[2025] UGHC 184

## **THE REPUBLIC OF UGANDA**

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

## **MISC. APPLN. NO. 14 OF 2023**

## **ARISING FROM CIVIL APPEAL NO. 39 OF 2022**

## **1. WEGULO SADALA**

# **2. NABITAKA AISHA ::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS VERSUS**

## **PRIME ANNEX FINANCE LTD ::::::::::::::::::::::::::::::::: RESPONDENTS**

## **RULING**

## **BEFORE: HON DR JUSTICE HENRY I. KAWESA**

- 1. This application was brought under **Order 52 R.1, 2 and 3 of the Civil Procedure Rules SI 71-1.** It seeks orders that: - a. The order of dismissal of Civil Appeal No.39 of 2022; Wegulo Sadala and Anor versus Prime Annex Finance Limited be set aside. - b. Civil Appeal No.39 of 2022 be reinstated and heard and determined on merit. - c. The costs of this application be provided for. - 2. The application is supported by the affidavit of Wegulo Sadala, the 1st applicant deposed on his behalf and on behalf of the 2nd applicant. It is opposed through the affidavit of service deposed to by Ojiambo Balongo Moses on behalf of the respondent. - 3. The applicants represented by M/s Were Associated Advocates; and the respondent is represented by M/s Bwire, Kalinaki and Co. Advocates. Counsel

for the parties filed written submissions, which have been considered in the ruling.

- 4. Counsel for the respondent raised a pertinent issue, which I shall start with, since it touches the competence of the application. The issue is: - a. **Whether court can reinstate an appeal dismissed under Section 17(2) of the Judicature Act Cap.16**? - 5. It is true that Civil Appeal No.39 of 2022 was dismissed under **Section 17(2) of the Judicature Act Cap.16** for non-prosecution. As the respondent's Counsel submitted, a matter dismissed under the provisions of that law cannot be reinstated, but a party has the option, subject to the law of limitation, to file a fresh matter or appeal against the dismissal. Counsel supported his submission with the decision of **Kibugumu Patrick vs. Aisha Mulungi & Anor H. C. M. A No.455 of 2014 and Petronilla Omal Okoth vs. Gabriel Obbo Katandi & Anor HCMA 286 OF 2015.** Others decisions**, say; Richard Lumu Njalebuza vs The society of Catholic Medical Missionaries Ltd Misc. Application No. 1944 of 2018; Kabangizi Enock vs. John Katanisa & Others HCMA No.0163 of 2022,** support the said submission. - 6. Nevertheless, the applicants averred, under paragraphs 4, 5, 6, 7 and 8; that their appeal was presented on the 22nd day of November, 2022 and that they, through their Lawyers, kept on checking at the Registrar to find out if the memorandum of appeal had been endorsed to have it served upon the respondent but were always told that its file was missing. That on 14th of April, 2023, their Counsel sent a clerk to check on the file only to find that the appeal had been dismissed on 30th of March, 2023 for want of prosecution before a calling letter for the lower court file had been issued so as to have the said file before this court to have the appeal fixed. Further, that the dismissal of the appeal on the 30th of March, 2023,

without a lower court record or service of a hearing notice for that date on them was an error which warrants the setting aside of the dismissal.

- 7. This court observes that the appeal was filed on 22nd of November, 2022. It also notes that the memorandum of appeal was endorsed on the 17th of March, 2023 and the appeal dismissed 13 days thereafter, on 30th of March, 2023. As the applicants have averred, a letter calling for the record of the lower court had not been issued then, as the record indicates that it was first issued later, on the 23rd of August, 2023 and the file forwarded on the 12th of October, 2023, according to an acknowledgment on record by one of this court's clerk. - 8. It is, therefore, a fact that the appeal was dismissed 13 days after endorsement of the memorandum of appeal and before presentment of the lower court's record. That, in my view, was an error on the part of court. - 9. In principle, a party should not be condemned for the fault of court (**Kato Hussein & Anor vs. Vijay Amritlal Kotecha High Court Misc. Appln.009 of 2022**, **Nasirubi Harriet vs. Bwire Odubaka HCMA No. CIVIL REVISION HCT-19-CV-CV-0009-2022).** - 10. In this case also, the applicants deserve exception to the strict application of **Section 17(2) of the Judicature Act Cap.16,** as doing otherwise would be condemning the for the court's fault. In view of that, I find that Court can reinstate an appeal dismissed under the said section in the circumstances at hand. Therefore, the issue at hand is found in the affirmative. - 11. The other issue for determination should be: **Whether there is sufficient cause for reinstatement of the dismissed appeal**? - 12. Having already recognised that there was an error on the part of the court in dismissing Civil Appeal No.039 of 2022, I find that there is sufficient cause for its reinstatement. For that cause, I find the issue in the affirmative as well.

13. Consequently, orders a) and b) as stated in the notice of motion are hereby granted. The costs of the application shall abide in the cause.

I so order.

HON. DR. HENRY I KAWESA **JUDGE** 07/02/2025

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