Wakilii

Serugunda v Serwanika (Miscellaneous Application 594 of 2023)

High Court · [2023] UGHCLD 365 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to reinstate Civil Appeal No. 60 of 2018 dismissed for want of prosecution
Decision
Application to reinstate appeal dismissed; appeal remains dismissed for want of prosecution

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application to reinstate a dismissed appeal refused. An appellant seeking reinstatement under section 98 of the Civil Procedure Act must show sufficient cause for the failure to prosecute. Where an appellant fails to prosecute an appeal for nearly five years, does not effectively instruct counsel, is personally served with hearing notices but refuses to acknowledge service, and fails to prove alleged sickness with medical evidence, no sufficient cause is established. Negligence of counsel cannot be pleaded where counsel withdrew instructions months before the dismissal. Dismissal for want of prosecution upheld.

Outcome

Application to reinstate appeal dismissed; appeal remains dismissed for want of prosecution

Facts

The applicant filed Civil Appeal No. 60 of 2018 on 12 June 2018 arising from Civil Suit No. 212 of 2012. The appeal remained unprosecuted for nearly five years. The applicant's former lawyers, M/s Lubega-Matovu & Co. Advocates, filed a notice of withdrawal of instructions on 26 October 2022. When the appeal was listed for hearing on 14 February 2023, service of hearing notice was effected on the former counsel, who declined service stating he no longer had instructions. The applicant was then personally served at Makindye but refused to acknowledge receipt. On the hearing date, only the respondent appeared and the court dismissed the appeal for want of prosecution. The applicant then brought this application claiming he was sick and upcountry, and that his lawyers had failed to inform him of the hearing date.

Issues

  1. Whether Civil Appeal No. 60 of 2018 should be reinstated.
  2. What remedies are available to the parties?

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Reinstatement of Appeals — Dismissal for Want of Prosecution — Sufficient Cause
An application to reinstate an appeal dismissed for want of prosecution must demonstrate sufficient cause under section 98 of the Civil Procedure Act. Sufficient cause must relate to the inability or failure of the applicant to take a particular step in time.
Civil Procedure — Reinstatement of Appeals — Negligence of Counsel — Withdrawal of Instructions
Where counsel has formally withdrawn instructions several months before an appeal is dismissed, an appellant cannot plead negligence of counsel as sufficient cause for reinstatement. The appellant must show that counsel was still instructed at the material time.
Civil Procedure — Evidence — Proof of Sickness — Medical Reports
An applicant who relies on sickness as a ground for failing to attend court must prove the alleged sickness in accordance with section 101 of the Evidence Act. A bare assertion of illness without supporting medical evidence is insufficient.
Civil Procedure — Service of Process — Personal Service — Refusal to Acknowledge
Where an applicant is personally served with court process but refuses to acknowledge receipt, and this fact is sworn to in an affidavit and not rebutted, the court will presume that effective service was made.
Civil Procedure — Dismissal for Want of Prosecution — Dilatory Conduct — Five-Year Delay
Failure to prosecute an appeal for a period of nearly five years without reasonable explanation constitutes dilatory conduct justifying dismissal for want of prosecution. An applicant guilty of such conduct cannot successfully invoke the court's inherent powers under section 98 to reinstate the appeal.

Legislation cited (5)

Cases cited (5)

  • Kibuuka v Uganda Catholic Lawyers Society and 2 Others (Miscellaneous Application No. 696 of 2018)
  • Florence Nabatanzi v. Naome Binsobedde
  • Wakabala & Co Advocates v Banyenzaki Christopher (Miscellaneous Application No. 802 of 2019)
  • Rosette Kizito v Administrator General and Others (Supreme Court Civil Application No. 9 of 1986)
  • Samwiri Musa vs. Rose Achen 1978 HCB 297

Full judgment

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

Serugunda_v_Serwanika_(Miscellaneous_Application_594_of_2023)_[2023]_UGHCLD_365_(25_October_2023)
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.