Wakilii

Kakuru v Okedongo (Civil Miscellaneous Appeal 10 of 2022)

High Court · [2024] UGHC 886 · 2024 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Assistant Registrar's dismissal of application for enlargement of time to file memorandum of appeal
Decision
Application for enlargement of time allowed under strict conditions; matter may proceed to appeal

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 although the appellant was guilty of dilatory conduct, sufficient cause existed—the appellant's illness—to justify extending time to file a memorandum of appeal. On the issue of whether an advocate from the respondent's firm could swear an affidavit, the court held that an advocate may depose on non-contentious matters well within his knowledge without requiring separate authority, as authority is embedded in the firm's instructions.

Outcome

Application for enlargement of time allowed under strict conditions; matter may proceed to appeal

Facts

The appellant filed Miscellaneous Application No. 058 of 2022 seeking enlargement of time to file a memorandum of appeal arising from Civil Appeal No. 067 of 2015 (which itself arose from Civil Suit No. 014 of 2004). The Assistant Registrar dismissed the application on grounds of insufficient cause and dilatory conduct. The underlying civil suit was instituted in 2004 with judgment entered for the respondent on 30 September 2015. The appellant filed notice of appeal on 21 October 2015. An earlier application for enlargement of time was dismissed on 11 November 2020. The appellant then waited almost two years before filing the impugned application on 4 May 2022. The appellant attributed the delay to illness. The Assistant Registrar found that the matter had been in court for eighteen years and that litigation should come to an end.

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

  • The ruling and orders of the Assistant Registrar in Miscellaneous Application No. 058 of 2022 dismissing the application for enlargement of time are set aside.
  • Time is enlarged for the Applicant/Appellant to file memorandum of appeal on the conditions specified.
  • The Applicant/Appellant to file and serve memorandum of appeal within 14 days from the date of this ruling.
  • The Applicant/Appellant to pay the Respondent taxed costs of this application within 60 days from the date of this ruling.
  • The Applicant/Appellant to file a record of appeal within 60 days from the date of this ruling.
  • In default of the above, the appeal shall accordingly be dismissed.

Rules and key headnotes

Civil Procedure — Enlargement of Time — Sufficient Cause — Exercise of Discretion
Enlargement of time is a discretionary remedy which must be exercised judicially upon proper analysis of the facts and application of the law. The party seeking enlargement must satisfy the court by placing material before it upon which discretion may be exercised. Sufficient cause relates to the inability or failure to take a necessary step within the prescribed time; it does not relate to taking a wrong decision. Where the applicant is guilty of dilatory conduct, time will not be extended unless sufficient cause is shown.
Civil Procedure — Delay — Balancing Interests — Test for Granting Relief
The test when considering delay is whether the delay is prolonged and, if it is, whether justice can be done despite the delay. Both parties to a suit must be considered. Delay per se is not the overwhelming factor when determining whether to terminate a matter for want of prosecution or refuse to reinstate a dismissed case.
Civil Procedure — Evidence — Advocate as Deponent — Professional Conduct Regulations
An advocate may swear an affidavit on matters well within his or her knowledge, especially on formal or non-contentious matters. Regulation 9 of the Advocates (Professional Conduct) Regulations prevents an advocate from acting as counsel and witness in the same case, but does not bar an advocate from giving evidence by affidavit on formal or non-contentious matters in a matter in which he or she acts or appears. Where an advocate from the firm representing a party deposes on matters within his knowledge from the case record, such matters are non-contentious and no separate authority from the client is required—the authority is embedded in the instructions to the firm.

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 Reg.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 1999)
  • 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.

Kakuru v Okedongo (Civil Miscellaneous Appeal 10 of 2022) [2024] UGHC 886 (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.