[2025] UGHC 569

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MPIGI

## **MISCELLANEOUS APPLICATION NO. 66 OF 2023**

# (Arising from Civil Appeal No. 33 of 2018)

(Arising from Civil Suit No. 69 of 2010)

SEMITALA CHARLES....................................

## **VERSUS**

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KAGUGUBE JOHN....................................

#### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK 10

#### Ruling

The applicant brought this application by Notice of Motion under Section 33 of the Judicature Act, Order 52 Rules 1 and 3 of the Civil Procedure Rules and Section 64 and 98 of the Civil Procedure Act against the respondent seeking orders that:

- 1. The order dismissing Civil Appeal No. 33 of 2018 and Miscellaneous Applications No.s 57 and 58 of 2021 be set aside. - 2. Civil Appeal No. 33 of 2018 and Miscellaneous Application No. 57 and 58 of 2021 be reinstated and heard on its merits. - 3. Costs of the application be provided for. - The application is supported by the affidavit sworn by the applicant and opposed $20$ through an affidavit in reply sworn by the respondent. I will not reproduce the grounds outlined in the said affidavits however they will be considered in the resolution of the application.

#### Representation:

$\overline{5}$

Counsel Kiwanuka Richard appeared for the applicant while Counsel Ssemugerwa 25 Ronald appeared for the respondent. Only the applicant filed written submissions.

#### Resolution:

Counsel for the applicant relied on the provisions of Order 43 Rule 16 which allows reinstatement of a matter for non-appearance if sufficient grounds are proved. That in the instant case the applicant's appeal raises substantial questions of law and fact and that they were not aware of the date when the appeal came up

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as such they did not appear in court. That whereas the respondent, claims that they were never served with the court proceedings, they did attend court.

Counsel for the applicant prayed that the application be allowed as the applicant is ready to prosecute his appeal without undue delay.

The applicant in his affidavit stated that on the 22^nd May, 2018, judgment in Civil $\mathsf{S}$ Suit No. 69 of 2010 was delivered and the same was in favour of the respondent. That the applicant applied for a typed copy of proceedings and judgment and to date has never received them. That he went ahead and filed a memorandum of appeal however, when the appeal came up for hearing him and his counsel were not present and the appeal was dismissed for want of prosecution. 10

The applicant averred that he was prevented by the covid-19 pandemic and old age from following up the appeal.

The respondent on the other hand contended that when the applicant filed the memorandum of appeal, it had been signed and sealed by court on 26/6/2018 two years before the covid-19 outbreak and the country wide lock down. That the 15 applicant neither served the said memorandum nor took any step to fix the appeal since 2018 until it was dismissed on 22^nd November, 2022. Additionally, the applicant took no step to fix and serve the applications for stay of execution in the High Court No. 57 and 58 of 2021 until the later was dismissed on the 22^nd November, 2022. As such, it was the duty of the applicant to follow up his appeal 20 and move court to formally have his appeal fixed and serve the same onto the respondent.

Further, that the applicant's conduct and intention of filing different matters and not following them up but seeking to rely on them as a basis whenever the respondent commences execution of the decree is evidently an indication that the 25 applicant wants to frustrate him from realizing the fruits of the decree. That this matter has been in court for over 20 years and delaying it any further is an injustice to him besides litigation must come to an end. That the application was brought in bad faith and should be dismissed with costs.

I have carefully considered the application, the affidavits for and against it, the 30 submissions, the law and authorities cited there in to resolve this application.

It is my finding that the applicant in the instant case took no action in prosecuting his appeal, there is no evidence of letters written by his counsel to get dates for hearing the same but rather expected court on its own motion to serve and inform

him about the hearing dates. From 2018 to when the appeal was dismissed the 35 applicant did nothing but sit on his rights. There is also an affidavit of service on court record that indicates that the applicant could not be served because his

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counsel's chambers could not be found for service of the hearing notice to be effected. The applicant therefore had a duty to follow up on his matter vigilantly because there was a period of at least over a year from when he filed his . memorandum of appeal and when the Covid-19 pandemic hit the world which resulted in the country wide lock down. The applicant with all due respect cannot advance this as one of the reasons for failure to follow up his appeal.

That said, this is a very old case and litigation must come to an end. At this point this has become misuse of the court process and wasting court's time. Not to mention frustrating the respondent from enjoying the fruits of his litigation.

10 In the case of Brown v. Dean [1910] AC 373, [1909] 2 KB 57, it was stated that:

> "In the inferest of society as a whole, lifigation must come fo an end, and when a litigant has obtained judgment in a court of justice, he is by law entitled nof fo be deprived of that judgment without very solid grounds."

15 Also, in the case of Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2007] eKLR, it was observed that:

> "This is a doctrine which enables the courts fo say litigation must end af a certain point regardless of what the parties think of the decision which has been handed down."

20 I hereby find that the instant application is lacking in merit and no sufficient reason was advanced by the applicant for me to grant the same. The applicant ought to have followed up his appeal and applications diligently if at all he was interested in prosecuting them. This application is hereby dismissed with costs. so order.

Right of appeal if any explained.


OYUKO ANTHONY OJOK JUDGE

30 18/6/2025