Wakilii

Mzee Festo Jumbe v Hokofam Ltd (Miscellaneous Application 37 of 2024)

High Court · [2025] UGHC 405 · 2025 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate civil suit
Decision
Suit reinstated; matter to be allocated fresh suit number and proceed on merit

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Holding

The Court held that while the Applicant's hospitalization constituted sufficient cause for non-appearance, his Counsel's failure to appear was negligent, as Counsel was present on the court premises handling other matters. However, in the interests of substantive justice under Article 126(2)(e) of the Constitution and Section 98 of the Civil Procedure Act, the dismissal order was set aside and the suit reinstated. The Court ordered Counsel Wahinda Enock to personally meet the Respondent's costs due to his negligence in failing to arrange for another advocate to hold brief.

Outcome

Suit reinstated; matter to be allocated fresh suit number and proceed on merit

Facts

The Applicant filed Civil Suit No. HCT-01-CV-CS-0038-2020 which was dismissed on 22nd March 2024 under Order 9 Rule 22 for non-appearance. The Applicant was hospitalized at Kasese Municipal Health Centre III from 20th to 25th March 2024. His Counsel, Wahinda Enock, was appearing before another High Court judge on other pre-fixed matters on the same day and failed to attend the Applicant's suit or arrange for another advocate to hold brief. The Applicant brought this application under Article 28 of the Constitution, Section 98 of the Civil Procedure Act, and Order 9 of the Civil Procedure Rules seeking to set aside the dismissal and reinstate the suit. The Respondent opposed, arguing the application was frivolous and that the Applicant had been granted several opportunities over four years to prosecute the case but failed to do so.

Issues

  1. Whether there was sufficient cause for the Applicant's non-appearance when the suit was called for hearing on 22nd March 2024.
  2. Whether the dismissal order under Order 9 Rule 22 should be set aside and the suit reinstated.

Orders

  • The Application is allowed.
  • Civil Suit No. HCT-01-CV-CS-0038-2020 is reinstated and is to be allocated a fresh suit number under the High Court Circuit of Kasese.
  • Counsel Wahinda Enock for the Applicant shall meet the costs of the Respondent personally.

Rules and key headnotes

Civil Procedure — Reinstatement of Dismissed Suits — Sufficient Cause — Order 9 Rule 23(1)
For a suit dismissed under Order 9 Rule 22 of the Civil Procedure Rules to be reinstated under Rule 23(1), the plaintiff must satisfy the court that there was sufficient cause for non-appearance when the suit was called for hearing. Sufficient cause must be assessed based on the facts of each case and may include hospitalization of the party.
Civil Procedure — Counsel Negligence — Duty to Arrange for Holding Brief
Where counsel is aware that a matter has been cause-listed alongside other matters before the same court but before different judges, it is not open to counsel to simply neglect the conflicting matter in preference for others. Counsel must arrange for another advocate to hold brief to avoid jeopardizing their client's case. Failure to do so constitutes negligent conduct.
Civil Procedure — Costs — Personal Costs Order Against Counsel
Where counsel's negligence causes an application to arise that would not otherwise have been necessary, the court may order counsel to personally meet the costs of the opposing party. This is justified where the negligence has caused unnecessary expense to both the client and the opposing party.
Civil Procedure — Substantive Justice — Article 126(2)(e) of the Constitution
In the interests of substantive justice as established under Article 126(2)(e) of the Constitution and pursuant to Section 98 of the Civil Procedure Act, negligence of counsel to the detriment of a client may constitute sufficient cause for reinstatement of a dismissed suit under Order 9 Rule 23(1), especially where the litigant is precluded from bringing a fresh suit on the same cause of action.

Legislation cited (5)

Cases cited (2)

  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Gideon Mosa Onchwati v Kenya Oil Co. Ltd & Another (2017) eKLR

Full judgment

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

Mzee Festo Jumbe v Hokofam Ltd (Miscellaneous Application 37 of 2024) [2025] UGHC 405 (10 March 2025)
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.