Wakilii

Mpirirwe v Kamarayo and Others (Civil Miscellaneous Application 63 of 2023)

High Court · [2023] UGHC 117 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal of civil appeal
Decision
Application dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an affidavit in reply to a notice of motion must be filed within fifteen days after service under Order 8 Rule 2 and Order 49 Rule 2 of the Civil Procedure Rules. An applicant seeking readmission of a dismissed appeal under Order 43 Rule 16 must prove sufficient cause for non-appearance. Where an applicant's sworn averments contradict court record and the applicant failed to comply with court orders to file submissions, sufficient cause is not established. The application to set aside the dismissal order was dismissed.

Outcome

Application dismissed

Facts

The applicant filed an application on 23 February 2023 to set aside the dismissal of Civil Appeal No. 39 of 2021. The appeal had been dismissed on 8 February 2023 under Order 43 Rule 14(1) of the Civil Procedure Rules for the applicant's non-appearance. The applicant claimed she thought the hearing date was 28 February 2023, not 8 February 2023, and that she was not served with a hearing notice for 8 February 2023. Court record showed that on 17 October 2022, both parties were present when the court ordered submissions to be filed by specified dates and fixed the matter for 8 February 2023. The applicant failed to file submissions by the ordered deadline of 17 November 2022 and did not appear on 8 February 2023. The respondent filed an affidavit in reply on 27 March 2023, more than fifteen days after being served with the notice of motion on 9 March 2023.

Issues

  1. Whether the respondent's affidavit in reply was filed out of time and should be struck out.
  2. Whether there is sufficient cause for setting aside the dismissal order of Civil Appeal No. 39 of 2021.
  3. What remedies are available to the applicant.

Orders

  • The respondent's affidavit in reply is struck off the record for being filed out of time.
  • The application is dismissed.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Affidavits in Reply — Time Limits — Order 8 Rule 2 and Order 49 Rule 2
An affidavit in reply to a notice of motion constitutes a defence to the application and must be filed within fifteen days after service of the notice of motion, as required by Order 8 Rule 2 read with Order 49 Rule 2 of the Civil Procedure Rules.
Civil Procedure — Readmission of Appeals — Sufficient Cause — Order 43 Rule 16
Where an appeal is dismissed under Order 43 Rule 14 of the Civil Procedure Rules for non-appearance, the appellant must prove they were prevented by sufficient cause from appearing when the appeal was called for hearing in order to obtain readmission under Order 43 Rule 16.
Civil Procedure — Readmission of Appeals — Sufficient Cause — False Averments
Where an applicant's sworn averments as to the hearing date directly contradict the court record and the applicant failed to attach the dismissal order or record of proceedings to support their case, the applicant has not established sufficient cause for non-appearance.
Civil Procedure — Compliance with Court Orders — Failure to File Submissions
Failure to comply with court orders to file submissions by specified deadlines portrays a party as not genuinely interested in pursuing their appeal and does not constitute sufficient cause for readmission of a dismissed appeal.

Legislation cited (10)

Full judgment

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Mpirirwe v Kamarayo and Others (Civil Miscellaneous Application 63 of 2023) [2023] UGHC 117 (1 December 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.