Wakilii

Malinga and 2 Others v Innonget (Civil Miscellaneous Application 19 of 2024)

High Court · [2024] UGHC 595 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to file a memorandum of appeal in cross-appeal out of time, arising from Civil Appeal No. 0035 of 2023, which in turn arose from Civil Suit No. 001 of 2018 of the Chief Magistrate's Court of Kumi at Bukedea
Decision
Application dismissed as unmerited

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application for leave to file a cross-appeal out of time. The applicants failed to prove that their former counsel had instructions to represent them on appeal, and thus could not attribute the delay to counsel's failure to appear. The court found the application was brought as an afterthought with no valid reason and that there was inordinate and unexplained delay.

Outcome

Application dismissed as unmerited

Facts

The applicants were defendants in Civil Suit No. 001 of 2018 at the Chief Magistrate's Court of Kumi at Bukedea and filed a counterclaim. Judgment was delivered on 30 January 2023, with no party fully successful. When the respondent instituted an appeal (Civil Appeal No. 0035 of 2023), the applicants claimed that their trial counsel, Lulecera, would represent them but he never appeared on three scheduled court dates. The applicants subsequently instructed new counsel, M/s Asire and Company Advocates, who filed notice of instructions on 29 January 2024 and advised the applicants to file a cross-appeal regarding their counterclaim. By that time, the statutory period for filing a cross-appeal had expired. The applicants attributed the delay to their former counsel's failure to appear. The respondent contested this, noting that there was no documentary proof that counsel Lulecera had been instructed to represent the applicants on appeal.

Issues

  1. Whether there is a proper case for the applicants to be granted leave to file an appeal against Civil Suit No. 001 of 2018 of the Chief Magistrate's Court of Kumi at Bukedea out of time.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Extension of Time — Proof of Counsel Instructions
An applicant seeking to attribute delay in filing an appeal to counsel's mistake must provide proof that counsel was instructed to represent them in the appellate proceedings; it is insufficient to assume that counsel who represented a party at trial is automatically instructed to continue representation on appeal.
Civil Procedure — Extension of Time — Burden of Proof
The applicant seeking extension of time has the burden of proving to the court's satisfaction that, for sufficient reason, it was not possible to lodge the appeal in the prescribed time; sufficient reason must relate to the inability or failure to take a particular step in the proceedings.
Civil Procedure — Advocate Instructions — Advocates (Professional Conduct) Regulations
No advocate shall act for any person unless he or she has received instructions from that person or his or her duly authorised agent; failure to demonstrate such instructions means counsel is acting on his own and the client cannot rely on that representation.
Civil Procedure — Extension of Time — Factors for Consideration
Factors to be considered in an application for extension of time include the length of delay, the reason for delay, the possibility or chances of success, and the degree of prejudice to the other party; once a delay is not accounted for, it does not matter the length of the delay.

Legislation cited (7)

Cases cited (5)

  • William Odoi Nyandusi v Jackson Oyuku Kasendi (Court of Appeal Civil Appeal No. 0032 of 2018)
  • J Hannington Wasswa v M Onyango Ochola [1992-1993] HCB 103
  • Hodandi Daniel v Yolamu Engondi (Court of Appeal Civil Appeal No. 67 of 2003)
  • Delvi v Diamond Concrete Company [1974] EA 493
  • Gurdial Singh Dhillion v Sham Kaur [1960] EA 795

Full judgment

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

Malinga and 2 Others v Innonget (Civil Miscellaneous Application 19 of 2024) [2024] UGHC 595 (20 June 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.