THE R"EPUBLIC OF UGANDA

IN THE COURT OF'APPEAL OF UGANDA AT I(AMPALA

(Coram: Cheboion Baishaki, Chistopher Gashirabake & Asa Mugengi, JJA)

CTlnL APPLICATION NO. 148 OF 2024

(Arising from High Court (commercial Diuision) Miscellaneous Application No. 219 of
2023 Arising from High Court (Comrnercial Diuision) No. 921 of 2022)

BETWEEN

ALI MUWANGA KIBIRIGE:

(Executor of the estate of the late Bulaimu Kibirige) .APPLICANT

AND

1. YAKO BANK UGANDA LIMITED

2. KALULB I{ARUNA MUWANGA RESPONDENTS

RULING

[1]The Applicant brought this Application by way of Notice of Motion under

Rules 2(21, 5, 6(21 (6) , 4O(2), 42(2), 43 and 44(I) of the .Iudicature (Court
of Appeal Rules) Directions, SI 13-10 (the rules). The Applicant seeks
for extension of time within which to apply for leave to appeal against
the ruling and orders of the High Court (Commercial Division) in
Miscellaneous Application No. 219 of 2023 and for costs of the
Application.

The Application is premised on the following grounds:

a. That on 29th November 2022, the Fligh Court (Cornmercial

Division) entered a default judgment in Civil Suit No. l2I of

1
 2022 against the 2nd Respondent in favour of the l"t
Respondent.
b. That on 19th January 2023, the High Court issued a warrant of
attachment and sale of immovable property comprised in LRV
4000 Folio 4 Plot 46 Mulamula Road.
c. That on 8tl February 2023, the Applicant liled an application
for objector proceedings vicle Miscellaneous Application No. 214
of 2023, challenging the attachment and sale of the suit
property on grounds that it belongs to the estate of the late
Bulaimu Muwanga Kibirige but it was fraudulently and illegally
transferred to the 2nd Respondent. The application was
dismissed.
d. That following the dismissal of Miscellaneous Application No.
2L8 of 2023, the Applicant instructed his former lawyers of M/s
Kirumira & Co. Advocates, to appeal against the decision of the
Court.
e. That the Applicant diligently followed up his instructions to
appeal and on 13th April 2023, the Applicant's former lawyers,
M/s Kirumira & Co. Advocates, filed a notice of appeal and
requested for the record of proceedings.
f. That the Applicant's former lawyers applied for leave to appeal
against the decision of the l{igh Court dismissing HCMA No.
219 of 2023, but leave was denied.
g. That the Applicant's former lawyers, M/s Kirumira & Co.
Advocates did not inform or advise him of the intricacies of leave
to appeal against the decision of the High Court in HCMA No.
2L9 of 2023 and/or the time within which that had to be done.
h. That after filing of the notice of appeal, the Applicant honestly
believed that the necessary steps had been taken in respect of
his intended appeal.
i. That the intended appeal is meritorious, raises serious
questions for determination and has a high likelihood of
success.

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 j. That there is sufficient cause for not applying for leave to appeal
within time.

k. That there is a serious and imminent threat of execution, the

Application has been made without delay and that the
Applicant's intended appeal will be rendered nugatory if this
Application is not granted.

[2]The 1"t Respondent filed an aflidavit in reply sworn by Ms Kabateera

Lillian opposing the Application contending that:

1. the application is frivolous and vexatious as it is overtaken by

events.
2. the application is barred by law on leave to appeal.
3. the affidavit in support of the application is fatally defective for
containing material falsehoods that go to the root of the
application.
4. the application does not disclose a cause of action against the 1st

Respondent.
5. the allegations in the application are not substantiated since they
are subject of Civil Suit No. 358 of 2023 at Family Division.

Representation

[3]At the hearing of the Application, Mr. Bazzekuketta Derrick appeared

for the Applicant. Mr. Brian Rubihayo, Edigar Ayebazibwe and Mr.
Ainebyona Nelson, appeared for the l"t Respondent.

Submissions for the Applicant

[4]Counsel for the Applicant cited Rule 5 of the Rules of this Court and
F.L. Kad,erbhal & Anor a Shannsherall Zaver VtrJt & Ors, SCIIIA No.
20 of 2OO8 and Nabco Enterprises Uganda Llmlted Versus
Reglstered Tlustees of the Jostrll (Socletg of Jesus) SCCA No. 39 of
2027 and submitted that the Applicant must show that there exists

3
 sufficient cause for an application of this nature to be granted. That
mistake of counsel has in several decisions been held to amount to
sufficient cause and relied on the decisions in Capt. Phllltp Ongom
Versus Catherlne Ngero Outota SCCA No. 47 oJ 2OO7; and' Bugondo
Samuel Versus Ngansiana Talldda Sserttutadda & others SCCA
No. 72 of2O27.

[S]Counsel submitted that sufficient reason also means that a party had
not acted in a negligent manner or that the pafty cannot be alleged to
have been acting diligently or remaining inactive.

[6]Counsel further submitted that the Applicant's delay in filing Civil

Application No. 149 of 2024, was explained in paragraphs 6-13 and 15
of ttre affidavit in support.

[7]Regarding the length of the delay in filing this Application, Counsel

submitted that, considering all the facts surrounding the matter, the
Application was filed without unreasonablc delay. That the time
between the date of delivery of the ruling dismissing the application for
leave to appeal on the 5th of April2023 and the filing of Civil Application
No. 149 of 2024 on the 12th March 2022 was just 11 months and 7
days. That the delay rvas explained by the frling of the notice of appeal
on 13th April 2023 which made the Applicant to believe that the
necessary steps had been taken, whereas not.

[8]On the possibility or chances of success, Counsel submitted that Civil

Application No. 149 of 2023, which this Application seeks to validate,
raises arguable issues and has high chances of success proof of which,
was the attached memorandum of appeal showing the grounds of
appeal.

[9]As to the degree of prejudice that may be caused, Applicant's Counsel

submitted that if this application was not granted, Civil Application No.
149 of 2024, would be rendered nugatory and the decree would be
executed to the prejudice of the applicant and the beneficiaries of the
estate of the late Bulaimu yet the l"t Respondent can always recover

4
 the sums against the 2"d Respondent's other properties or engage other
modes of execution of the decree.

Counsel then pra5red for the Application to be allowed and for Application
No. 194 of 2024 to be validated.

Submission for the l"t Respondent.

[1O]In its written submission, the Respondent's Counsel submitted that
the Application was frivolous and vexatious because it had been
overtaken by events. He contended that the rights being sought in the
appeal from which this application arises are already a subject of
adjudication in High Court Civil Suit No. 358 of 2023 at Family Division.
In counsel's view, the fact that the Applicant opted to file a suit for court
to determine the rights raised in the objector proceedings, the order
dismissing the application became conclusive and therefore, even if the
time for applying for leave to appeal against the ruling in MA No. 219 of
2023; is enlarged, such order shall be in vain. In support of this
argument, Counsel relied on Order 22 R:ule 60 of the Civil Procedure
Rules.

[11]Counsel for the Respondent further submitted that the suit property
had already been sold, and issuing an order in this application will be
moot. That- by the time the Applicant fiIed HCMA No. 2L9 of 2023, the
1"t Respondent had already executed the warrant of attachment and
sale and took possession of the land frorn the 2"d Respondent on
14 /02 /2023. He referred to paragraph 7(c) of the aflidavit in reply and

annexures ('E" and "E1" thereon.

[12]Counsel further submitted that the instant application was brought in

bad faith to cover up the failures in High Court Miscellaneous
Application No. 548 of 2023. That after the dismissal of an application
for objector proceedings on L4/03/2023, the Applicant rushed to the
High Court Land Division and filed M.A No. 549 of 2023, on 20 /3 /2023
and obtained an interim order on 2a/3/2O23. That when the said
interim order was vacated, the Applicant rushed and obtained a

5
 temporary injunction on 4/512023, with a sole purpose to indirectly
stay execution at the Commercial Court Division of the High Court.

[13]Counsel for the Respondent further submitted that when the Applicant
secured the tempclrary injunction, his plans of staying execution were
fulfitled and thus decided to abandon the prosecution of the appeal.
That no sooner had the High Court Family Division discharged the
temporary injunction on 7 I 03 I 2024, than the Applicant rushed to this
Court to lile the instant application.

[la]The 1st Respondent's Counsel invited court to find that the above
events point to the fact that the Applicant has been on a spree of forum
shopping to intentionally frustrate the recovery process in HCCS No.
921 of 2022. He added that this Court should therefore exercise its
discretionary powers and deny this application in order to meet ends of
justice or to prevent abuse of court process.

[l5]Regarding material falsehoods in the aflidavit in support, Counsel for

the lst Respondent submitted that paragraph 9 of the affidavit in
support is false because M/s Kirumira & Co. Advocates are not former
lawyers. That they still have instructions since there is no notice of
withdrawal of instructions or a notice of change of advocates. To
support this proposition, he cited the case of Kabale Houslng Estate
Tenants Assoclatlon Ltd uersus Kabale Munlclpal Local
Goaernrnent Counctl SCCA No. 75 of 2013.

[16]Still on the same issue, Counsel submitted that M/s Pinnacle

Advocates are being used as a clisguise to mislead Court that the former
lawyers of M/s Kirumira & Co. Advocates were negligent. That even in
the most recent suit, HCCS No. 358 of 2023 at Family Division, the
same law firm of M/s Kirumira & Co. Advocates, was still representing
the applicant. He referred to Annexure "N" to the affidavit in support
and Annexure "A" to the affidavit in reply.

[17]Counsel further submitted that paragraph 12 of the aflidavit in support

is false because the Applicant was a party in HCMA No. 4l I of 2023

6
 and had all the information and knowledge that he rvas supposed to
seek leave of Court to file an appeal.

[18]As to the conditions for the grant of an applicatiorr for enlargement of

time, the 1"t Respondent's counsel submitted that such an application
will not be granted if there is inordinate delay in filing it. He relied on
the authority of Rossette Klzlto uersus Admlnlstrator General &
others, SCCA No. 9 of 1986.

[19] As to ',vhether the Applicant instructed his former lawyers to file an

application for leave, Counsel submitted that the evidence shows that
when the application for objector proceedings was dismissed on
14 lO3 / 2023, the applicant instead instructed his lawyers to secure an
interim order at Land Division vide M.A No. 549 of 2023, on
20/O3/2023. That, as an afterthought, the Applicant fiIed an
application for leave to appeal the nrling dismissing objector
proceedings on 20 lO3 /2024 vide M.A No. 4ll of 2023.

[20]That upon dismissal of M.A No. 41L of 2023, on 5/O4/2O23, and

despite knowing that he had to seek leave to appeal in this court, the
Applicant instead instructed his lawyers to secure a temporary
injunction vide M.A No. 548 of 2023, which was granted on 4/05/2023.
That after the said temporary injunction was discharged on 7 / 03 / 2024,
the Applicant, to use the words of Counsel, woke up from the slumber
and instructed his lawyers to file the instant application on
12lo3 /2024.

[2l]As to the merits of the application for leave to appeal and the appeal,
Counsel submitted that they do not raise meritorious and serious
questions that are worth the possibility of success. He reiterated the
holding of the trial judge in HCMA No. 41 I of 2023 at page 3-4.

l22lLs to whether the applicant is guilty of dilatory conduct, Counsel

submitted that the application for leave to appeal was determined by
the lower court on 3/O4/2O23 and the instant application filed on
l2/O312O24, almost a year after. He concluded that the instant

7
 application does not disclose the grounds for the reliefs sought and
prayed that it should be dismissed with costs.

Consideration of the Application

[23]In its submission, the 1st Respondent raised several issues as

preliminary points of law, namely that the application is over taken by
events, barred by law on leave to appeal; affidavit is fatally defective for
containing material falsehoods and that the application does not
disclose a cause of action.

l24lA preliminary point of law is a pure question of law, capable of

disposing off the suit without considering the merits therein. The law
on preliminary objections was well laid out in the case of Muklsa
B{scu{ts Manufacturlng Co. Ltd aersus West End. Dlstrlbutors Ltd
(1969) EA 696, that:

"A preliminary objection consists o/ the pleading uhich rise bg

clear implication out of the pleadings and which, if argued as a
preliminary objection nLaA dispose of the suit."

[25]This means that all the objections above, raised by the 1st Respondent's
counsel must amount to points of law which, if successfully
established, are capable of disposing of the Applicant's application.

[26]We have carefully studied thel"t Respondent's submission in respect

to the objections. Except for one which is to the effect that the
application is barred by law on leave to appeal, the rest deeply delve
into the merits and are not capable of disposing of the application. The
arguments therein tend to weigh more in justifying why this court
should not exercise its discretion to enlarge time than setting forth pure
matters of law capable of disposing the application. For instance, the
1st Respondent's counsel argues that paragraphs 9, lO, LL, 12 and 13
are false. Even if the said paragraphs are found to be false upon

8
 evaluating the evidence, the application may still sland on other
grounds and evidence on record. Such an argument is not in our view
capable of disposing of the application.

[27]Secondly, the argument that the Application does not disclose a cause
of action against the lst Respondent is farfetched. The instant
proceedings emanate from Miscellaneous Application No. 219 of 2023,
in which the Applicant's quest to release property from attachment was
denied. Subsequently, the Applicant sought for leave to appeal vide M.A
No. 411 of Z,OZS, which application was dismissed. The 1"t Respondent
was a party throughout these proceedings. To that extent, a proper and
a reasonable cause of action rightly exists andf or is disclosed against
the lst Respondent.

[28]As l.o the objection that the application is taken over by events, Counsel
for the l.t Rcspondent hinges his submission largely on two points,
namely, that at the time of bringing this application, the sale had been
completed and that the Applicant has since pursued other court
processes in the Land and Family Divisions of the High Court.

[29]We find that such arguments to be delving more in the merits of the
case than being pure points of law. They can best be handled while
determining whether there exists inordinate delay in bringing this
application. All those matters shall be considered when determining the
merits of this application.

[30]However, as to the objection that this Application is barred by law on

leave to appeal, we find this a pure matter of law, which, if it succeeds,
will fully dispose of the entire Application. We shall therefore, proceed
to consider it first.

Whether the application is barred by the law.

[31]To support his argument, Counsel for the 1st Respondent cited O.22
Rule 6O of the Civil Procedure Rules and submitted that where a claim

I
 or an objection is preferred, the party against whom an order is made
may institute a suit to establish the right which he or she claims to the
property in dispute, but, subject to the result of the suit, if any, the
order shall be conclusive.

[32]On the other hand, Counsel for the Applicant relied on the case of
Gelladine Busingye Begumisa versus East African Development
Bank & 3 others High Court Miscellaneous Application No. 1043 of
2023, and submitted that the law allows the Applicant to file an
application for leave to appeal against the ruling in objector proceedings
to establish an interest in the suit property and to file a separate suit
to establish rights in rem. To buttress his argument, Counsel for the
Applicant cited cases relating to objector proceeding that have been
entertained by this court and the Supreme Court.

[33]We have carefully studied the parties' submissions on this objection,

for the purposes of clarity, we labour to reproduce O.22 r. 66 of the Civil
Procedure Rules:

establish a to attached
Where a claim or an objection is preferred, the partg against whom
an order is made mag institute a suit to establish the right uthich
Lte or sh.e claims to the propertg in dispute, but, subject to the result
of the suit, if ang, the order slnll l'te conclusiue."

[34]Black's Law Dictionary, 4tn Edition, pg. 362, defines the word
"conclustue" to mean, shutting up a matter; shutting out all further
evidence; not admitting of expla.nation or contradiction; putting an end
to inquiry; final; irrefutable, decisive. [Emphasis is ours]

[35]From the foregoing definition, an order made against any party in an

application for objector proceedings, is final, irrefutable and shuts up
the matter, except that a party may institute a suit to establish the right

10
 which he/ she claims to have in a disputed property. It is clear from the
wording of O.22 r.60 of the Civil Procedure Rules, that suits for
establishing a right in the attached property are saved from the
conclusiveness or finality of the order.

[36]Counsel for the Applicant referred this Court to the decision of the High
Court in Gelladine Busingye Begumisa versus East African
Development Bank & 3 others Fligh Court (supra), to support a view
that the law allows a party to file an application for leave to appeal
against the ruling in objector proceedings.

[37]First and foremost, it is imperative to note that the said authority is

not binding to this Court. Nevertheless, we have spared time to study
it. In that case, the trial judge did not interpret the conclusiveness of
the Order under O.22 R.66 of the Civil Procedure Rules. While
overruling a similar objection, the learned Judgc stated:

"In mg uiew, a separate suit may be commenced notwitLtstanding the

result of ttrc objector application since the objector application seeks to
establish an interest in the propertg, ratlter than a legal ight enforceable
in rem. It also follous that there is no prouision barring an appeal utith
leaue from an order dismissing an objector proceeding since an objector
application seeks to establish an interest in the attached propertg and
the separate suit seeks to establish rtghts in rem."

[38]It is clear from the above holding that the learned Judge never
interpreted the wording of O.22 r. 6O of the Civil Procedure Rules. To
hold that an appeal or application for leave may be instituted from
objector proceedings, is to say, indirecfly, that an order arising out of
the objector proceedings is not conclusive. To hold so, is to totally
deviate from the wording of the rule.

11
 1391C^.22r. 60 of the Civil Procedure Rules shuts up and puts to an end an
inquiry into matters raised in objector proceedings. By using the phrase
that "tLte order shall be conclusiue", it simply means that no appeal is
envisaged under that rule.

[aO]In a persuasive authority by the Court of Appeal of Tanzania,

Sosthenos Bntno and Another aersus Flora Shaurl, Cknl Appeal
No. 249 of 2022, at pg. 12-14, the court considered a similar objection.
Order XXI Rule 62 of the Civil Procedure Code of the Republic of
Tanzania is in part materia, with our O.22 r. 60 of the Civil Procedure
Rules of Uganda. While upholding a similar objection, the Court stated:

"Under Rule 62 of that Order, the decisions of th.e court under Rules 59
and 6O are final and not appealable, as per the decision in Tlomas
Joseph Kimaro V Apaisaria Martin Curl Mkombo and Another [2022J
T.L.R 369 and manA others."

The Court advised;

"...Iloweuer, a partA aggrieued by the decision, under Rule 62 of

Order XXI, may lodge a suit in the Court of competent jurisdictioru as
per this court's decisiort in the Bank of Tanzania V Deuram P.

Valambhia, Ciuil Reference No.4 of 2003 and KeziaViolet Mato V The

National Bank of Commerce and three others, Ciuil Appeal No. 127
of 2OO5" The Court observed that:-
"Obuiousl14, tah.ere one loses in a subordinate court in a suit filed
pursuant to Order XXI Rule 62, has a right to challenge such a
decision to tLe lligh Court according to law."

[al]We are persuaded by the authorities of the Tanzanian Courts. This is

largely because, their Order XXI Rule 62 of the Civil Procedure Code,
Tanzantia, is the sarne as our Order 22 r.60 of the Civil Procedure Rules.

[a2$he pertirrent issue at hand for this court to decide, is whether or not
an appeal is allowed, or in other words, barred under Order 22 r. 60 of

t2
 the Civil Procedure Rules. It is trite that appeals are a creature of
statute. A right of appeal is either conferred or barred by a statue. See

Ba,ku Raphael Obudra V Attorneg General, Constltutlonal Appeal

No. 7 of2OOS.

[a3]The wording of O.22 Rule 60 of the Civil Procedure Rules clearly bars
any right of appeal by expressly providing that the order shall be
conclusive. The only course of action that is saved, is a separate suit to
establish a right in the attached property.

l44llt was argued by Counsel for the Applicant that an appeal can lie from
objector proceedings with leave of Court. Appeals arising out of orders
are governed by Section 76 of the Civil Procedure Act and O.44 Rules 1

and 2 of the Civil Procedure Rules. O. 44 Rule 1, lists orders which are
appealable as of right, while O.44 Rule 2, is to the effect that an appeal
arising from any other order shall not lie except with the leave of Court.

[45]Whereas O.44 Rule 2 of the Civil Procedure Rules, generally provides

for a right to appeal any order made under the rules, with leave of court,
O.22 Rule 60, specifically bars an appeal arising from objector
proceedings. This is because, the latter rule restricts any other cause of
action, by providing that the order is conclusive.
In the premises, we uphold the 1"t Respondent's objection.

[a6]The above resolution on the preliminary objection has an effect of

disposing of the entire application. Ordinarily, there would be no need
to delve into the rest of the issues. However, it is perhaps necessary, for
completeness, to briefly state that we would have dismissed the
application for the reasons below.

l47llt was also contended by the 1"t Respondent that the instant
application is an abuse of court process. Court will sparingly exercise

13
 its discretionary powers to aid a litigant who is using the court
processes for improper motives.

[a8]In Vamee Industrles Ltmtted uersus Commlssloner Land,

Reglstratlon and. Attorneg @nero,l, Court oJ Appeal CUil Appeal
No. 342 of 2022, the court stated:

.The abilitg of the court to stag or strike out an action as an abuse

of procedure of the court is a long-standing remedg, inh.erent power

of tte
Court and is pt ouided for under ttrc Ciuil Proredure Act.. . The
courts should not be clogged bg re-determination of the same
disputes; and the priuate interest that it is unjust for a partA to be
uexed twice with litigation on the same subject matter. I'his is uthy
a partg is precluded from raising, in subsequent proceedings,
matters uhich could or should haue been raised in earlier ones for
purposes of establishing a cause of actioru"

[49]Counsel for the 1st Respondent submitted that the Applicant has since
filed a separate suit, No. 358 of 2023, Ali Muwanga Kibirige (Executor
of the Estate of the Late Bulaimu Muwanga Kibirige) Versus (1) Kalule
Haruna Muwanga, (2) Commissioner Land Registration and (3) Yako
Bank Uganda Limited, at the Family Division of the High Court.

[50]We have perused a copy of the Amended Plaint (Annexure A to the 1st

Respondent's Affidavit in to the said plaint, the

Reply). According
Applicant in the instant application is the Plaintiff, while the
Respondents herein, are the Defendants. The Applicant's claim therein
is for fraudulent transfer of property comprised in LRV 4000 Folio 4 Plot
46, Mulamula Road, and the averments in the instant application, are
substantially the same with those in the said suit.

[5l]Section 6 of the Civil Procedure Act bars this Court from proceeding
with the trial of any suit or proceeding in which the matter in issue is

74
 also directly and substantially in issue in a previously instituted suit or
proceeding between the same parties, litigating under the same title,
where that suit or proceeding is pending in the same or any other court
having jurisdiction in Uganda to grant the relief claimed.

[S2]According to the facts, the "2nd Amended Plaint" in Civil Suit No. 358
of 2O23, was filed on 28th December 2023, while the instantApplication
was filed on 12th March 2024. The averments and issues in HCCS No.
358 of 2023 are substantially the same with those that the Applicant
seeks to raise in the intended appeal. The affidavits in Civil Application
No. 149 of 2024, which this Application seeks to validate and the
intended memorandum of appeal, all allege fraudulent transfer of land
comprised in LRV 4O0O Folio 4 Plot 46, Mulamula Road.

[53]If this Court allows the instant Application and validate Civil
Application No. L49 of 2024, the hearing of the resultant appeal will be
a proceeding or an investigation which will upset or interfere with sarne
matters now pending before the Family Division of the High Court.

[S4]Regarding sufficient cause, it is trite law that the grant of leave to

extend time is a matter of judicial discretion and not a right. A party
that inordinately delays in seeking for a discretionary relief, may put
the court in a position of refusing to grant such a discretionary relief.
See Davld, Muhend.a tnrsus Humphreg Mlrembe, SCCA No. OS of
2072, pg. 23.

[55]In addition, if an applicant is guilty of dilatory conduct, the time will

not be extended. In Hadondi Daniel uersus Yolamu Egondi, CACA No. 67
of 2003, it was stated:
"It is tite law that time can only be extended if suJficient cause is
sLnwn. TLrc sufficient cause must relate to tLrc inability or failure to
take necessary step utithin the prescribed time. It does not relate to

15
 taking a urong decision. If the applicant is found to be guiltg of
dilatory conduct, the time uill not be extended"

See also, Mullnduta korge Wllllo;m aersus Klsublka Joseph

Suprelme Court Ctull Appeal No. 72 oJ 2074.

[56]In the instant application, the Applicant filed an application for

objector proceedings vide Miscellaneous Application No. 0219 of 2023,
which application was dismissed by the High Court on L4/03/2023.
Thereafter, the applicant sought for leave to appeal vide Miscellaneous
Application No. 4LL of 2023, and the same was dismissed on
5/04/2023. Upon the dismissal of the latter application, the applicant
ought to have without delay, sought for leave to appeal in this court.
However, he waited for 11 months to file Civil Application No. 149 of
2024, which he is now seeking to validate. Instead of filing an
application for leave to appeal or an appeal itself and an application to
validate the same, the Applicant decided to explore other remedies and
other legal process in the Family and Land Divisions of the High Court.

[57]In paragraphs 10 and 11 of the affidavit in support, the Applicant

states that after the dismissal of HCMA No. 219 of 2023, he instructed
his lawyers to file an appeal, which instructions he followed up
diligently and confirmed that his lawyers had filed and served a notice
of appeal and a letter requesting for the record of proceedings. However,
under paragraph 13, the Applicant states that after filing the notice of
appeal, he honestly believed that the necessary steps had been taken
in respect of his appeal. Furthermore, in paragraph L2, the Applicant
states that his former lawyers did not inform or advise him on the
intricacies of leave to appeal andf or the time within which that had to
be done.

[S8]From the foregoing averments, the reason advanced by the Applicant

for his failure to take necessary steps in time is not clear. What we are

76
a

able to decipher from paragraphs 10, 11, 12 and 13 is a distorted

account of events. Paragraph 12 strongly suggest that after the
dismissal of MA No. 219 of 2023, the Applicant did not know the next
course of action to take since he claims that his former lawyers did not
inform or advise him on the intricacies of leave to appeal and/or the
time within which he was supposed to do it. But, what comes out clearly
from the facts is that the applicant was well aware that he was required
to seek leave to appeal. This is conlirmed by the fact that he had earlier
on fiIed an application for leave to appeal in the lower Court vide
Miscellaneous Application No.41L of 2023, which application was
dismissed.

[59]By participating in those proceedings, the Applicant cannot feign

ignorance of the need to seek for leave to appeal, since he went to the
I{igh Court seeking the same remedy. His averment in paragraph L2,
that he was not informed or advised on the matters of leave to appeal,
is a statement totally incompatible with the truth, given his previous
conduct of filing an application for leave in the lower court.

[60]Having stated that he was neither informed nor advised about the
"intricacies" of leave to appeal, the Applicant also added that he
diligently followed up his instructions to appeal against the decision in
MA No. 219 of 2023. Again, we find this averment incompatible with
truth. Diligent follow up of instructions to appeal cannot be done by a
litigant who claims that he was neither informed nor advised on the
"intricacies" of leave to appeal or the time within which that had to be
done. Therefore, the averments in paragraph 11 are totally incompatible
with those in paragraph 12 and the two cannot be pieced up together
to constitute a true, coherent and chronological flow of events.

[61]Lastly on this point, under paragraph 13, the applicant states that
after filing the notice of appeal (13ttt April2023), he honestly believed
that the necessary steps had been taken in respect of his appeal. This
averment confirms one thing, that after filing the rrotice of appeal on

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13th April 2024, the Applicant only believed that all steps had been
taken. It dispels his claim that he diligently followed up his instructions
to appeal. Surely, if the Applicant had diligently followed up his
instructions as claims, he would have discovered that his intended
appeal had not been filed for a period of 11 months and 7 days.

[62]We find that applicant's actions amount to inordinate delay and

dilatory conduct.
[63]Having found that the applicant is guilty of dilatory conduct, inordinate
delay coupled with an abuse of court process, we decline to exercise our
discretion to grant an extension of time.
[6a]In conclusion and for the reasons mentioned above, this application is
dismissed with costs to the l"t Respondent.

Dated at Kampala this 1dr,", of ....2025

Cheborion Barishaki
Justice of Appeal
r I

Gashirabake
Appeal

?"1
Justice of Appeal

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