[2018] EACJ 49

Source-derived case information.

Citation: [2018] EACJ 49
Parties: Applicant: Castro Pius Shirima; Respondent: Attorney General of the Republic of Burundi; Respondent: Attorney General of the Republic of Kenya; Respondent: Attorney General of the Republic of Rwanda; Respondent: Attorney General of the United Republic of Tanzania; Respondent: Attorney General of the Republic of Uganda; Respondent: Secretary General of the East African Community
Court: East African Court of Justice
Jurisdiction: Uganda
Case Number: Appeal 3 of 2017
Procedural Posture: Miscellaneous Application / Application for Reinstatement of Appeal
Outcome: application dismissed with costs
Judges: Kiryabwire JA, Nkurunziza VP, Ringera JA, Rutakangwa JA, Ugirashebuja P
Legal Topics: Abuse of Court Process, Reinstatement of Appeal, Service of Process
Source Language: en

Civil Procedure Abuse of Court Process Reinstatement of Appeal Service of Process

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Downloadable case file Legal principles 3 Authorities cited 1 Party arguments 2

Parties

Castro Pius Shirima

Applicant

Attorney General of the Republic of Burundi

Respondent

Attorney General of the Republic of Kenya

Respondent

Attorney General of the Republic of Rwanda

Respondent

Attorney General of the United Republic of Tanzania

Respondent

Attorney General of the Republic of Uganda

Respondent

Secretary General of the East African Community

Respondent

Procedural Posture

Miscellaneous Application / Application for Reinstatement of Appeal

Legal Issues

1 Whether the application for reinstatement of Appeal No. 3 of 2017 was properly before the court under the relevant rules.
2 Whether the applicant's conduct amounted to further abuse of court process.
3 Whether costs should be awarded against the applicant despite the public interest nature of the litigation.

Ratio Decidendi

The court found that the application for reinstatement was misconceived because the original appeal was dismissed for abuse of court process, not for non-appearance, and thus Rule 107(2) did not apply. The applicant's failure to serve the application on all respondents and failure to appear at the Scheduling Conference constituted further abuse of court process. The court exercised its discretion to award costs against the applicant due to repeated abuse, despite the public interest nature of the litigation. To prevent further abuse, the court directed that no further applications relating to this matter would be entertained.

Court Disposition

application dismissed with costs

Orders

The application dated 5th March 2018 is dismissed with costs as an abuse of court process.
No further application relating to this matter shall be entertained at the Registry.

Full Case Text

Judgment text and source record

28 paragraphs

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# **IN THE EAST AFRICAN COURT OF JUSTICE APPELLATE DIVISION AT ARUSHA**

### **APPLICATION NO. 3 OF 2018**

## **IN THE MATTER OF REINSTATEMENT OE APPEAL NO. 3 OF 2017**

#### **BETWEEN**

**CASTRO PIUS SHIRIMA............................................. APPLICANT**

### **VERSUS**

| ATTORNEY GENERAL THE OF THE REPUBLIC BURUNDI1st RESPONDENT OF | |------------------------------------------------------------------------------------------------------| | ATTORNEY GENERAL THE REPUBLIC THE OF KENYA 2nd RESPONDENT OF | | ATTORNEY GENERAL THE REPUBLIC THE OF RWANDA RESPONDENT OF 3rd | | ATTORNEY GENERAL THE THE UNITED OF TANZANIA 4th RESPONDENT REPUBLIC OF | | ATTORNEY GENERAL THE THE REPUBLIC OF UGANDA RESPONDENT OF 5th | | SECRETARY GENERAL EAST AFRICAN THE OF COMMUNITY 7th RESPONDENT |

#### **ORDER OF THE COURT**

On 15th February, 2018, the Court dismissed Appeal No. 3 of 2017 for the reason that the conduct of the Agent for the Appellant amounted to abuse of Court process within the contemplation of Rule 1(2) of the Rules of the Court.

On 5th March 2018, the Advocate for the Appellant filed a Notice of Motion seeking an order for Appeal No. 3 of 2017 to be reinstated and heard on the merits. The Motion was expressed to be made under Rules 107(2) and 1(2) of the Rules of the Court.

The said Motion was fixed for Scheduling Conference on 9th May 2018 and all the Parties were notified of the Scheduling Conference.

At the Scheduling Conference, neither Appellant nor his Advocate appeared. All the Respondents, save the Republic of South Sudan, appeared at the Scheduling Conference and were represented by Counsel. All Counsel, save from the Republic of Uganda complained that they had not been served with the Application subject matter of the Scheduling Conference. Further, all Counsel, without exception, prayed the Court to dismiss the Application with costs.

The Court has taken note of the Application, the absence of the Applicant and/or his Advocate, and the submissions of the learned Advocates for the Parties. Having done so, we are of the persuasion that the Application dated 5th March 2018 and lodged in the Registry on the same date should be dismissed with costs as being an abuse of the Court process for the following reasons.

First, the Application for reinstatement of the Appeal is misconceived as the Appeal was not dismissed for non appearance under Rule 107(1) but for abuse of Court process under Rules 1 (2). It was not in the premises open to the Appellant to make an Application for it to be restored for hearing on the merits under Rule 107 (2).

Secondly, the conduct of the Applicant in filing an Application but failing to serve it on all the Respondents, save Uganda, and also failing to appear personally or by his Advocate at the Scheduling Conference amounts to further abuse of the Court process.

Thirdly, as regards costs, although this Court would not ordinarily award costs against a person litigating in the public interest, the repeated abuse of the Court process by the Applicant in this matter impels us to exercise our discretion otherwise.

Last, but not least, the Court desires to put a stop to any other possible abuse of its process by directing that no further Application relating to this matter shall be entertained at the Registry.

It is so ordered.

Dated this 9th day of May, 2018 at ARUSHA

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Emmanuel Ugirashebuja **PRESIDENT**

Liboire Nkurunziza **VICE PRESIDENT**

Edward Rutakangwa

**JUSTICE OF APPEAL**

Aaron Ringera **JUSTICE OF APPEAL**

Geoffrey Kiryabwire **JUSTICE OF APPEAL**

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