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Mpozayo v Attorney General of the Republic of Rwanda (Application No.6 of 2019; Application No.7 of 2019; Application No.8 of 2019)

East African Court of Justice · [2021] EACJ 38 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated applications arising from a struck-out appeal: applicant seeking extension of time to file appeal out of time; respondent seeking to strike out notice of appeal and extension of time to serve notice of address for service
Decision
Applicant granted extension of time to file appeal; respondent's application to strike out dismissed; matter to proceed to substantive appeal

Observed later treatment

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Holding

The East African Court of Justice Appellate Division held that an applicant who had his appeal struck out for failure to effect proper service established sufficient reason for extension of time to file a fresh appeal, given his incarceration since 2013 and inability to access funds. The Court applied Rule 4 of the EACJ Rules 2013, exercising its discretion broadly and purposively to avoid injustice, and held that a striking out order does not bar an applicant from seeking extension of time where the appeal has not been considered on merit.

Outcome

Applicant granted extension of time to file appeal; respondent's application to strike out dismissed; matter to proceed to substantive appeal

Facts

Dr. Mpozayo Christophe filed Reference No. 10 of 2014 in the First Instance Division of the East African Court of Justice, which was dismissed on 28th September 2018. He filed Appeal No. 4 of 2018, which was struck out on 26th November 2019 for failure to effect proper service within the prescribed time. The applicant's advocate had used courier services rather than personal service. The applicant, incarcerated in Rwanda since 2013, could not access his funds deposited in a bank in Tanzania to facilitate proper service. On 11th December 2019, the applicant filed a fresh notice of appeal and an application for extension of time. The respondent filed applications to strike out the notice of appeal and for extension of time to serve its notice of address for service. The three applications were consolidated.

Issues

  1. Whether the Court has jurisdiction to grant leave to file an appeal out of time pursuant to Rule 82A of the EACJ Practice and Procedure Rules 2013.
  2. Whether the applicant should be granted leave to appeal out of time or the notice of appeal filed on 11th December 2019 should be struck out.
  3. Whether the respondent should be granted leave to file the notice of address for service out of time.

Orders

  • The applicant's application for extension of time to lodge the appeal out of time is granted.
  • The respondent's application for extension of time to serve the applicant with its address for service is granted.
  • The respondent's application to strike out the notice of appeal is dismissed.
  • The applicant shall file the record of appeal together with all necessary documents within forty-five (45) days from the date of delivery of this ruling.
  • Costs to be costs in the cause.

Rules and key headnotes

Extension of Time — Discretion of Court — Sufficient Reason
Under Rule 4 of the East African Court of Justice Rules, the Court has wide discretion to extend time for doing any act authorized or required by the Rules, provided there is sufficient reason, and this discretion must be exercised judiciously taking into account not only the applicant's inability to take procedural steps in time but also any other considerations that might impel a court of justice to excuse a lapse and incline a hearing on merits.
Extension of Time — Factors to Consider — Broad Purposive Approach
In determining whether sufficient reason exists for extension of time, the Court should adopt a broad purposive approach and consider such matters as the promptitude with which the remedial application is brought, whether the jurisdiction of the Court or legality of the decision is in issue, whether there was manifest breach of natural justice, the public importance of the matter, and the prejudice that may be occasioned to either party by the grant or refusal of the application.
Extension of Time — Incarceration and Financial Hardship as Sufficient Reason
An applicant's incarceration and consequent inability to access funds to facilitate proper service of court documents may constitute sufficient reason under Rule 4 for the Court to grant extension of time to file an appeal out of time, particularly where the applicant acted promptly after the striking out of the initial appeal and the respondent would not be prejudiced.
Striking Out — Effect on Right to Appeal — Appeal Not Determined on Merit
An order striking out an appeal for failure to take essential procedural steps does not bar the applicant from seeking extension of time to file a fresh appeal, because the appeal has not been considered on merit.
Extension of Time — Delay — Not Every Delay Disentitles Relief
It is not every delay in taking any appropriate procedural step that would disentitle a party to relief; the delay must be considered broadly and realistically taking all the circumstances of the case into account, and a minute examination of every single act of delay with a strict requirement that every such act be satisfactorily explained would fetter the wide discretion of the Court to extend time.

Cases cited (7)

  • Wasike v Khisa & Another [2004] 1 KLR 197
  • Anyang' Nyong'o v Attorney General of Kenya (Application No. 2 of 2010)
  • The Secretary General of the East African Community v Hon. Sitenda Sebalu
  • Magezi v National Medical Stores (Appeal No. 02 of 2016)
  • Anyang' Nyong'o and 10 Others v Attorney General of Kenya (Applications No.1 and 2 of 2010)
  • Katatumba v Karim (Civil Application No. 27 of 2007)
  • Ngoni Matengo Cooperative Marketing Union v Ali Mohamed Osman (1959) EA 577

Full judgment

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

Mpozayo v Attorney General of the Republic of Rwanda (Application No.6 of 2019; Application No.7 of 2019; Application No.8 of 2019) [2021] EACJ 38 (30 November 2021)
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.