Wakilii

Edward Kamana Wesonga v Interim Electral Commission and 2 Others (Election Petition Application No. 36 of 1997)

Court of Appeal · [1999] UGCA 2 · 1999 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to a single judge to reinstate a civil appeal dismissed for want of prosecution
Decision
Application allowed; Civil Appeal No. 17 of 1997 reinstated for hearing

Observed later treatment

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Holding

The court held that the applicant showed sufficient cause under rule 99(2) of the Court of Appeal Rules for failing to appear when his appeal was called, having been misled by his counsel who gave him the wrong hearing date. The negligence of counsel over whose actions the applicant had no control should not be visited on a vigilant litigant. The affidavits were not contradictory since all agreed the applicant had telephone contact with counsel's chambers on 12/9/97; it was immaterial who initiated the call. The applicant acted diligently and promptly, filing within two days. Given the public importance of the election petition, the application was allowed and the appeal reinstated for hearing, with costs to the respondents.

Outcome

Application allowed; Civil Appeal No. 17 of 1997 reinstated for hearing

Facts

The applicant's Civil Appeal No. 17 of 1997 was dismissed for want of prosecution on 15/9/97 when neither the applicant nor his counsel appeared. On 12/9/97 the applicant had contacted his counsel's chambers to ascertain the hearing date and was assured the appeal would be heard on 17/9/97. Relying on this, he attended court on 17/9/97 only to find his appeal had already been dismissed on 15/9/97. The wrong date had originated from a mistake by counsel's law clerk. Two days after learning of the dismissal, on 17/9/97, the applicant filed a notice of motion supported by four affidavits seeking reinstatement of the appeal. The underlying appeal concerned an election petition affecting a constituency. The respondents challenged the supporting affidavits as contradictory on who initiated the telephone call, but all affidavits agreed contact occurred on 12/9/97 and that the applicant was informed of the 17/9/97 date.

Issues

  1. Whether the applicant was prevented by sufficient cause from appearing when the appeal was called for hearing under rule 99(2) of the Court of Appeal Rules.
  2. Whether the negligence of the applicant's counsel in supplying a wrong hearing date should be visited on the applicant.
  3. Whether the supporting affidavits were fatally defective for inconsistency as to who telephoned whom.

Orders

  • Application allowed.
  • Civil Appeal No. 17 of 1997, dismissed on 15/9/97, reinstated for hearing.
  • Respondents to get the costs of this application.

Rules and key headnotes

Civil Procedure — Reinstatement of Dismissed Appeal — Sufficient Cause under Court of Appeal Rules r.99(2)
To succeed in reinstating an appeal dismissed for want of prosecution under rule 99(2), an applicant must satisfy the court that he was prevented by sufficient cause from attending; the test is whether he intended to attend and did the best he could to attend but in vain.
Civil Procedure — Mistake of Counsel — Whether Visited on Client
The negligence of counsel, over whose actions the client has no control, should not be visited on a vigilant litigant so as to deny him the right to be heard on appeal, though each case must be considered on its own merits.
Civil Procedure — Affidavit Evidence — Alleged Inconsistencies
An attack on supporting affidavits for inconsistency will fail where the affidavits agree on the material fact; a discrepancy as to who initiated a telephone call is immaterial where all deponents confirm the relevant communication took place.

Legislation cited (3)

  • Court of Appeal Rules 1996 r.55
  • Court of Appeal Rules 1996 r.99(2)
  • Court of Appeal Rules 1996 r.99(5)

Cases cited (5)

  • Ahamada B. Zirondomu vs. Mary Kyamulabi [1975] HCB 337
  • Kyobe Senyange vs. Naks Ltd. [1980] HCB 31
  • National Insurance Corporation vs. Mugenyi & Co. Advocates, [1987] HCB 28
  • National Insurance Corporation vs. Mugenyi and Co. Advocates [1987] HCB 284
  • Mary Kyamulabi v Ahamada Zorondomu (Civil Application No. 41 of 1979)

Full judgment

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

Edward Kamana Wesonga v Interim Electral Commission and 2 Others (Election Petition Application No. 36 of 1997) [1999] UGCA 2 (6 January 1999)
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.