Wakilii

Joel Kato & Anor v Nuulu Nalwoga (Civil Miscellaneous Application 4 of 2012)

Supreme Court · [2012] UGSC 2 · 2012 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for extension of time to serve a Notice of Appeal, or to validate late service of the Notice of Appeal.
Decision
Application granted; time extended and Notice of Appeal to be served anew within 7 days, with costs of the application borne by the applicants.

Observed later treatment

Cited — treatment unverified cited in 8 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

No adverse treatment recorded Cited 8 times with no adverse treatment recorded; not yet tested on the merits. Citations steady — 8 citing cases on record, 7 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Supreme Court held it had unfettered discretion under Rule 5 of its Rules to extend time, with no concurrent jurisdiction with the Court of Appeal, so the application was properly before it. Although some affidavit paragraphs were hearsay and disregarded, this did not nullify the whole affidavit. The failure to serve the Notice of Appeal within time, being the inadvertent lapse of the applicants' former counsel, constituted sufficient cause; the applicants had been vigilant and had not contributed to the 33-day delay. The court exercised its discretion to extend time and ordered the Notice of Appeal be served anew within 7 days.

Outcome

Application granted; time extended and Notice of Appeal to be served anew within 7 days, with costs of the application borne by the applicants.

Facts

The applicants instructed lawyers to appeal a Court of Appeal decision in Civil Appeal No. 79 of 2009. Their former lawyers lodged a Notice of Appeal in the Court of Appeal on 28 March 2011 and requested the typed record of proceedings the same day. However, the Notice of Appeal should have been served on the respondent by 4 April 2011 but was served only on 6 May 2011, about 33 days late. The applicants, who were out of the country, granted a power of attorney to Ssempenja Peter Prevato to follow up the appeal. On inquiring at the Supreme Court Registry, he learned the appeal had not been filed and that the respondent had applied to strike out the Notice of Appeal as served out of time. The applicants then engaged new lawyers to seek extension of time. The late service was attributable to the inadvertent omission of the applicants' former counsel.

Issues

  1. Whether the application was properly before the Supreme Court or should first have been filed in the Court of Appeal under Rule 41(1).
  2. Whether the supporting affidavit should be disregarded for containing hearsay evidence.
  3. Whether the applicants had shown sufficient cause to extend time within which to serve the Notice of Appeal, or to validate its late service.

Orders

  • The respondent's objections are dismissed.
  • Time for service of the Notice of Appeal is extended.
  • The Notice of Appeal is to be served anew on the respondent or her counsel within 7 days from the date of this ruling.
  • The costs of this application are to be met by the applicants.

Rules and key headnotes

Civil Procedure — Extension of Time — Jurisdiction of the Supreme Court under Rule 5
Under Rule 5 of the Judicature (Supreme Court Rules) Directions the Supreme Court has unfettered discretion to extend time for sufficient reason, and there is no concurrent jurisdiction with the Court of Appeal in applications for extension of time, so such an application is properly brought directly before the Supreme Court.
Civil Procedure — Extension of Time — Inadvertence of Counsel as Sufficient Cause
The inadvertent omission, mistake or lapse of counsel in failing to serve a Notice of Appeal within time can constitute sufficient cause to extend time, and a litigant's interests should not be defeated by the mistakes and lapses of his counsel.
Civil Procedure — Extension of Time — Requirement of Diligence by the Litigant
Where counsel is guilty of a lapse, extension of time may nonetheless be refused unless the litigant shows that he was vigilant and did not himself contribute to the delay; lay litigants are not to be blamed for delays in matters that fall within the province of professional lawyers.
Evidence — Affidavits — Hearsay and Severance of Offending Paragraphs
An affidavit supporting a formal application must be made by a person having knowledge of the facts, and the hearsay rule applies to affidavits; however, the presence of some hearsay paragraphs does not render the entire affidavit a nullity — the offending paragraphs are simply disregarded while the remainder stands.
Evidence — Affidavits — When a Statement is Not Hearsay
A paragraph is not hearsay merely because it includes the words "I was informed by" where it refers to documents already on the court file whose authenticity is unchallenged, or where it recounts what the applicants themselves told the deponent as a necessary explanation rather than the truth of a third party's assertion.

Legislation cited (8)

  • Judicature (Supreme Court Rules) Directions SI 13-11 r.2(2)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.5
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.41(1)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.42(1)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.42(2)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.43(1)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.50
  • Constitution of Uganda art.129

Cases cited (10)

  • Mulowooza & Bros Ltd v N. Shah & Co. Ltd (Civil Appeal No. 20 of 2010)
  • Attorney General v AKPM Lutaaya (Civil Appeal No. 12 of 2007)
  • Florah Rwamarungu v DFCU Leasing Co. Ltd (SCC Application No. 11 of 2009)
  • Margaret Kato & Joel Kato v Nuulu Nalwoga (SCC Application No. 12 of 2011)
  • F.L Kaderbhai & Anor v Shamsherali M. Zaver Virji & 2 Ors (SCC Application No. 20 of 2008)
  • Joseph Muluta v Sylvano Katama (SCC Application No. 2 of 1999)
  • Eric Tibebaga v Fr. Narsensio Begumisa & Ors (SCC Application No. 18 of 2002)
  • Godfrey Mageze & Brian Mbazira v Sudhir Ruparelia (SCC Application No. 10 of 2002)
  • Boney Katatumba v Waheed Karim (SCC Application No. 27 of 2007)
  • Rtd. Col. Kizza Besigye v Yoweri Kaguta Museveni & Electoral Commission (Presidential Election Petition No. 1 of 2006)

Cases citing this judgment (8)

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.

Full judgment

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

Joel Kato & Anor v Nuulu Nalwoga (Civil Miscellaneous Application 4 of 2012) [2012] UGSC 2 (26 June 2012)
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.