Wakilii

Aisha Nakitende v Wanume (Civil Application No. 255 of 2016)

Court of Appeal · [2017] UGCA 152 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for extension of time to file and serve notice of appeal and memorandum of appeal out of time
Decision
Application for extension of time granted; notice of appeal validated and applicant ordered to file memorandum of appeal within 15 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal granted an application to extend time to file and serve a notice of appeal out of time. The applicant learned of the judgment against her long after the 14-day appeal period had expired due to her former counsel's failure to inform her. The court held that the negligence, mistake or omission of counsel constitutes sufficient cause and should not be visited on the innocent litigant. The respondent failed to prove effective service of the judgment notice on the applicant's counsel, as no affidavit of service was attached. The applicant was not guilty of dilatory conduct, and refusal would occasion injustice. The notice of appeal was validated and the applicant ordered to file the memorandum within 15 days.

Outcome

Application for extension of time granted; notice of appeal validated and applicant ordered to file memorandum of appeal within 15 days

Facts

The applicant and another person were sued by the respondent in High Court Civil Suit No. 438 of 2014. The applicant was represented by M/S Bashasha & Co. Advocates, whom she instructed to file written submissions and provide her a draft for perusal, which she was never given. On 4 August 2016 judgment was entered against her declaring her a trespasser on the suit land at Plot 2-8 Nyondo Close, Kirumba-Katwe, Masaka Municipality, with a permanent injunction issued. Her lawyers informed her of the judgment on 9 September 2016, long after the 14-day appeal period had lapsed. She instructed new counsel, M/S Kakeeto, Ssekitto Advocates, who perused the file and confirmed time to appeal had passed. The respondent alleged that the applicant's former counsel had been served the judgment notice by the High Court process server on 3 August 2016, the same day his own counsel was served, but no affidavit of service was attached and the annexed notice bore only the respondent's counsel's stamp.

Issues

  1. Whether the applicant established sufficient cause for the court to extend the time within which to file and serve the notice of appeal.
  2. Whether the applicant was guilty of dilatory conduct.
  3. Whether any injustice would be caused if the application were not granted.

Orders

  • Application granted.
  • The notice of appeal filed and served outside the stipulated time is validated.
  • The applicant is ordered to file and serve the memorandum of appeal and record of appeal within 15 days from the date of this ruling.
  • Costs of the application awarded to the respondent.

Rules and key headnotes

Civil Procedure — Extension of Time — Sufficient Cause — Mistake or Negligence of Counsel
The oversight, mistake, negligence or error of counsel should not be visited upon the party the counsel represents and constitutes sufficient cause for granting an application for extension of time to appeal.
Civil Procedure — Extension of Time — Governing Principles
On an application for extension of time, the applicant must satisfactorily explain the reason for the delay, must not be guilty of dilatory conduct, and the court must consider whether injustice would result from refusing or granting the application, each case being decided on its own facts.
Evidence — Burden of Proof — Proof of Service
He who alleges must prove; where a respondent asserts that service of a judgment notice was effected on the applicant's counsel, the burden lies on the respondent to prove that service, and it is not discharged where no affidavit of service is attached and the notice bears only the respondent's counsel's endorsement.

Legislation cited (9)

Cases cited (13)

  • Molly Kyalikunda Turinawe and Others v Engineer Ephraim Turinawe and Another (Civil Appeal No. 27 of 2010)
  • Kaderbhai and Another v Shamsherali and 2 Others (Civil Application No. 20 of 2008)
  • Mutaba Barisa Kweterana Ltd v Bazirakye Yeremiya and Another (Civil Application No. 158 of 2014)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Captain Phillip Ongom v Catherine Nyero Owota (Civil Appeal No. 14 of 2001)
  • Masaka Municipal Council v Gerald Ssemwogerere (Civil Application No. 57 of 1998)
  • Mugo and ors vs Wanjiru and anor [1970] EA 481 at p.484
  • Shanti vs Hindocha and ors [1973] EA 207
  • Attorney General v A.K.P.M Lutaya (Civil Application No. 12 of 2007)
  • Zamu Nalumansi and Another v Sulaiman Lule (Civil Application No. 2 of 1992)
  • Mulowooza & Bros Ltd v N. Shah & Co Ltd (Civil Application No. 20 of 2010)
  • Yowasi Kabiguruka v Samuel Byarufu C.C.C.A No. 18 of 2008
  • Hajati Safina Nababi v Yafesi Lule (Civil Appeal No. 9 of 1998)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Aisha Nakitende v Wanume (Civil Application No. 255 of 2016) [2017] UGCA 152 (10 February 2017)
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.