Wakilii

Kabu Auctioneers & Court Bailiffs & Another v F.K. Motors Limited (Civil Application 29 of 2009)

Supreme Court · [2009] UGSC 45 · 2009 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion before a single Justice of the Supreme Court to set aside or modify an earlier order, or to extend time to deposit security for due performance
Decision
Application allowed; time for providing security for due performance extended to 30 November 2009, with the consent terms of stay maintained

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The single Justice held that the court has power under Rule 5 of the Rules of the Supreme Court to extend, for sufficient reason, the time fixed for providing security for due performance. The applicants showed sufficient reason: documented efforts to obtain the agreed insurance guarantee failed owing to the issuer's lack of reinsurance treaty support and other constraints beyond their control. While the applicants' failure to consult the respondent over an alternative guarantor reflected a lack of diligence, it did not amount to bad faith. The application was allowed and time extended to 30 November 2009, the consent terms of stay remaining; the alternative prayer was unnecessary to consider. Costs of the application were awarded to the respondent.

Outcome

Application allowed; time for providing security for due performance extended to 30 November 2009, with the consent terms of stay maintained

Facts

The respondent had sued the applicants in the High Court to enforce a tenancy agreement. After losing at first instance and on appeal, the Court of Appeal found the distress levied against the respondent's properties unlawful and, the properties being unreturnable, ordered the applicants to pay shs 2,300,000,000 in lieu. The applicants filed a notice of appeal to the Supreme Court and sought a stay of execution. By consent on 9 September 2009 execution was stayed pending the intended appeal, on condition that security be provided through a written guarantee from the Insurance Company of East Africa Ltd by 18 September 2009. The intended issuer was unable to provide the guarantee, citing lack of reinsurance treaty support and other internal constraints. The applicants instead filed a guarantee from East African Underwriters Ltd and applied to extend the time for providing security to 30 November 2009.

Issues

  1. Whether the applicants showed sufficient reason for the court to extend time, under Rule 5, within which to provide security for due performance.
  2. Whether the application was made in bad faith, given the applicants' failure to consult the respondent before proposing an alternative guarantor.

Orders

  • Application allowed and the time within which the applicants are to provide security extended to 30th November 2009.
  • The terms of stay of execution in the consent order of 9th September 2009 remain.
  • The applicants to pay the respondent's costs of this application.

Rules and key headnotes

Civil Procedure — Extension of Time — Power to Extend Time for Sufficient Reason under Rule 5
The court has discretionary power under Rule 5 of the Rules of the Supreme Court to extend the time prescribed by the Rules or by a decision of the court for the doing of any act, including the provision of security for due performance, where the applicant shows sufficient reason.
Civil Procedure — Extension of Time — Sufficient Reason — Inability to Perform Through Circumstances Beyond Control
Documented and continuing efforts to comply with a consent condition that fail through circumstances beyond the applicant's control constitute sufficient reason for an extension of time, and a failure to consult the opposing party reflecting lack of diligence and reasonableness does not, without more, establish bad faith.
Civil Procedure — Citation of Authorities — Duty of Counsel under Rule 27 to Supply and Serve Cited Rulings
Counsel who relies on an unreported or late-cited authority must, under Rule 27 of the Rules of the Supreme Court, furnish the ruling to the court and serve it on opposing counsel; expecting the court to research and locate the authority demonstrates a lack of diligence and is to be deprecated.

Legislation cited (7)

  • Rules of the Supreme Court r.2(2)
  • Rules of the Supreme Court r.5
  • Rules of the Supreme Court r.42(1)
  • Rules of the Supreme Court r.43(1)
  • Rules of the Supreme Court r.47(2)
  • Rules of the Supreme Court r.27
  • Rules of the Supreme Court r.27(5)

Cases cited (3)

  • Banco Arabe Espanol v Bank of Uganda (Civil Application No. 8 of 1999)
  • Ahmed Bholim v Car General Ltd (Civil Application No. 12 of 2002)
  • Uganda Telecom v Tanzanite Corporation (Civil Application No. 110 of 2003)

Full judgment

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

Kabu Auctioneers & Court Bailiffs & Another v F.K. Motors Limited (Civil Application 29 of 2009) [2009] UGSC 45 (24 November 2009)
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.