Wakilii

Bekabye & 3 Ors v Musoke & 2 Ors (Misc. Application No. 453 of 2019)

High Court · [2019] UGHCLD 34 · 2019 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate civil suit for hearing on merits
Decision
Dismissal order set aside; underlying suit reinstated for trial on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court set aside the dismissal order under Order 9 rule 17 of the Civil Procedure Rules. Although the applicants' reason for non-appearance (noise in court corridors preventing them from hearing when their matter was called) did not constitute sufficient cause, the Court found that the applicants had demonstrated an honest intention to prosecute their case by filing the reinstatement application within a reasonable time after learning of the dismissal. The suit was reinstated for hearing on merits.

Outcome

Dismissal order set aside; underlying suit reinstated for trial on merits

Facts

The applicants, administrators of the estate of the late Leuben Nsereko Mukasa, instituted Civil Suit No. 254 of 2012 against the respondents (also administrators of the same estate) for recovery of land. The suit was scheduled for hearing on 19th March 2019 at 10:00 am. The 2nd, 3rd and 4th applicants attended Court but stood in the corridors conversing with other litigants. The Court called the matter before 10:00 am, dealing with matters set for mention before those fixed for hearing. When the suit was called, the applicants did not respond, and the Court dismissed it under Order 9 rule 17 for non-appearance of both parties. Upon inquiry by their counsel, the applicants learned of the dismissal. They filed this application on 28th March 2019 seeking to set aside the dismissal order.

Issues

  1. Whether the Applicants were prevented by sufficient cause from attending Court on 19th March 2019 when the suit was dismissed.
  2. Whether the Applicants are guilty of dilatory conduct.
  3. Whether it is just and equitable to grant the application to set aside the dismissal order.

Orders

  • The order dismissing Civil Suit No. 254 of 2012 is set aside.
  • Civil Suit No. 254 of 2012 is reinstated to be tried on its merits.
  • The Applicants to pay costs.

Rules and key headnotes

Civil Procedure — Reinstatement of Dismissed Suits — Sufficient Cause — Test for Setting Aside Dismissal Order
Under Order 9 rule 23 of the Civil Procedure Rules, an order dismissing a suit under rule 17 may be set aside upon proof of sufficient cause for non-appearance. Sufficient cause is demonstrated by showing an honest intention of attending Court and diligence in applying for reinstatement within a reasonable period.
Civil Procedure — Reinstatement — Failure to Hear Matter Called — Effect of Presence in Court Premises
Presence in the Court corridors but failure to hear when a matter is called due to noise from other litigants does not, by itself, constitute sufficient cause for non-appearance. However, where an applicant demonstrates an honest intention to prosecute by promptly applying for reinstatement after learning of dismissal, the Court may exercise discretion to set aside the dismissal order to prevent injustice.

Legislation cited (4)

  • Civil Procedure Rules O.9 r.23
  • Civil Procedure Rules O.9 r.22
  • Civil Procedure Rules O.9 r.17
  • Civil Procedure Rules O.9 r.20

Cases cited (4)

  • Mugo versus Wanjiri E.A (481) quoted in Misc 443/14 Pina Bank Ltd versus Stanbic Bank
  • Motor Mart v Kanyomozi (Supreme Court Civil Appeal No. 06 of 1999)
  • Crown Beverages Ltd v Stanbic Bank of Uganda Ltd (Misc. Application No. 0181 of 2005)
  • Florence Nabatanzi v Naome Zinsobedde (Civil Application No. 5 of 1997)

Full judgment

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

Bekabye_&_3_Ors_Vs_Musoke_&_2_Ors_(Misc._Application_No._453_of_2019)_[2019]_UGHCLD_34_(9_July_2019)
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.