Wakilii

Muluta v Katama [1999] UGSC 25

Supreme Court · 1999 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to a single judge of the Supreme Court for leave to lodge a fresh notice of appeal and to institute an appeal out of time, the original notice of appeal having lapsed.
Decision
Application allowed; applicant permitted to lodge a fresh notice of appeal and institute the appeal out of time within the time limits set, with costs to the respondent.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The applicant's notice of appeal lapsed because his former counsel failed to take the necessary steps in prosecuting the appeal. Applying the principle that the faults of counsel should not be visited on an innocent and vigilant litigant who has not directly or indirectly contributed to the delay, the single judge held that the applicant, who briefed new counsel as soon as he discovered the stalled appeal, had shown sufficient cause under Rule 4. The court rejected the respondent's argument that the applicant must show prospects of success, as that would amount to hearing the appeal itself. The application was granted, but costs were awarded to the respondent because the proceedings were necessitated by the applicant's own default.

Outcome

Application allowed; applicant permitted to lodge a fresh notice of appeal and institute the appeal out of time within the time limits set, with costs to the respondent.

Facts

The applicant successfully sued the respondent in the High Court for general damages for trespass and breach of contract relating to the sale of mailo land. The respondent appealed to the Court of Appeal, which allowed the appeal and set aside the High Court judgment. The applicant instructed counsel to appeal to the Supreme Court, and a notice of appeal was lodged in time and served on the respondent. However, the former counsel did not serve on the respondent the letter applying for the record of proceedings and judgment, and took no further steps. As a result the applicant could not file the appeal within the prescribed sixty days, the notice of appeal lapsed, and the right of appeal expired. On discovering this, the applicant promptly briefed new counsel, who investigated and confirmed that no steps had been taken, and then brought this application for leave to file a fresh notice of appeal and to appeal out of time.

Issues

  1. Whether the applicant had shown sufficient cause to be granted leave to lodge a fresh notice of appeal and to institute his appeal out of time under Rule 4 of the Rules of the Supreme Court.
  2. Whether the negligence or inadvertence of the applicant's former counsel should be visited upon the applicant.
  3. Whether an applicant for extension of time must demonstrate the prospects of success of the intended appeal.

Orders

  • Application for leave to lodge a fresh notice of appeal and to appeal out of time allowed.
  • Applicant to file and serve a notice of appeal within seven (7) days from the date of the ruling.
  • Applicant to file and serve the appeal within twenty-one (21) days after filing and service of the notice of appeal.
  • Costs of the application awarded to the respondent.

Rules and key headnotes

Civil Procedure — Extension of Time to Appeal — Default of Counsel — Sins of Counsel Not Visited on Client
A vigilant litigant who has not directly or indirectly contributed to the delay should not be penalised for the dilatory conduct, negligence or inadvertence of his advocate, and such default of counsel may constitute sufficient cause for granting leave to appeal out of time.
Civil Procedure — Extension of Time to Appeal — Discretion under Rule 4 — Sufficient Cause
Under Rule 4 of the Rules of the Supreme Court the court has wide discretion to extend the time within which to lodge an appeal where the applicant shows sufficient cause for the failure to take a particular step within the prescribed time.
Civil Procedure — Extension of Time to Appeal — Prospects of Success Not a Requirement
An applicant seeking extension of time to appeal need not demonstrate the grounds or prospects of success of the intended appeal, since requiring this would be tantamount to hearing the appeal itself; the applicant need only show why the necessary step was not taken.
Civil Procedure — Extension of Time to Appeal — Balancing Interests of the Parties
In exercising its discretion to extend time, the court must strike a balance between the interests of the applicant wronged by his counsel's default and the prejudice to the innocent successful respondent who is entitled to enjoy the fruits of the judgment in his favour.

Legislation cited (3)

  • Rules of the Supreme Court r.4
  • Rules of the Supreme Court r.43(3)
  • Rules of the Supreme Court r.78

Cases cited (11)

  • Isaac Bushari v VitaFoam (Miscellaneous Application No. 2 of 1994)
  • Mugo and Others v Wanjiru & Another (1970) E.A. 481
  • Shanti v Hindocha & Others (1973) E.A. 120
  • The Executrix of the Estate of Christine N. Tibaijukira v Deborah Namukasa (Civil Application No. 8 of 1988)
  • Bakitara Transport Bus Co. Ltd v Emmanuel Biribonwa (Civil Appeal No. 7 of 1978)
  • Balwantrai D. Bhatt v Tejwant Singh and Another (1962) E.A. 497
  • Joy Tumushabe v Anglo-African Limited and Another (Civil Application No. 14 of 1998)
  • Pollack House Ltd v Nairobi Wholesalers Ltd (No. 2) (1972) E.A. 172
  • Motor Mart (U) Ltd v Yona Kanyomozi (Civil Application No. 6 of 1999)
  • Shiv Construction v Endesha Enterprises Ltd (Civil Appeal No. 15 of 1992)
  • Haji Nurdin Matovu v Ben Kiwanuka (Civil Appeal No. 12 of 1992)

Full judgment

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

Muluta v Katama [1999] UGSC 25 (17 November 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.