Atria Roffino v Buga Samuel (Miscellaneous Application No. 63 of 2023)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for leave to appeal out of time dismissed. The applicant failed to adduce documentary evidence proving he instructed his former lawyer to file an appeal within the prescribed thirty-day period or that the lawyer withdrew from representing him. The court held that the burden of proof lies on the applicant to establish good cause for the delay, and mere assertion without supporting evidence is insufficient. The principle that a lawyer's mistake cannot be visited on an innocent litigant does not apply where the applicant exhibits dilatory conduct or fails to establish sufficient reason for the delay.

Outcome

Application for leave to appeal out of time dismissed with costs to the respondent

Facts

The applicant sought leave to appeal out of time against a judgment delivered by the Magistrate Grade One of Koboko on 31 January 2023 in Civil Suit No. 003 of 2021. The applicant claimed he instructed his former lawyer, M/s Ederu Gama Advocates & Solicitors, to file a memorandum of appeal within the thirty-day period, but the lawyer failed to do so and later withdrew from the matter. By the time of withdrawal, the appeal period had expired. The applicant filed this application three and a half months after the judgment, shortly after the decree was extracted on 14 March 2023. The respondent opposed the application, arguing that the applicant provided no documentary evidence of instructions to his lawyer or of the lawyer's withdrawal, and that the application was an abuse of process.

Issues

1. Whether the applicant established sufficient cause to be granted leave to appeal out of time.
2. Whether the applicant discharged the burden of proving that the delay in filing the appeal was due to his former lawyer's conduct.

Orders

• Application dismissed.
• Costs awarded to the respondent.

Rules and key headnotes

Legislation cited (9)

• Civil Procedure Act Cap 71 (now Cap. 282) s.98
• Civil Procedure Act Cap 282 s.79(1)(a)
• Civil Procedure Act Cap 282 s.96
• Judicature Act Cap 13 (now Cap. 16) s.33
• Evidence Act Cap 8 s.101
• Evidence Act Cap 8 s.102
• Evidence Act Cap 8 s.103
• Civil Procedure Rules Order 51 rule 6
• Civil Procedure Rules Order 52 rules 1 and 3

Cases cited (1)

• Kananura Andrew Kansiime v Richard Henry Kaijuka (Civil Reference No. 15 of 2016)

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