Wakilii

Birungi and 3 Others v Namubiru and Another (Family Misc Application 291 of 2023)

High Court · [2023] UGHCFD 138 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to have main suit reheard de novo after it proceeded ex parte
Decision
Application dismissed; main suit to proceed to judgment on existing record

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An application to rehear a matter de novo after it proceeded ex parte was dismissed where the applicants failed to appear on the adjourned hearing date without explanation, despite being given three months' notice. The court found that counsel's accident, which occurred before the first adjournment, did not excuse non-appearance three months later. Rehearing would cause unreasonable delay in a 2019 matter and prejudice the respondents who had diligently prosecuted their case.

Outcome

Application dismissed; main suit to proceed to judgment on existing record

Facts

The applicants sought to have Civil Suit No. 07 of 2019 reheard de novo after it proceeded ex parte. The main suit concerned an estate matter. On 25 February 2022, the applicants informed court that their counsel had been in an accident and could not attend. The matter was adjourned to 10 June 2022. On that date, neither the applicants nor their counsel appeared, and the matter proceeded ex parte with judgment adjourned. The trial judge was subsequently transferred. A locus visit was scheduled for 21 March 2023. Two weeks after being served with notice of the locus visit, the applicants filed this application seeking to rehear the matter, citing counsel's accident, the death of the 4th applicant, and the existence of a related decided case (HCCS No. 18 of 2016). At the locus visit, counsel for the applicants was given an opportunity to put himself on record but chose not to do so.

Issues

  1. Whether the head suit (Civil Suit No. 07 of 2019) should be fixed/rescheduled and heard de novo

Orders

  • The Application is hereby dismissed.
  • Costs to be awarded in the main suit.

Rules and key headnotes

Civil Procedure — Ex Parte Proceedings — Application to Rehear De Novo — Failure to Appear Without Explanation
Where a party fails to appear on an adjourned hearing date without providing any explanation to the court, and the matter proceeds ex parte, the court will not grant an application to rehear the matter de novo where the reason given for the original non-appearance (counsel's accident) occurred months before the adjourned date and does not explain the subsequent failure to attend.
Civil Procedure — Delay — Constitutional Duty to Administer Justice Without Delay
Courts are enjoined under Article 126(2)(b) of the Constitution to administer justice without delay. Where a matter has been pending since 2019 and the plaintiffs have diligently prosecuted their case, granting an application to rehear the matter de novo would constitute an injustice through further delay.
Civil Procedure — Locus in Quo — Opportunity to Participate
Where a party's counsel is given an opportunity at a locus visit to put himself on record and have the matter heard inter partes but chooses not to do so, the court may proceed and the party cannot later complain of being denied an opportunity to be heard.

Legislation cited (5)

Full judgment

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

Birungi and 3 Others v Namubiru and Another (Family Misc Application 291 of 2023) [2023] UGHCFD 138 (14 July 2023)
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.