THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
HOLDEN AT MBALE
HCT-04-CV-MA -0213 OF 2015
(ARISING FROM MISC. APPLICATION NO. 140/2009)
(ARISING FROM CIVIL SUIT NO. 51 OF 2009)
- CHERUKUT MARTIN
- ABDU CHELANGAT :::::::::::::::::::: APPLICANTS
ROTICH BOSCO ::::::::::::::::::::: RESPONDENT
BEFORE: HON. MR. JUSTICE HENRY. I. KAWESA
Applicant applied for extension of time within which to file memorandum of appeal.
I have internalized the application and submission by both counsel.
I resolve the application as follows:
- Merit of the application
The application is brought under a wrong provision as rightly pointed out by counsel for applicants. It ought to have been filed under O.51 R 6 of the Civil Procedure Rules Not O. 51 R 1 of the Civil Procedure Rules. This however is not fatal, given the discretion given this court under section 98 of the Civil Procedure Act, to take steps to ensure that ends of justice are met.
The respondent’s counsel also objected to the fact that applicant Cherukut did not swear a supporting affidavit.
This is a grave omission, however there is the affidavit in support which brings out the grounds upon which the applicant bases the claim raised. This court being a court of justice will therefore base on the available affidavit and determine the application on merit. The omission is accordingly in the circumstances of the matters alluded to found compently before court.
- Sufficiency of Application
In an application for extension of time applicant must show sufficient cause. Per the executrix of the Estate of the Late Christine Namatovu V. Mary Namatovu (1992-93) HCB 85.
The courts have held that mistake of counsel should not visited on the litigant. It is good and sufficient cause once a litigant shows that she / he did not sunction such behavior .
In Mary Kyomulabi V. Ahamed Zirondemu 1999-93HCB 103, it was held that;
“the proposition that a mistake by counsel might not necessarily be a bar to his obtaining extension of time and that the administration of justice normally required that the substance of all disputes should be investigated and decided on merits and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights. Further it would be deplorable for a vigilant litigant to be penalized by refusing him to appeal because of the negligence of his counsel over whose actions he /she has no control.”
The facts before me show that applicant instructed counsel who did not act for her professionally and failed to file the memorandum on time. He also failed to exercise the option to withdraw the intended appeal, and avoid the dismissal.
I hold that this behavior was not suctioned by the litigant who is in court seeking for justice.
This behavior though grossly unprofessional cannot be visited on the litigant who has vigorously come to court and defended her interest and right to appeal. I therefore hold that sufficient cause has been shown.
I therefore find merit in the application, however I will grant it on condition that applicant will pay taxed costs of this application to Respondent at end of the trial regardless of the outcome of the appeal.
The appeal be filed strictly on time frames as allowed in the law. Failure will mean that appeal is abandoned.
The application is granted with costs to respondent in terms as above. I so order.
Henry I. Kawesa