Ssebina David and Others v Kiguba James Sewagaba and Others (Miscellaneous Application No. 1725 of 2024) [2025] UGHCLD 59 (5 May 2025)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO.1725 OF 2024 (ARISING FROM MISC. APPEAL NO. 1151 OF 2022) (ALL ARISING FROM CIVIL SUIT NO. 813 OF 2021)

- 1. SSEBINA DAVID - 2. MOSES WADDIMBA - 3. SSENTONGO DDIBA ::::::::::::::::::::::::::::::::::::::::: APPLICANTS - 4. NAKAYE JANIPHER - 5. NANTONGO ERESI - 6. SSEKITOOLEKO GODFREY KABAALE

VERSUS

- 1. KIGUBA JAMES SSEWAGABA - 2. SSEWANONDA ISAAC SSEMWAGABA - 3. SSEWAGABA IVAN - 4. MAWANDA WILLIAM SSEWAGABA - 5. SSEMBAJJWE ROBERT - 6. KIWANUKA MAGALA ROBERT - 7. ESEZA NALWOGA - 8. MUGERWA SAM DODO - 9. WILLIAM MAWANDA - 10. SSEMPIJJA EDWARD - 11. RAJAB SEBULIME

- 12. NDYOMUGABE DAVIS :::::::::::::::::::::::::::: RESPONDENTS - 13. ISSI DDAMULIRA - 14. FELIX KIZITO - 15. KATO BUMALI - 16. ASUMAN WANDERA - 17. FRANK KAYONDO - 18. LUBEGA CHARLES - 19. KALYESUBULA LIVINGSTONE - 20. MUYANJA JOEL - 21. MUJOMBA - 22. KASAATA EDDIE

BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA

RULING.

*Introduction:*

- 1. This was an application by notice of motion brought under Section 33(now section 37 of the revised laws) of the Judicature Act, Order 9 rule 23 and 28, Order 52 rules 1 & 2 of the Civil Procedure Rules (CPR) for orders that: - i) The dismissal of the applicants' appeal on the 19th of June 2024 be set aside. - ii) Costs of the application be provided for.

*Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by the 2nd applicant on behalf of all the applicants which briefly states as follows; - i) That the applicants filed Misc. Appeal No. 115 of 2022 before this court. - ii) That this court fixed the said Misc Appeal for the 4th of June 2024 - iii) That court adjourned the same to the 19th of June 20204 - iv) That when the said appeal came up that day, the 1st and 2nd applicants arrived at court at 8:00am however their lawyer came at 9:15am due to traffic jam. - v) That despite the presence of the 1st and 2nd applicants, the said Misc Appeal was dismissed by court. - vi) That although Misc. Application was fixed for 9:00am, there is no hard and fast rule that ousts the jurisdiction of this court to wait for at least half of the parties to the suit to be present.

*Respondent's evidence;*

- 3. The application is responded to by affidavits in reply deponed by the 2nd respondent on his own behalf and on the behalf of the 1st,3rd,4th, 5th, 6th,7th,8th and 9th respondents, another deponed by the 11th respondent on his own behalf and on the behalf of the 10th respondent and one deponed by the 12th respondent which briefly state as follows; - i) That the applicants filed Misc appeal No. 1151 of 2022 which was dismissed on the 19th of June 2024. - ii) That on the day the appeal was fixed for hearing, neither the applicants nor their lawyer was present in court despite being served by the respondents. - iii) That the instant application doesn't disclose any sufficient cause to necessitate a grant of the orders sought. - iv) That the negligence of the applicants and their lawyer cannot be vested on the respondents.

*Representation;*

4. The applicants were represented by M/S John. F. Ssengooba & Co Advocates whereas the 1st – 9th respondents were represented by M/S Maldes Advocates, the 10th and 11th respondents were

represented by M/S Sage Advocates and the 12th respondent was represented by M/S Davis Ndyomugabe & Co. Advocates. The applicants and 1st -12th respondents filed their respective affidavits and submissions which this court has relied on in the determination of this application.

*Issues for determination;*

*Whether the instant application raises grounds for setting aside the dismissal order vide Misc. Appeal 1151 of 2024? What remedies are available to the parties?*

*Resolution and determination of the issues;*

- 10. The power to readmit/reinstate an appeal is discretionary in nature and the same is often exercised upon sufficient cause being shown by the appellant. - 11. Sufficient cause is defined to mean an expression which has been used in a large number of statutes. That the meaning of the word sufficient is adequate or enough in as much as may be necessary to answer all purposes intended. Therefore, the word sufficient embraces no more than that which provides a platitude

which when the act is done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. (See; Gideon Mosa Onchwati v Kenya Oil Co. Ltd & Anor [2017] KLR 650 and Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers Society & Anor MA 696 of 2018).

- 12. In the instant case the applicants aver in their affidavit and submissions that on the 19th of June 2024 at 9:00am when the said appeal came up before the trial judge, the applicants were within the court premises where they did not hear the file being called by the clerk and their lawyer arrived at 9:15am after the file had been dismissed by court. - 13. The perusal of the court record indicates that the said appeal was dismissed in the presence of the 10th and 11th respondent only for non-appearance of the applicants, further the said appeal first came up on the 4th of June 2024 where it was adjourned to the 19th of June 2024 due to the same reason it was dismissed for. The applicants' lawyer was served with the hearing notices indicating that the Misc. Appeal was coming up on the 19th of June 2024 at 9am.

- 14. The 1st and 2nd applicants that were around court premises on the said date by 8:00am, as prudent litigants ought to have interacted with the clerk to find out what time their file was to be called before the trial judge. It appears that the litigants sat back and only waited for their lawyer who reached court passed the fixed time and after the appeal had been dismissed. The fact that the Misc appeal was dismissed in the presence of the 10th and 11th respondent means that the clerk called the file during the time it was supposed to come up before the judge. - 15. Counsel for the applicants submitted that the trial judge should have waited for at least half of the parties to the suit to appear before proceeding with the application. I find this statement very strange both at law and procedure, there is no specific law that provides for the same. - 16. Its trite that mistake of counsel should not be vested on litigants but I am of the view that the said position does not apply to a situation where the litigants are part of their counsel's mistake as it is in the instant case. At some point litigation has to come to an end and courts will not be store keepers of cases that have failed

to proceed because of the negligent conduct of the parties and their lawyers.

- 17. I am of the finding that the reason the applicants herein rely on to have their dismissed appeal reinstated to be short of what amounts to a sufficient cause. - 18. Therefore, the instant application is hereby dismissed by this court with no orders as to costs.

I SO ORDER.

NALUZZE AISHA BATALA

Ag. JUDGE.

05th/05/2025

*Delivered Electronically via ECCMIS on the 05th day of May 2025.*