Wakilii

Kachope v Nyakwera (Miscellaneous Application 61 of 2023)

High Court · [2023] UGHCCD 317 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate civil appeal arising from land dispute
Decision
Dismissal order set aside; appeal reinstated for hearing on merits subject to filing deadlines

Observed later treatment

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Holding

Held that where an affidavit contains material falsehoods, the offending parts may be severed and the remainder relied upon if capable of supporting the application. The court found that the applicant's affidavit contained false statements about his absence and lack of knowledge of the hearing date, but these paragraphs were severed. Despite a seven-month delay in applying for reinstatement, the court exercised its discretion under section 98 of the Civil Procedure Act to set aside the dismissal order in the interests of substantive justice, given that the underlying dispute concerned land and should be determined on the merits.

Outcome

Dismissal order set aside; appeal reinstated for hearing on merits subject to filing deadlines

Facts

The applicant filed Civil Appeal No. 18 of 2021 against a decision in a land dispute. On 7 November 2022, when the appeal was called for hearing, the applicant was present but could not satisfactorily explain the whereabouts of his lawyer. The court dismissed the appeal for want of prosecution. Seven months later, on 20 June 2023, the applicant filed this application seeking to set aside the dismissal order. In his supporting affidavit, the applicant claimed he was sick and absent when the appeal was dismissed and had no knowledge it had been fixed for hearing. The respondent opposed the application, pointing out that the applicant was in fact present on the dismissal date and that the affidavit contained material falsehoods. The respondent also argued that the applicant had been dilatory in prosecuting the appeal and that there must be an end to litigation.

Issues

  1. Whether the affidavit in support of the application is defective.
  2. Whether there is sufficient cause for reinstatement of the dismissed civil appeal.
  3. What remedies are available to the parties.

Orders

  • The dismissal order dated 7th November 2022 dismissing Civil Appeal No. 18 of 2021 is set aside and the appeal shall be heard on merits.
  • The applicant shall file and serve his submissions in support of the appeal within two weeks from the date of this ruling, failure whereof the appeal shall stand dismissed with costs without notice.
  • After service, the respondent shall file and serve her submissions within two weeks after service.
  • The applicant shall pay the costs of this application to the respondent.

Rules and key headnotes

Civil Procedure — Affidavits — Material Falsehoods — Severance of Offending Parts
Where an affidavit contains material falsehoods, the offending parts may be severed and the remainder of the affidavit relied upon, provided the remaining content is capable of supporting the application.
Civil Procedure — Reinstatement of Dismissed Appeals — Sufficient Cause — Discretion of Court
Under section 98 of the Civil Procedure Act and section 33 of the Judicature Act, the court has discretion to reinstate an appeal dismissed for want of prosecution where the applicant demonstrates sufficient cause, taking into account the interests of substantive justice and the nature of the subject matter in dispute.
Civil Procedure — Delay — Land Disputes — Interests of Substantive Justice
A delay of seven months in applying to set aside a dismissal order, though unreasonably long, may be excused where the underlying dispute concerns land and the interests of substantive justice require that the matter be concluded on the merits.

Legislation cited (5)

Cases cited (10)

  • Abel Balemesa v Yesro Mugenyi (HCMA No. 126 of 2019)
  • Wakabala & Co. Advocates v Banyenzaki (HCMA No. 802 of 2019)
  • Bety City (U) Ltd (MA No. 1177 of 2022)
  • Bitaitana v Kananura (1972) HCB 26 OF 2006
  • Brown v Dean (1910) AC 373
  • Re Suo Moto Proceedings (2005) 5 SCC 289
  • Besigye Kiiza v Museveni Yoweri Kaguta and Another (Election Petition No. 1 of 2001)
  • Yona Kanyomozi v Motor Mart (U) Ltd (Supreme Court Civil Application No. 6 of 1999)
  • Rutuku Francis & 5 Others v Eliphas Ndamagye (Court of Appeal Civil Appeal No. 111 of 2017)
  • Tiberio Okeny & Another v Attorney General and 2 Others (Court of Appeal Civil Appeal No. 51 of 2001)

Full judgment

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Kachope v Nyakwera (Miscellaneous Application 61 of 2023) [2023] UGHCCD 317 (25 September 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.