Butebi Investment Enterprises Ltd v Kibalama Mugwanya (Civil Application No. 354 of 2013)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed the respondent's preliminary objection because he failed to state when he was, or should have been, served. On the substantive application to strike out the appeal, the Court accepted that the respondent had timeously instructed and filed through counsel but that counsel failed to serve the notice of appeal within seven days as required by rule 78. Applying the principle that the mistake of counsel should not be visited on an innocent litigant and that a party should not lightly be denied a hearing, the Court declined to strike out the appeal and directed the Registrar to fix the appeal for hearing.

Outcome

Application to strike out the appeal dismissed; Civil Appeal No. 190 of 2013 to be fixed for hearing

Facts

The applicant sued the respondent in the Chief Magistrates Court of Mengo under summary procedure to recover Ugs. 40,000,000. Summons to apply for leave to appear and defend were issued but the respondent never applied for leave, and judgment was entered against him. The respondent's application to set aside the judgment (Misc. App. No. 14 of 2011) was dismissed, as was a subsequent application for revision (Misc. App. No. 024 of 2012). The respondent then filed Civil Appeal No. 190 of 2013, lodging the notice of appeal and requesting proceedings on 22 July 2013. He filed the memorandum and record of appeal on 16 October 2013 and served the applicant's counsel on 29 October 2013. The respondent conceded that he filed the appeal documents in time but failed to serve the notice of appeal within the seven days required by rule 78, attributing the failure to the negligence of his advocates. The applicant sought to strike out the appeal for failure to take an essential step within the prescribed time.

Issues

1. Whether the respondent's preliminary objection that the application was not served on him was made out.
2. Whether the appeal should be struck out for failure to serve the notice of appeal within the time prescribed by rule 78 of the Court of Appeal Rules.
3. Whether the mistake of counsel in failing to serve within time should be visited on the litigant.

Orders

• The respondent's preliminary objection is dismissed.
• The application to strike out the appeal is dismissed.
• The Registrar is directed to fix Civil Appeal No. 190 of 2013 for hearing in the next convenient session.

Rules and key headnotes

Legislation cited (8)

• Judicature (Court of Appeal Rules) Directions SI 13-10 r.4
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.18(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.43
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.78
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.82
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.83
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.84
• Constitution of the Republic of Uganda 1995 art.126(2)(e)

Cases cited (4)

• Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
• Banco Arabe Espanol v Bank of Uganda [1999] 2 EA 22
• Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696
• National Enterprises Corporation v Mukisa Foods (Civil Appeal No. 42 of 1997)

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