[2025] UGHCLD 132

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) **MISCELLANEOUS APPLICATION NO.0829 OF 2024** [ARISING FROM CIVIL SUIT NO.565 OF 2017]

KAMYA JOHN::::::::::::::::::::::::::::::::::::

## **VERSUS**

- 1. MANAGEMENT COMMITTEE OF NAMUGONDE PRIMARY SCHOOL - 2. DR. KAGGWA - 3. MR. KADDU - 4. KANOONYA DENIS - 5. BAALE - 6. THE REGISTERED TRUSTEES OF

KAMPALA ARCH DIOCESE:::::::::::::::::::::::::::::::::::

# **RULING.**

# **BEFORE: HON. LADY JUSTICE CHRISTINE KAAHWA**

# **Introduction**

This Application is brought under Section 98 of the Civil Procedure Act and Orders 9 Rule 23 and 52 Rules 1 and 3 of the Civil Procedure Rules seeking for orders that:

- 1. The order dismissing Civil Suit No.565 of 2017 be set aside - 2. Civil suit No. 565 of 2017 be reinstated

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3. Costs of this Application be in the cause.

The grounds of this Application are contained in the Affidavit of the Applicant, Kamya John but briefly are:

That on the 9^th day of May 2023, the main suit was called by this Honourable Court which gave directions for the parties to file a Joint Scheduling Memorandum, Trial bundles and witness statements at least by 15^th of July, 2023 after which the case was fixed for scheduling on 6^th day of November, 2023. His former lawyer's M/S Luzige, Lubega, Kavuma & Co Advocates prepared Joint Scheduling Memorandum and served copies to the Defendant's respective advocates for their input but none of them responded. The hearing date for scheduling was not communicated to him yet he lives in Masaka. On the 6^th of November, 2023, neither himself nor his former Advocates M/S Luzige, Lubega, Kavuma & Co. Advocates attended Court and the suit was dismissed for nonattendance.

In addition, the Applicant stated that the non-attendance was a mistake of his counsel by then who failed to communicate to him the hearing date. He is ready to prosecute his case and his trial bundle and witness statements are already filed in Court record via ECCMIS. The dismissal of his case was a mistake of his former lawyer as he failed to inform him of the fixed date and also failed to appear on his behalf therefore it cannot be vested on him.

He averred that this Application was filed without delay and it is in the interest of justice that this Application be granted.

#### Issue.

Whether there is sufficient cause to warrant setting aside the order dismissing Civil Suit No 565 of 2017?

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### **Representation and hearing.**

The Applicant was represented by M/S Najjuma Nakalule and Co. Advocates. The Respondents did not file Affidavits opposing the instant Application neither did they file written submissions.

# **Analysis and determination.**

This Application was not opposed by any Affidavit in Reply. This Court is alive to the law that where a matter is proceeding by Affidavit evidence and there is no replying Affidavit, the Application remains unchallenged. However, the unchallenged Application must inherently be tenable on its own. (See Makerere University Vs St Mark Education Institute HCCS No.379 of 1993).

This Court will therefore analyze whether the instant Application is tenable on its own. It is the law that this Court has discretion to set aside its Order dismissing a suit and reinstating the same. Such discretion is vested in this Court by virtue of Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act. Additionally, Order 9 Rule 23 of the Civil Procedure Rules empowered this Court to set aside a dismissal where sufficient cause has been shown.

The Court has observed in its earlier decisions that sufficient cause is not prescribed by the rules but rather has been left to the Court to use its discretion to determine whether a particular act constitutes sufficient cause for failure to act or for non-appearance. The Courts hold the discretion to determine whether a particular set of facts amounts to sufficient cause and such discretion must be exercised judiciously.

In the instant case, I note that the Applicant blames his former Counsel, M/S Luzige, Lubega, Kavuma & Co. Advocates for failure to follow up his matter to the logical conclusion. He states that the hearing date for scheduling was not

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communicated to him yet he lives in Masaka, and he does not know why his former Counsel did not inform him of the said date.

In Blanco Arabe Espanol v Bank of Uganda SCCA No .08 of 1998, it was held that a "mistake, negligence, oversight or error on part of counsel should not be visited on the litigant. Such mistake, or as the case maybe constitutes just cause entitling the Trial judge to use his discretion so that the matter is considered on its merits."

However, for mistake of counsel not to be visited on the litigant, the one who seeks refuge in the principle must not be seen to be complacent to the inactions of his counsel and in the alternative, he must demonstrate that he was not complacent to the said inactions.

A litigant who therefore wants to rely on mistake or inadvertence of Counsel should show that Counsel was properly instructed, the necessary fees paid and also that he was not complacent in the inactions of counsel.

In the instant case, the record of Civil Suit No. 565 of 2017 shows that the Applicant's case was dismissed on the 6^th day of November 2024. However, the record also indicates that the Applicant's counsel has always been vigilant in following up the matter.

It is my opinion therefore that whereas Counsel for the Applicant was properly instructed to follow up on the main suit, and did not, the Applicant was diligent enough to track the matter. Otherwise, he would have sat back and devolved himself of active interest in the case, having instructed Counsel.

In addition, the Applicant indeed brought this Application without delay. I observe that on the $28^{th}$ day of March 2024, when this matter came up for hearing of the counterclaimant's case, the Applicant was present in Court which is indicative of interest in the matter.

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It is therefore logical to conclude that the Applicant has demonstrated sufficient cause for failure to prosecute the matter. This Application is therefore allowed. Each party shall bear their own costs.

Dated at Kampala this 9^th day of July 2025.

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**Christine Kaahwa JUDGE**

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