[2025] UGHC 359

## 5 **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KABALE**

**CIVIL APPEAL NO. 0030 OF 2020 (Arising from Civil Suit No. 0307 of 2012)**

- 10 **1. RUKEIJA SIMON** - **2. BIJEGA POSIANO** - **3. TURYAMUBONA AULIANO**::::::::::::::::::::::::::::::::::::**APPELLANTS**

## **VERSUS**

# **TUMWESIGYE MICHAEL**:::::::::::::::::::::::::::::::::::::::::::::::::**RESPONDENT**

## 15 **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

## **RULING**

The Appellants bring the instant Appeal against the Judgment of the Magistrate Grade one at Kabale Chief Magistrates Court delivered on 21/07/2020.

The Appellants filed their Memorandum of Appeal on the 20/08/2020 and the

20 Registrar of this Court by letter dated 14/10/2020 called for the lower Court record that was received by this Court on the 25/11/2020.

The Respondent's lawyers Messrs Bikangiso & Co. Advocates on the 23/11/2022 filed what I can best refer to as submissions objecting to the competence of the Appeal. Counsel for the Respondent submits that **Order 5 Rule 1 (2)** of the **Civil**

- 25 **Procedure Rules** provides for service of summons within 21 days from the date of issue and that under **Sub Rule (3)** of the said **Order** where there is no application for extension of time or where the application has been dismissed the Suit shall be dismissed without notice. It is the contention of Counsel that a Memorandum of Appeal should be served in the same manner as summons within - 30 21 days and that with the Memorandum of Appeal being filed on the 20/08/2020

5 it is about two years and three months in which the Respondents have remained unserved and that this ground alone makes the appeal incompetent.

Counsel also takes issue with the fact that the Appellants proceeded to file their written submissions in this appeal without a schedule being provided by this Court and without the lower Court record being served upon the Respondent.

10 Counsel also makes the observation that there is no affidavit of service of any of the above documents upon the Respondent on the Court record.

It is therefore the prayer of the Respondent's Counsel that the secret documents placed on the Court record in form of submissions be struck out for being placed on record unlawfully and that the Appeal be dismissed for non-service of the 15 Memorandum of Appeal to the Respondent with costs.

The Appellants on the 23/01/2024 in person filed a reply to the submissions of Counsel in which they contend that they are being blamed for the mistakes of their former lawyer Namara Alice who failed to serve the Memorandum of appeal within 21 days after filing and Court endorsing the same. That they are just 20 learning now that documents should be filed and served within 21 days and that it should have been their lawyers who they had instructed to do so.

The Appellants raise the argument that the mistake, negligence, oversight or error on the part of Counsel should not be visited on the litigant and that such a mistake constitutes just cause entitling the trial Judge to use his discretion so that

25 the matter is considered on its merits and relies on the decision in **Banco Arabe Espanol versus Bank of Uganda SCCA No. 0008** of **1998.**

5 The Appellants therefore pray that the mistakes/negligence of their previous lawyer who has since withdrawn from the conduct of their case should not be visited upon them as lay persons.

They pray that this Court exercises its discretion under **Section 98** of the **Civil Procedure Act** to hear their appeal on merit.

10 **Determination.**

I would entirely agree with the submissions of Counsel for the Respondent that the provisions of **Order 5** of the **Civil Procedure Rules** on service of summons apply to service of Memorandums of Appeal and that the same should be effected within 21 days.

15 In the instant case the Appellants filed their Memorandum of appeal on the 20/08/2020 months before receiving the lower Court record on 25/11/2020 and neither was served upon the Respondent.

The claim of the Appellants that at the time they were represented by a lawyer one Namara Alice is borne out by the record as the Memorandum of Appeal and

20 all other correspondences on record are drawn and filed by Messrs Alice Namara & Co. Advocates.

The record however does not contain any Notice of withdrawal of instructions by the said law firm.

Be that as it may I am inclined to accept the submissions of the Appellants that 25 their lawyers were duty bound to effect service of the Memorandum of Appeal and the lower record upon the Respondent as part of their instructions.

5 It remains unclear why the lawyers were unable to carry out this function since they are not party to these proceedings.

The Courts have generally in the interest of justice and equity been accommodative of lay litigants over matters which fall squarely within the province of professional lawyers who possess the necessary training and 10 experience to handle them.

In **Godfrey Magezi and Another versus Sudir Rupaleria [2004] UGSC 25** while considering the matter of the effect of mistakes of Counsel on appeals of litigants Karokora JSC stated'

"*It is now settled that omission or mistake or inadvertence of Counsel ought not*

15 *to be visited on to the litigant leading to the striking out of his appeal thereby denying him justice…"*

The instant Appellants cannot be accused of sitting back but misguided as they proceeded on their own to file their written submissions on 27/04/2022 without the authorization of this Court.

20 I find this to be a fit and proper case in which the omission or mistake of Counsel should not be visited upon the litigants.

For the above reasons the following Orders are hereby issued;

**a) The Appellants are hereby granted 5 days within which to effect service of the Memorandum of Appeal and the record of the lower** 25 **Court upon the Respondent's Counsel.**

- 5 **b) The written submissions filed by the Appellants on the 27/04/2022 are hereby struck out for being filed without authorization.** - **c) The costs of these Proceedings shall abide the outcome of the Appeal.**

**It is so ordered.**

**Before me,**

…………………………………..

**Samuel Emokor Judge** 15 **10/04/2025.**