Wakilii

M s Kiboko Enterprises Ltd v DD Best Investments Ltd (Miscellaneous Application 1757 of 2022)

High Court · [2023] UGCOMMC 301 · 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 suit dismissed for non-appearance under Order 9 Rule 17 of the Civil Procedure Rules
Decision
Civil Suit No. 671 of 2015 reinstated with directions for filing and scheduling

Observed later treatment

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Holding

Held that the applicant satisfied the requirements for reinstatement under Order 9 Rule 18 of the Civil Procedure Rules. The applicant's withdrawal of an earlier incompetent application and filing of a proper application was not an abuse of process. Counsel's non-appearance due to alleged Court of Appeal engagement constituted sufficient cause. The applicant had diligently prosecuted the suit prior to dismissal, filed necessary documents, and no prejudice would be occasioned to the respondent by reinstatement.

Outcome

Civil Suit No. 671 of 2015 reinstated with directions for filing and scheduling

Facts

The applicant instituted HCCS No. 671 of 2015 against the respondent. On 7 December 2021, the matter came before court with only the respondent's counsel present. The court directed the respondent to file witness statements and trial bundles by 17 December 2021, adjourning to 14 March 2022 for scheduling. The respondent did not comply with this directive. On 14 March 2022, neither party nor their counsel appeared in court, and the suit was dismissed for non-appearance under Order 9 Rule 17. The applicant's legal manager stated that on the morning of the hearing, counsel notified her at 9:20am that he had been served with a Court of Appeal hearing notice. She rushed to court but arrived at 9:50am to find the suit already dismissed. The applicant had filed an earlier reinstatement application (Misc. App. No. 558 of 2022) which was withdrawn after the respondent raised a preliminary objection regarding service, and the applicant then filed the present application.

Issues

  1. Whether the dismissal order of HCCS No. 671 of 2015 should be set aside and the suit reinstated.

Orders

  • Application allowed.
  • Civil Suit No. 671 of 2015 is reinstated.
  • Costs shall abide the outcome of the main suit.
  • Respondent to file its witness statement and trial bundle by 13th December 2023.
  • Suit to proceed on 4th March 2024 at 10:00am for scheduling.

Rules and key headnotes

Civil Procedure — Reinstatement of Dismissed Suit — Order 9 Rule 18 Requirements
Where a suit is dismissed under Order 9 Rule 17 for non-appearance, the plaintiff may apply for an order to set aside the dismissal and the court shall grant the application if the plaintiff satisfies the court that there was sufficient cause for non-appearance.
Civil Procedure — Sufficient Cause — Negligence of Counsel
Sufficient cause for non-appearance is demonstrated by showing that the applicant had an honest intention of attending court and was diligent in applying for reinstatement. The negligence or mistake of counsel in failing to appear for hearing should not be visited upon the litigant where the litigant had diligently prosecuted the suit prior to dismissal.
Civil Procedure — Withdrawal and Refiling of Application — Abuse of Process
The withdrawal of an incompetent application after a preliminary objection is raised, followed by the filing of a proper application that complies with procedural requirements, does not constitute an abuse of the court process. No law forbids a party from withdrawing a suit and filing a fresh suit, subject only to the law of limitation.

Legislation cited (3)

Cases cited (1)

  • Crown Beverages Ltd v Stanbic Bank of Uganda Ltd (HCMA No. 0181 of 2005)

Full judgment

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

M s Kiboko Enterprises Ltd v DD Best Investments Ltd (Miscellaneous Application 1757 of 2022) [2023] UGCommC 301 (22 November 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.