Tumuramye v Tushemereirwe (Civil Application No. 96 of 2016)

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 considered an application under Rule 100(2) of the Court of Appeal Rules to restore a civil appeal dismissed for non-appearance. The applicant showed that the hearing notice had been served on Kwesiga-Bateyo & Co. Advocates, who no longer represented him, despite a notice of change of advocates being on the court record. The Court held that neither the applicant nor his current counsel were served, which constituted sufficient cause for non-appearance. A vigilant litigant should not be penalised for errors of the court or others not attributable to him. The application was allowed and the appeal reinstated, with costs to abide the outcome of the appeal.

Outcome

Application granted; dismissed appeal reinstated for hearing

Facts

The applicant had lodged Civil Appeal No. 16 of 2008, which was dismissed for non-appearance with costs to the respondent under Rule 100(1) of the Court of Appeal Rules. The applicant was represented by M/s KGN Advocates, who had filed the notice of appeal and conferencing notices, and a notice of change of advocates had been filed in court on 5 December 2015. However, the hearing notice was served on M/s Kwesiga-Bateyo & Co. Advocates, who no longer had instructions from the applicant. Neither the applicant nor his current counsel received the hearing notice for the day of hearing. The applicant brought this application to set aside the dismissal and restore the appeal, contending that the failure to serve was the basis for his non-appearance. The respondent argued the applicant was lax in following up the appeal.

Issues

1. Whether the applicant was prevented by sufficient cause from appearing when the appeal was called for hearing, so as to justify restoration of the dismissed appeal under Rule 100(2).

Orders

• Application allowed.
• Civil Appeal No. 16 of 2008 reinstated.
• Costs of this application shall abide the outcome of the appeal.

Rules and key headnotes

Legislation cited (4)

• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.43(1)
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.100(1)
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.100(2)
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.99(1)

Cases cited (2)

• Rosette Kizito v Administrator General and Others (Supreme Court Civil Application No. 9 of 1986)
• Joseph Muluta v Sylvano Katama (Supreme Court Civil Appeal No. 2 of 1999)

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