Wakilii

Tumuramye v Tushemereirwe (Civil Application No. 96 of 2016)

Court of Appeal · [2018] UGCA 14 · 2018 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to set aside dismissal of a civil appeal and restore it for hearing
Decision
Application granted; dismissed appeal reinstated for hearing

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Holding

The Court of Appeal considered an application under Rule 100(2) of the Court of Appeal Rules to restore a civil appeal dismissed for non-appearance. The applicant showed that the hearing notice had been served on Kwesiga-Bateyo & Co. Advocates, who no longer represented him, despite a notice of change of advocates being on the court record. The Court held that neither the applicant nor his current counsel were served, which constituted sufficient cause for non-appearance. A vigilant litigant should not be penalised for errors of the court or others not attributable to him. The application was allowed and the appeal reinstated, with costs to abide the outcome of the appeal.

Facts

The applicant had lodged Civil Appeal No. 16 of 2008, which was dismissed for non-appearance with costs to the respondent under Rule 100(1) of the Court of Appeal Rules. The applicant was represented by M/s KGN Advocates, who had filed the notice of appeal and conferencing notices, and a notice of change of advocates had been filed in court on 5 December 2015. However, the hearing notice was served on M/s Kwesiga-Bateyo & Co. Advocates, who no longer had instructions from the applicant. Neither the applicant nor his current counsel received the hearing notice for the day of hearing. The applicant brought this application to set aside the dismissal and restore the appeal, contending that the failure to serve was the basis for his non-appearance. The respondent argued the applicant was lax in following up the appeal.

Issues

  1. Whether the applicant was prevented by sufficient cause from appearing when the appeal was called for hearing, so as to justify restoration of the dismissed appeal under Rule 100(2).

Orders

  • Application allowed.
  • Civil Appeal No. 16 of 2008 reinstated.
  • Costs of this application shall abide the outcome of the appeal.

Key headnotes

Civil Procedure — Restoration of Dismissed Appeal — Sufficient Cause under Rule 100(2)
An appeal dismissed for non-appearance may be restored under Rule 100(2) of the Court of Appeal Rules where the applicant shows he or his counsel was prevented by sufficient cause from appearing; failure to serve the hearing notice on counsel actually on record constitutes such sufficient cause.
Civil Procedure — Service of Hearing Notice — Effect of Notice of Change of Advocates
Where a notice of change of advocates is on the court record, service of a hearing notice on the former advocates is defective, and such defective service does not bind the party.
Civil Procedure — Litigant Not Penalised for Dilatory Conduct of Court or Advocate
A vigilant litigant should not be penalised by the dilatory conduct of his advocate or of the court where he has not directly or indirectly contributed to it.

Legislation cited (4)

  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.43(1)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.100(1)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.100(2)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.99(1)

Cases cited (2)

  • Rosette Kizito v Administrator General and Others (Supreme Court Civil Application No. 9 of 1986)
  • Joseph Muluta v Sylvano Katama (Supreme Court Civil Appeal No. 2 of 1999)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.