Ayub v Kabambalo (Civil Appeal 32 of 1995)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Supreme Court dismissed the appeal. Although the suit had been dismissed under Order 15 r.5 of the Civil Procedure Rules, which the court considered inapplicable, no injustice resulted and the dismissal rested on valid grounds. The court held that the application for review under Order 42 r.2 was misconceived: a challenge to the effectiveness of service and restoration of a suit dismissed for non-appearance should have been brought under Order 9 r.20. The appellant was guilty of laches, having caused inordinate delay over some eight years without sufficient cause. Article 126(2) of the Constitution is not a licence for non-compliance with the rules of procedure.

Outcome

Appeal dismissed; the High Court's refusal to review the dismissal of the suit stands

Facts

In 1986 the appellant sued the respondent for recovery of land comprised in Kyaddondo Block 244 Plot 2944, measuring 0.20 hectares at Kisugu, Kampala. The suit first came up for hearing in December 1990 but was adjourned, and thereafter was repeatedly adjourned several more times at the appellant's instance. On 30 November 1993, before Ongom J., counsel for the appellant sought a further adjournment on the ground that the appellant was in Hong Kong; the trial judge refused and dismissed the suit for want of prosecution with costs to the respondent. The appellant applied to review the dismissal. That application was heard by Ouma J. and dismissed by his ruling of 27 February 1995. The appellant appealed to the Supreme Court. At the hearing the appellant appeared in person, his counsel having declined the brief, and put in written submissions prepared with a lawyer brother's assistance.

Issues

1. Whether the trial judge erred in dismissing the appellant's application for review of the order that dismissed his suit for want of prosecution.
2. Whether an application to challenge the effectiveness of service and restore a dismissed suit was properly brought as a review under Order 42 r.2.
3. Whether the appellant had shown sufficient cause to excuse the delay and obtain restoration of the suit.

Orders

• Appeal dismissed.
• Costs of the appeal awarded to the respondent.

Rules and key headnotes

Legislation cited (6)

• Civil Procedure Rules Order 15 r.5
• Civil Procedure Rules Order 9 r.19
• Civil Procedure Rules Order 9 r.20
• Civil Procedure Rules Order 42 r.2
• Civil Procedure Act s.101
• Constitution of Uganda Article 126(2)

Cases cited (5)

• M.B. Automobiles v Kampala Bus Service (1966) E.A. 480
• Shabani v Karanda Co. Ltd (1973) E.A. 497
• National Union of Clerical Commercial Professional and Technical Employees v National Insurance Corporation (Civil Appeal No. 17 of 1993)
• Rawal v Mombasa Hardware Ltd (1968) E.A. 392
• Acolla v Mutekanga (1970) E.A. 429

Cases citing this judgment (5)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Timbigamba Simon and Others v Ker Kwaro Palabek and Others (Civil Misc. Application No. 150 of 2021)
• Komax Motor Vehicle Company Limited and 2 Others v Idha (Miscellaneous Application 15 of 2023)
• Ochwo Olanya v Ochaya and Another (Miscellaneous Application No. 30 of 2022)
• Altaff Hussein & 2 Ors v Eguma Blasio T.A zebra Hotel Arua (MISCELLANEOUS APPLICATION No. 0047 OF 2017)
• Lonrho Cotton (U) Ltd v Rwakiseta (Civil Application No.53 of 2000)

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