[2015] UGCA 33

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **AT KAMPALA**

## **CIVIL APPLICATION NO. 256 OF 2013** (ARISING FROM CIVIL APPEAL NO. 111 OF 2013).

JETHA BROTHERS LTD ::::::::::::::::::: **APPLICANT**

## **VS**

**MBARARA MUNICIPAL COUNCIL & 4 OTHERS. :::::::RESPONDENTS** 15

## **RULING.**

The applicant brought this application seeking Orders that leave $\overline{20}$ be granted to serve the Memorandum and Record of Appeal out of time and that costs be provided for.

The main grounds of the application are that;

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$\mathbf{1}$

- $(1)$ The applicant being dissatisfied with the decision the High Court at Mbarara instructed their $\boldsymbol{\mathit{Of}}$ Advocates to appeal against the decision. - The advocates dully filed the Memorandum and $(2)$ 30 Record of Appeal within the prescribed time but did not serve the opposite party. - The applicant engaged another firm of Lawyers $(3)$ who upon perusal of the record found that the copies of the Memorandum and Record of Appeal had not

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been served and that the statutory period had expired on $8^th$ July 2013. On 30/7/2013 they filed this application.

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The application is supported by an affidavit of Mathew Othieno, a process serve with Ms Akampumuza & Co. Advocates which details the circumstances that led to the present application.

The $3^{\ensuremath{\text{rd}}}$ and $4^{\ensuremath{\text{th}}}$ respondents filed an affidavit in reply. The 45 respondents contend that contrary to what the applicant states in the affidavit in support, the applicant's counsel received the record of proceedings on $26^{\mbox{\tiny th}}$ April 2013 and filed an appeal on $1^{\rm st}$ July 2013 well out of time prescribed by the law and as such the application should be dismissed. 50

The fifth respondent also filed an affidavit in reply. He contended that as from 2013, the applicant had full knowledge that his counsel Mr. Kenneth Kakuru ceased being an advocate 55 of the High Court of Uganda as he had been appointed a Justice of the Court of Appeal of Uganda and that his counsel was never served with any documents regarding the appeal in question. He contended that he will suffer injustice and be personally prejudiced if court extends the time within which to 60 serve the memorandum of appeal.

The Applicant filed an affidavit in rejoinder. At the hearing, Dr. Akamupumuza appeared for the applicant while Mr. Ronal Oinee represented the 3^rd and 4^th respondent.

Mr. Tony Arinaitwe represented the 5^th respondent. The 2^nd respondent was in Court but did not file any affidavit in reply. The 1^st respondent was not represented.

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Counsel $\overline{on}$ both sides made forceful submissions. $Mr$ Akampumuza applied for an adjournment to make a rejoinder. When the matter appeared for hearing on 16^th July, 2014 Mr. Akampumuza sought for leave to file written submissions to save court's time. Mr Oine vehemently objected to the admission of the submissions. I reserved my ruling and stated that it would be incorporated in the main ruling.

Much as it was not good practice for counsel Akampumuza to file written submissions in answer to oral submissions, I have 80 perused through the written submissions and I found nothing new. All counsel did was to reply to the points raised by the respondents in their submissions. No new matters were raised. The admission of the written submissions would therefore not prejudice the respondents in any way. 85

I now come to the main application. There is no dispute that the applicant filed a Memorandum and Record of Appeal in $\overline{3}$

Court on 1^st July, 2013 as per the affidavit of Owino Mathew. It is also not in dispute that both documents were not served on 90 the respondents on time.

When the respondents found out the problem, he instructed another firm of lawyers which filed this application on $30^{\mbox{\tiny th}}$ July $2013.$

The applicant contends that the statutory period within which to serve the documents expired on $8^{\mbox{\tiny th}}$ July 2013 and he filed this application on $30^{\mbox{\scriptsize th}}$ July 2013 and as such there was no inordinate delay. 100

On their part, the $3^{\mbox{\tiny rd}}$ $4^{\mbox{\tiny th}}$ and $5^{\mbox{\tiny th}}$ respondents contend that the Record of Proceedings of the High Court was served on counsel for the applicant on $26^{\mbox{\scriptsize th}}$ April 2013 and the applicant filed the Memorandum and Record of Appeal on 1^st July 2013 well out of 105 the time prescribed by Rule 83(1)(2) of the Rules of this

There are two conflicting versions as to when the applicant received the Record of proceedings. 110

The respondents contend that the applicant's counsel was served with the same on $26^{\mbox{\scriptsize th}}$ April, 2013 and 60days within which to lodge the Memorandum and Record of Appeal expired $\overline{4}$

on 26 June, 2013 so the documents were filed out of time and 115 as such the application cannot stand.

The respondents rely on the Affidavit of Kiconco Elivaida a process server of the High Court at Mabrara. The applicant on his part contends that the certified copy of proceedings was reserved on 14/6/2013 as per the Registrar's Certificate (See Annexure A to the affidavit in rejoinder sworn by Sarah Naigaga.

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I have looked at the Affidavit of Kiconco Elivaida that is annexed to Mary Mugenyi's affidavit in reply. 125 It only has a letter informing M/s. Kakuru & CO. Advocates that the proceedings were ready for collection. There is nothing to show that the proceedings were served on counsel Kakuru.

Contrary to that, the Affidavit in Rejoinder shows that the 130 Registrar's certificate was signed on the 14^th day of June, 2013 and that is the date when the proceedings were collected.

This fact is not contradicted. I am convinced that the proceedings were collected on 14^th June, 2013 as per the 135 Registrar's certificate and the appeal was lodged on 1^st July, 2013. The appeal was therefore lodged within the prescribed time.

memorandum of appeal was filed on 1^st July 2013. This application was filed on 30^th July, 2013. There was inordinate delay on the part of the applicant after he discovered that his former counsel had not served the documents on the respondents.

It is trite law that a mistake by counsel should not be visited on an innocent litigant. The applicant was vigilant in pursuing his rights. He should not therefore be burred from pursuing his rights.

Accordingly, I allow the application for extension of time within which to serve the Memorandum and Record of Appeal on the respondents.

The documents should be served within 7 (seven) days from the date of this ruling.

On the issue of costs, I order that they abide the outcome of the appeal. 185

| | <b>DEO NIZEIMANA</b> | | |-----------|----------------------|--| | 10/3/2015 | DEPUTY REGISTRAR. | |

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