Wakilii

Nyakabwa and Another v Kalimbi and 2 Others (Civil Miscellaneous Application 25 of 2023)

High Court · [2024] UGHC 399 · 2024 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal out of time and validation of notice of appeal, arising from Civil Suit No. 0014 of 2016
Decision
Application for leave to appeal out of time granted; notice of appeal struck out; applicants to file fresh notice of appeal within 14 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted leave to the applicants to appeal out of time the decision in Civil Suit No. 0014 of 2016, finding that inadvertence of counsel constituted sufficient cause where judgment was delivered in the applicants' absence and they acted promptly upon learning of it. The court struck out the notice of appeal filed without prior leave as incompetent and ordered the applicants to file a fresh notice within 14 days.

Outcome

Application for leave to appeal out of time granted; notice of appeal struck out; applicants to file fresh notice of appeal within 14 days

Facts

The applicants, suing as administrators of an estate, sought leave to appeal out of time against the decision in Civil Suit No. 0014 of 2016 which had been delivered on 30 November 2023. Judgment was delivered in their absence. The applicants claimed they were unaware of the judgment date, having followed up with the court clerk who informed them judgment had not been delivered. They only learned of the judgment from the 2nd respondent who claimed to have won the case. Upon learning of the judgment, the applicants instructed their lawyers and filed a notice of appeal on 8 February 2024, followed by this application on 6 March 2024. The respondents opposed, arguing the applicants were aware of the judgment date, that the court lacked jurisdiction to validate the notice, and that no sufficient cause had been shown.

Issues

  1. Whether the applicants have demonstrated sufficient cause to permit grant of leave to appeal against the decision of this court in civil suit no. 14 of 2016 out of time?
  2. What remedies are available in the circumstances?

Orders

  • Leave is granted to the applicant to appeal out of time the decision of this court in Civil Suit No. 0014 of 2016 to the Court of Appeal.
  • The notice of appeal filed on 8th February 2024 is struck out as incompetent for being filed out of time without leave.
  • The appellant shall file and serve a fresh Notice of Appeal within 14 days from the date of delivery of this ruling.
  • The costs of this application shall abide the outcome of the appeal to the Court of Appeal.

Rules and key headnotes

Civil Procedure — Appeals — Extension of Time — Sufficient Cause
What constitutes sufficient cause for extension of time to appeal depends on the unique facts of each case, and must relate to the inability or failure to take the necessary step within the prescribed time, not to taking a wrong decision.
Civil Procedure — Appeals — Extension of Time — Error of Counsel
An error of counsel, particularly failure to attend judgment or notify the client, should not necessarily be visited on the client where the client has acted with diligence upon learning of the judgment.
Civil Procedure — Appeals — Notice of Appeal — Filing Without Leave
A notice of appeal filed out of time without first obtaining leave of court is incompetent and must be struck out; an application to validate such a notice must be preceded by an application for enlargement of time to file it.
Civil Procedure — Appeals — Extension of Time — Factors for Consideration
In considering applications for extension of time to appeal, the court must consider the period of delay, the reason for delay, the arguability of the appeal, the degree of prejudice to the respondent, the importance of compliance with time limits, and the effect on administration of justice or public interest.
Administrative Law — Natural Justice — Right to Appeal
The court must protect the right of an aggrieved party to appeal while guarding against permitting frivolous applications or those presented with inordinate delay from going to the appellate court.

Legislation cited (16)

Cases cited (9)

  • William Odoi Nyandusi v Jackson Oyuko Kasendi (Civil Appeal No. 32 of 2018)
  • Sango Bay Estate and Others v Dresdner Bank and Attorney General [1971] 17
  • Tushabe Cris v Co-operative Bank Limited in Receivership (Civil Appeal No. 8 of 2018)
  • Hadondi Daniel v Yolam Egondi (Court of Appeal Civil Appeal No. 67 of 2003)
  • Kabarole District Local Government v Gun Paper Industries Limited (Miscellaneous Application No. 102 of 2022)
  • Boney M. Katatumba v Waheed Karim (Supreme Court Civil Application No. 27 of 2007)
  • Thuita Mwangi v Kenya Airways Ltd [2003] eKLR
  • Zam Nalumansi v Suleman Lule (Supreme Court Civil Application No. 2 of 1999)
  • Tushabe Cris v Co-operative Bank Ltd (Supreme Court Civil Application No. 8 of 2018)

Full judgment

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

Nyakabwa and Another v Kalimbi and 2 Others (Civil Miscellaneous Application 25 of 2023) [2024] UGHC 399 (31 May 2024)
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.