Stephen Ndugu v Grace Wasagali (Civil Application No. 777 of 2022)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal dismissed the application to reinstate Civil Appeal No. 264 of 2016, which had been dismissed for non-appearance. Service of the hearing notice on the applicant's advocates on record was effective under O.3 r.4 CPR and the Court of Appeal Rules, and the receptionist's rejection of service did not absolve the firm. The applicant's own failure to follow up his appeal for months was dilatory conduct, and the mistake-of-counsel principle was subject to that exception. The alleged conflict of interest in the Registrar commissioning the affidavit of service and endorsing the decree was rejected, as the Advocates (Professional Conduct) Regulations do not apply to judicial officers. No sufficient cause was shown.

Outcome

Application for reinstatement dismissed; Civil Appeal No. 264 of 2016 not restored.

Facts

The applicant sued the respondent for false imprisonment in the Chief Magistrate's Court at Mbale (Civil Suit No. 31 of 2011); the suit was dismissed with costs. His appeal to the High Court at Mbale (Civil Appeal No. 083 of 2013) was dismissed, and he then lodged Civil Appeal No. 264 of 2016 in the Court of Appeal. After conferencing concluded on 10 May 2017, the applicant took no steps to follow up the appeal until it was called for hearing on 23 June 2022 and dismissed for non-appearance. The applicant said he learned of the dismissal only on 21 October 2022. He claimed the court process server served his former advocates, M/s Jingo Ssempijja & Co Advocates, whose receptionist rejected service without ascertaining who handled the matter, so he never learned of the hearing date. He further alleged the affidavit of service was defective and that a conflict of interest arose because the Registrar both commissioned the affidavit of service and endorsed the decree. The respondent contended that service on the law firm on the record was effective and that the applicant had not been vigilant. The applicant had followed up his appeal only in January 2022 and October 2022.

Issues

1. Whether the applicant was prevented by sufficient cause from appearing when Civil Appeal No. 264 of 2016 was called for hearing, such that the appeal should be reinstated.
2. Whether there was effective service of the hearing notice on the applicant through his advocates on the record.
3. Whether the alleged indolence or mistake of the applicant's former counsel constituted sufficient cause excusing his non-appearance.
4. Whether there was a conflict of interest in the Registrar both endorsing the decree and commissioning the affidavit of service.

Orders

• Application dismissed with costs.

Rules and key headnotes

Legislation cited (13)

• Civil Procedure Act Cap 71 s.98
• Judicature Act Cap 13 s.10
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.100(2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.18(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.19
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.23(1)
• Civil Procedure Rules SI 71-1 O.52 r.1
• Civil Procedure Rules SI 71-1 O.3 r.2
• Civil Procedure Rules SI 71-1 O.3 r.4
• Civil Procedure Rules SI 71-1 O.5
• Civil Procedure Rules SI 71-1 O.50 r.1
• Commissioners for Oaths (Advocates) Act Cap 6 s.4
• Advocates (Professional Conduct) Regulations SI 267-2 reg.9

Cases cited (14)

• Njagi v Munyiri [1975] EA 197
• Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
• Erukana Omuchilo v Ayub Mudiiwa [1966] EA 229
• Dr. B.B Byarugaba v Nelson Kantarama (Miscellaneous Application No. 229 of 2019)
• Bishop Jacinto Kibuuka v The Uganda Catholics Lawyers Society & Ors (High Court Miscellaneous Application No. 696 of 2018)
• Nakiridde v Hotel International Limited [1987] HCB 85
• National Insurance Corporation v Mugenyi & Co. Advocates [1987] HCB 28
• Hikima Kyamanywa v Sajjabi Chris (Court of Appeal Civil Appeal No. 1 of 2006)
• Florence Nabatanzi v Naome Binsobedde (Supreme Court Civil Application No. 6 of 1987)
• Andrew Bamanya v Shamsherali Zaver (Court of Appeal Civil Appeal No. 70 of 2001)
• Nicholas Roussos v Gulam Hussein Habib Virani & Anor (Supreme Court Civil Appeal No. 9 of 1993)
• Kananura Andrew Kansiime v Richard Henry Kaijuka (Supreme Court Civil Reference No. 15 of 2016)
• F.L Kaderbhai & Anor v Shamsherali Zaver Virji & 2 Others (Supreme Court Civil Application No. 20 of 2008)
• Boney M. Katatumba v Waheed Karim (Supreme Court Civil Application No. 27 of 2007)

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