in their absence as


they were not aware of the judgment date. These facts are not contested by the Respondents. It is indeed true that judgment was delivered in the absence of the 3 applicants. Although the judgment notice was shared on the online platform where the applicant's lawyer is a member, I will not visit the lawyer's omission on the applicants for the lawyer's failure to follow up and attend to the judgment and notify

- 6 the applicants. An error of counsel should not necessarily be visited on his client. See *Zam Nalumansi - vs - Suleman Lule, Civil Application No. 02 of 1999, (SCU),* (unreported). From the affidavit of the 2 nd applicant, the applicants acted - 9 with vigilance in that, immediately upon learning about the judgment of this court, they instructed their lawyers to lodge a notice of appeal. The notice of appeal was filed on 8th February 2024. This application was filed on 6th March 2024. 12 Considering all the facts of this case, I find that the justice of the case tilts towards granting the application. Inadvertence of counsel constituted the necessary sufficient reason to justify grant of the application. - 15

I am therefore inclined to grant this application and hereby grant leave to the applicants to appeal the decision of this court in Civil Suit No. 0014 of 2016 out of 18 time.

The applicants also prayed for an order that the notice of appeal filed and served out

- 21 of time be validated. Section 66 of the *Civil Procedure Act*, confers a right of appeal from decrees of the High Court to the Court of Appeal. Rule 76 (2) of *The Judicature (Court of Appeal Rules) Directions* requires lodgment of a notice of appeal in the - 24 High Court within fourteen days after the date of the decision against which it is desired to appeal to the Court of Appeal. The applicant has a right to apply for enlargement of time to file the notice of appeal. I find that the application for an


order that the notice of appeal filed and served out of time be validated, should have been preceded by an application for enlargement of time to file the notice of appeal,

- 3 and it could have been done in this same application as one of the orders sought, which was not done. - 6 In *Tushabe Cris versus Co-operative Bank Ltd (In Receivership / Statutory Liquidation), Supreme Court Civil Application No. 08 of 2028* which counsel for the applicant sought to rely upon, the orders sought were as follows: - 9 **1. The time for filing the Notice of Appeal in Court of Appeal No. 75 of 2005 be abridged.** - **2. The Notice of Appeal filed in this court be validated.** - 12 **3. Leave be granted to the applicant to file and serve the Notice of appeal out of time.** - **4. The costs of and / or incidental thereto be granted.** - 15

In this case, no order was sought by the applicants to file and serve the Notice of Appeal out of time that could have given this court the basis for consideration to go 18 ahead to validate the Notice of Appeal that had already been filed out of time. I therefore strike out the applicants' Notice of Appeal filed in this court on 8th February 2024 as being incompetent for being filed out of time without seeking or 21 obtaining leave of court. I instead order that the applicants shall now file and serve a fresh Notice of Appeal.

24 Consequently, this application succeeds with the following orders:


- **1. That leave is granted to the applicant to appeal out of time the decision of this court in Civil Suit No. 0014 of 2016 to the Court of Appeal.** - 3 **2. The appellant shall file and serve a fresh Notice of Appeal within 14 days from the date of delivery of this ruling.** - **3. The costs of this application shall abide the outcome of the appeal to the** - 6 **Court of Appeal.**

**It is so ordered.**


Vincent Wagona

**High Court Judge**

12 **FORT-PORTAL DATE: 31/05/2024.**