Opio v Lamunu (HCMA 192 of 2021)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The High Court granted the applicant's application for extension of time to file a written statement of defence out of time. The court held that the failure to file a defence was a mistake of former counsel that should not prejudice the applicant. The court further held that a pending appeal arising from an ADR judgment that had been set aside on review did not bar the court from proceeding with the suit, as the review order had rendered the appeal nugatory.
Outcome
Applicant granted leave to file written statement of defence out of time; underlying civil suit to proceed interparty
Facts
The respondent instituted Civil Suit No. 005 of 2012 against Etengu Joham and later amended the plaint to add the applicant as 2nd defendant. The applicant was a minor at the time and a guardian ad litem was appointed. Before pleadings were amended, the trial judge conducted Alternative Dispute Resolution proceedings in the applicant's absence and entered judgment. The applicant successfully applied for review, and the suit was ordered to be heard interparty. Upon instructing new counsel, it was discovered that the former lawyers had not filed a written statement of defence. The applicant then applied for extension of time to file the defence out of time. The respondent opposed the application, arguing that a pending appeal in the Court of Appeal over the same property barred the High Court from proceeding.
Issues
- Whether the applicant should be granted an extension of time within which to file a written statement of defence out of time.
- Whether the existence of a pending appeal in the Court of Appeal bars the High Court from proceeding with the underlying civil suit.
Orders
- Application allowed.
- Costs of the application to be in the cause.
Rules and key headnotes
Legislation cited (3)
Cases cited (1)
- Julius Rwabinumi v Hope Bahimbisomwe (Supreme Court Civil Application No. 14 of 2009)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.