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Prof Tulya Muhika v Bweyakye and 3 Others (103 of 2020; Civil Application 100 of 2020)

Court of Appeal · [2023] UGCA 154 · 2023 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for leave to file and serve a record of appeal out of time (extension of time), together with a related application for stay of execution.
Decision
Application for extension of time granted; applicant permitted to file and serve record of appeal out of time.

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Holding

The Court of Appeal granted the applicant leave to file and serve his record of appeal out of time. Applying rule 5 of the Judicature (Court of Appeal Rules) Directions, the Court held that sufficient reason had been shown: the applicant had instructed his former advocates to appeal, but they failed to file the record of appeal in time while he was deployed in Somalia, and his new advocates were impeded by COVID-19 restrictions. The Court reaffirmed that the omission or inadvertence of counsel should not be visited on the litigant, and that in land matters parties should be allowed to exhaust their rights of appeal. The application was found to have merit and was granted.

Facts

On 25 October 2015 the applicant instituted Civil Suit No. 46 of 2015 against the respondents in the High Court at Kabale for recovery of land. The respondents raised a preliminary objection that the suit was time-barred under the Limitation Act, and on 21 January 2019 the trial court entered judgment against the applicant with costs, rejecting the plaint under Order 7 rule 11(d) of the Civil Procedure Rules. The applicant instructed his former lawyers to appeal; they filed the Notice of Appeal on 26 February 2019 and obtained certified records of proceedings in May 2019, but failed to file the record of appeal within the 60-day period, which expired in August 2019. The applicant, who was deployed in Somalia, learned of this only upon his return. He instructed new lawyers, but COVID-19 government restrictions prevented timely action. He filed this application for extension of time on 15 January 2020.

Issues

  1. Whether the applicant had shown sufficient reason to warrant an extension of time to file and serve his record of appeal out of time under rule 5 of the Judicature (Court of Appeal Rules) Directions.
  2. Whether the failure of the applicant's former advocates to file the record of appeal in time should be visited upon the applicant.

Orders

  • The applicant is granted leave to file and serve his record of appeal out of time.
  • Costs in Applications No. 100 of 2020 and No. 103 of 2020 arising from High Court Civil Suit No. 046 of 2015 shall abide the outcome of the main cause.

Key headnotes

Civil Procedure — Extension of Time — Sufficient Reason under Rule 5 of the Court of Appeal Rules
An extension of time to take a procedural step is a discretionary remedy granted only upon demonstration of sufficient reason, which is determined on a case-by-case basis with regard to the circumstances of each case; the court may accept either a reason that prevented the applicant from acting in time or other reasons why the appeal should be allowed to proceed out of time.
Civil Procedure — Extension of Time — Mistake or Negligence of Counsel Not Visited on Litigant
Where a litigant instructed an advocate in time but the advocate failed to take the required step, the omission, inadvertence or negligence of counsel should not be visited on the litigant so as to deny him justice.
Civil Procedure — Land Disputes — Preference for Determination of Appeals on the Merits
In land cases it is proper to allow parties to exhaust their legal rights of appeal so that the dispute may be determined on its merits, provided the party has not been guilty of a lack of diligence.

Legislation cited (8)

  • Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 2(2)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 5
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 43(1) and (2)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 44
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 76(1) and (2)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 83(1)
  • Civil Procedure Rules Order 7 rule 11(d)
  • Limitation Act

Cases cited (14)

  • Njagi v Munyiri, [1975] EA 197
  • St. Kizito Youth Farm Ltd v Attorney General (Civil Application No. 58 of 1995)
  • Tiberio Okeny and Another v Attorney General and 2 Others (Civil Appeal No. 51 of 2001)
  • Eng. Ephraim Turinawe & Anor v Molly Turinawe & 4 Ors, SCC Civil Application No. 36 of 2077
  • Rosette Kizito v Administrator General, [1993] 5 KLR 4
  • Herbert Semakula Musoke and Another v Lawrence Nabamba and 2 Others (Supreme Court Civil Appeal No. 22 of 2019)
  • Uganda v Ntambi Vincent (Criminal Application No. 8 of 2019)
  • Hadondi Daniel v Yolamu Egondi (Civil Appeal No. 67 of 2003)
  • Kananura Andrew Kansiime v Richard Henry Kaijuka, SC Civil Reference No. 15 of 2076
  • Boney M. Katatumba v Waheed Karim (Civil Application No. 27 of 2007)
  • Florence Nabatanzi v Naome Binsobodde (Civil Application No. 6 of 1987)
  • Tropical Africa Bank Ltd v Grace Were Muhwana (Civil Application No. 3 of 2012)
  • Godfrey Magezi and Brian Mbazira v Sudhir Ruparelia (Miscellaneous Application No. 6 of 2003)
  • Kasaala Growers Cooperative Society v Kakooza Jonathan and Another (Civil Application No. 24 of 2010)
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.