Wakilii

Kakura v Okedongo (Civil Miscellaneous Appeal 10 of 2022)

High Court · [2024] UGHC 867 · 2024 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Assistant Registrar's ruling dismissing application for enlargement of time to file memorandum of appeal
Decision
Orders of Assistant Registrar set aside; time enlarged for filing memorandum of appeal subject to strict conditions

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal and set aside the Assistant Registrar's dismissal of the application for enlargement of time. The court held that the appellant had shown sufficient cause (illness) to justify the enlargement despite dilatory conduct, and that an advocate from the firm representing a party may depone an affidavit on non-contentious matters within their knowledge without requiring separate authority from the client.

Outcome

Orders of Assistant Registrar set aside; time enlarged for filing memorandum of appeal subject to strict conditions

Facts

The appellant had filed a civil suit in 2004 which resulted in judgment for the respondent on 30 September 2015. The appellant filed a notice of appeal on 21 October 2015, followed by an application for enlargement of time to file a memorandum of appeal (M.A. No. 91/2016), which was dismissed on 11 November 2020. After almost two years, on 4 May 2022, the appellant filed another application (M.A. No. 58/2022) for enlargement of time. The Assistant Registrar dismissed this application on grounds of dilatory conduct, noting the matter had been in court for eighteen years. The appellant then filed the instant appeal against the Assistant Registrar's dismissal, citing illness as the reason for delay. The respondent opposed the application, with an affidavit deposed by Tumusiime Justus, an advocate from the firm representing the respondent.

Issues

  1. Whether there was sufficient cause to enlarge time within which to file a memorandum of appeal.
  2. Whether the learned Assistant Registrar erred in law and fact when he held that a land matter is not contentious and a party not to a suit can depone on an affidavit without any authority thus causing a miscarriage of justice.

Orders

  • Appeal allowed.
  • Assistant Registrar's orders dismissing Miscellaneous Application No. 58 of 2022 set aside.
  • Time enlarged for the Applicant to file memorandum of appeal on conditions.
  • Applicant to file and serve memorandum of appeal within 14 days from the date of the ruling.
  • Applicant to pay the Respondent taxed costs of this application within 60 days from the date of the ruling.
  • Applicant to file a record of appeal within 60 days from the date of the ruling.
  • In default of the above conditions, the appeal shall be dismissed.

Rules and key headnotes

Civil Procedure — Enlargement of Time — Principles for Exercise of Discretion
Enlargement of time is a discretionary power which must be exercised judicially upon proper analysis of the facts and application of the law. The power to grant leave to file an appeal out of time is discretionary and the party seeking such orders must satisfy the court by placing material before it upon which discretion may be exercised. Applications for enlargement of time will not be granted if the delay is inexcusably long, where injustice will be caused to the other party, or where there is no reasonable justification.
Civil Procedure — Enlargement of Time — Sufficient Cause — Dilatory Conduct
Sufficient cause for enlargement of time relates to the inability or failure to take a necessary step within the prescribed time. It does not relate to taking a wrong decision. If an applicant is found guilty of dilatory conduct, time will not be extended. However, the discretion of the court being equitable, even where there is a history of delay, sufficient reason such as illness of the applicant may justify granting the application despite dilatory conduct.
Civil Procedure — Delay — Balancing Interests of Both Parties
The test for dealing with delay is whether the delay is prolonged and, if it is, whether justice can be done despite the delay. Both the plaintiff and defendant must be considered. Delay per se is not the overwhelming factor when considering whether to terminate a matter for want of prosecution or refuse to reinstate a dismissed case.
Civil Procedure — Evidence — Affidavits by Advocates — Regulation 9 Advocates (Professional Conduct) Regulations
An advocate may depone an affidavit to prove a set of facts and is not prohibited from swearing an affidavit when necessary, especially on matters well within their knowledge. Regulation 9 of the Advocates (Professional Conduct) Regulations does not bar an advocate from giving evidence on formal or non-contentious matters of fact in any matter in which they act or appear, provided they are not required to give evidence as a witness. The main intention of the regulation is that an advocate should not act as both counsel and witness in the same case.
Civil Procedure — Affidavits — Authority to Depone
An advocate from the firm representing a client, though not personally a party to the application, does not require separate authority from the client to depone an affidavit in support of an application. The authority is embedded in the instructions given to the firm. The advocate may depone on matters well within their knowledge from the record of the case, which are non-contentious.

Legislation cited (4)

  • Judicature Act s.33
  • Civil Procedure Rules O.50 rr.4, 8, 43
  • Civil Procedure Rules O.52 rr.1, 3
  • Advocates (Professional Conduct) Regulations Regulation 9

Cases cited (6)

  • Muzamil Ayile v Rose Tarapke (High Court Miscellaneous Application No. 24 of 2013)
  • Daniel v Hadondi Yolam Egondi (Court of Appeal Civil Appeal No. 67 of 1997)
  • Abel Balemesa v Yesero Mugenyi (High Court Miscellaneous Application No. 126 of 2019)
  • Niko Insurance (U) Ltd v Southern Union Insurance Brokers (U) Ltd & 4 Others (High Court Miscellaneous Application No. 817 of 2015)
  • VDB v Kasirye Byaruhanga & Co. Advocates (Supreme Court Civil Appeal No. 35 of 1994)
  • Mbarara Municipal Council v Jetha Brothers Ltd (High Court Miscellaneous Application No. 10 of 2021)

Full judgment

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

Kakura v Okedongo (Civil Miscellaneous Appeal 10 of 2022) [2024] UGHC 867 (19 July 2024)
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.