Wakilii

Management Committee Rubaga II Boys School v Kanyerezi (Civil Appeal No. 9 of 1999)

Court of Appeal · [1999] UGCA 84 · 1999 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion to extend time to serve a Notice of Appeal and to reinstate a struck-out civil appeal
Decision
Application allowed; time to serve the Notice of Appeal extended by seven days

Observed later treatment

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Holding

The Court held that a delay of only four days in serving the Notice of Appeal, caused by a clerk's misunderstanding of the applicable time under Rule 77(1), amounted to sufficient cause under Rule 4 to warrant extension of time. Counsel is responsible for the mistakes of his clerk, but minimum, understandable delays due to human fallibility may be condoned, particularly where counsel exhibited diligence in otherwise progressing the appeal. The Court further held that failure to state the nature of the judgment and reasons for appealing in the supporting affidavit was not fatal and did not fetter the Court's discretion. The application was granted and time extended by seven days.

Outcome

Application allowed; time to serve the Notice of Appeal extended by seven days

Facts

On 23 February 1999 the applicant filed Civil Appeal No. 9 of 1999 in the Court of Appeal. The Notice of Appeal was lodged in court on 20 February 1998 and ought to have been served on the respondent within seven days, that is by 27 February. Service was, however, not effected until 3 March 1998, some four days outside the prescribed time. The respondent applied to strike out the Notice of Appeal on the ground of late service, and on 24 May 1999 the Notice, and consequently Civil Appeal No. 9 of 1999, were struck out. Counsel for the applicant, Mr. Bwengye, had instructed his law clerk, Mr. Kasujja, to lodge and serve the Notice within seven days, but the clerk misconstrued the applicable time and served late. Counsel had otherwise exhibited diligence, fixing the hearing and issuing hearing notices. The applicant then applied under Rules 4 and 42 to extend time for service and to reinstate the appeal.

Issues

  1. Whether sufficient cause was shown under Rule 4 to extend the time for serving the Notice of Appeal, where service was four days out of time.
  2. Whether counsel's failure to include a statement of the nature of the judgment appealed against in his affidavit was fatal to the application.

Orders

  • The time within which to serve the Notice of Appeal on the respondent is extended to seven (7) days from the date of this Ruling.
  • The application is allowed.

Rules and key headnotes

Civil Procedure — Extension of Time — Sufficient Cause under Rule 4
A short and understandable delay caused by human fallibility, such as a clerk's misunderstanding of the time for service, may constitute sufficient cause under Rule 4 to justify the exercise of the court's discretion to extend time.
Civil Procedure — Advocates — Responsibility for Errors of Clerk
Counsel is always responsible for the omissions and mistakes of his clerk, but such a mistake may nonetheless amount to sufficient cause where the delay is minimal and counsel otherwise exhibited due diligence in prosecuting the appeal.
Civil Procedure — Extension of Time — Contents of Supporting Affidavit
Failure to state in the supporting affidavit the nature of the judgment appealed against and the reasons for appealing is not fatal and does not fetter the court's discretion to extend time, since the applicant need not show that the appeal has good prospects of success.
Civil Procedure — Affidavits — Effect of Failure to File Affidavit in Reply
Failure by the opposing party to file an affidavit in reply amounts to acceptance of the applicant's averments, though the applicant must still make out his own case on credible evidence.

Legislation cited (3)

  • Rules of the Court of Appeal Rule 4
  • Rules of the Court of Appeal Rule 42
  • Rules of the Court of Appeal Rule 77(1)

Cases cited (10)

  • Hasid Kibiige (supra)
  • Shah v Jamada & Co. Ltd (1959) EA 839
  • Mugo v Wanjiru [1970] EA 481 at 491
  • Mugo v Wanjiru [1970] EA 299
  • Nabatanzi v Binaisa (Civil Application No. 5 of 1987)
  • Cala v Schoosmith (1939) 3 AER 916
  • Attorney General v Oriental Construction Co Ltd (Civil Application No. 7 of 1990)
  • Hajji Sekajja v Farida Saad (Civil Application No.27 S.C)
  • Bahitarana Transport Co. Ltd v Mbonwa (Civil Application No.7 of ... S.C.)
  • Zam Namansi v Sulaiman Lule (Civil Application No. 2 of 1992)

Full judgment

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Management Committee Rubaga II Boys School v Kanyerezi (Civil Appeal No. 9 of 1999) [1999] UGCA 84 (5 October 1999)
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.