The Republic of Uganda

In the High Court of Uganda at Kampala

(COMMERCIAL DIVISION)

miscELLANEOUS application no. 573 of 2011

(arising from h.c.c.s nO. 196 of 2009)

                                                                      SUMAN KARA   ………………………………….………………………………..    APPLICANT/PLAINTIFF

VERSUS

                                                                      NIPUN BHATIA

                                                                             DEEPUM BHATIA      ………….……………………….........................   RESPONDENT/DefendantS

                                                                                                            BEFORE:  THE HON. JUSTICE GEOFFREY KIRYABWIRE

                                                                                                                                                     R U L I N G

This application is to set aside an order of the Registrar refusing an adjournment and thereafter proceeding ex-parte to tax a bill of costs.

At the hearing of the application Counsel for the Respondent Mr. Ebert Byenkya raised a preliminary objection that he said would dispose of the matter.

The objection as framed by Counsel for the Respondent was made pursuant to Section 62(1) of The Advocate Act which provides

“Any person affected by an order or decision of a taxing officer made under this part of the Act or any regulations made under this part of the Act may appeal within thirty days to a Judge of the High Court who on that appeal may make any order that the taxing officer may have made …”

Counsel for the Respondent submitted that the order of the learned Registrar was made on the 9^th September 2011 but that this appeal by way of application was made on the 11^th October 2011 hence was out of time

Counsel for the Respondent further submitted that since the time frame for appeal was set by statute and not rules the present application could not be cured.

Mr. Jimmy Muyanja Counsel for the Applicant in reply submitted that any delay in this matter was occasioned by the inaction of the Registrar’s office.  He submitted that on the 12^th September 2011, he wrote to the Registrar for a record of the proceedings so that he may prosecute an appeal therefrom.  He further submitted that todate he has not obtained a certified copy of the proceedings and “… transcribed my own copy of the proceedings …”  (Annex ‘F’ vide affidavit of Mr. Jimmy Muyanja dated 10^th October 2011).

He referred me to the case of Kilembe Mines Ltd  V  B. M. Steel Limited MC 0002 of 2005 for the proposition that any inaction of a Registrar of Court cannot be visited on the parties.

He further prayed Court to apply Article 126 of the Constitution and Section 33 of the Judicature Act to allow the Applicant to be heard.

The preliminary objection as I see it, is that the Applicant made her application out of time as set by statute and is therefore time barred.  According to the computation given by Counsel for the Respondent the Applicant filed this application two days late.

In the case of Makula International Ltd V Cardinal Nsubuga & Anor [1982] HCB (CA), it was held that a court has no residual or inherent jurisdiction to enlarge a period of time laid down by Statute and therefore the decision of the Judge in that Appeal in ordering extension of time within which to appeal several months after the expiry of a statutory period was made without jurisdiction was a nullity and would be set aside. 

Counsel for the Applicant has submitted that the delay was caused by inaction by the Registrar to provide a certified copy of the proceedings which todate has not been provided and therefore should not be visited negatively on his client. 

The wording of Section 62(1) of the Advocates is that any person affected by an order or decision of a taxing officer may appeal within thirty days.  The use of the word “may” in the Advocates Act as compared to “shall” in Section 79 (2) of the Civil Procedure Rules appears to me to be more permissive.

In the Kenyan case of A. Behan and Okero  V Pan African Insurance Co. Ltd MC 229 of 2003 Justice Warsame held that whether or not to extend time for making a reference from a decision of the taxing master is discretionary and like all discretion it must be based on legitimate reasons.  The explanation must be adequate and plausible through not necessarily sufficient.  The learned Judge further held that once there is a delay whether it is one day or one year, there must be some kind of explanation or material.  The cause of delay cannot constitute an automatic refusal but the cause of delay must be legitimate and must be explained to the court.

In the further case of Tisdale Jones V Sargent [1957] EA 613, it was held that there is discretion of court to extend time for the preparation of the record but that the same would not ordinarily be extended unless the Applicant shows that he acted with real diligence.

Finally more recent authorities in Uganda like Kilembe Mines (supra of Hon. Justice Egonda Ntende cited by Counsel for the Applicant) and Uganda Co-operative Transport Union V Roko Construction Ltd CA No. 12 of 1997 (sc) suggest that where there is an error or fault of the Court then the ends of justice dictate that this should not negatively be visited on the Applicant.

In this case the delay is two days and reason of the absence of a certified record that was formally applied for sounds adequate.  The decision in Makula International is distinguishable as the wording relating to appeals from the Registrar is permissive.  This gives the Court room for discretion.  I furthermore see no real prejudice to the Respondent.  I accordingly apply that discretion in favour of the Applicant and overrule the preliminary objection.

Costs to abide the outcome of the application.

Justice Geoffrey Kiryabwire

JUDGE

Date:  18/04/2012