Civil Reference No. 7 of 2004
The applicant, Commissioner General TRA, had been the appellant in Civil Appeal No. 118 of 2012, which the Court of Appeal dismissed on 21 July 2014 for failure to enter appearance under Rule 112(1) of the Court of Appeal Rules, 2009. Under Rule 112(2) and (3), an appeal dismissed for non-appearance may be restored within thirty days if sufficient cause is shown. The applicant, however, failed to lodge an application for restoration within that thirty-day period. Consequently, the applicant brought the present application under Rule 10 of the Rules, seeking an extension of time within which to file the application for restoration of the dismissed appeal. The respondents, though duly served on 26 February 2015, did not enter appearance and offered no explanation for their absence; the Court proceeded to hear the matter under Rule 63(2). Counsel for the applicant relied on paragraphs 5 and 6 of the supporting affidavit, which attributed the delay to the fact that the applicant's advocate, Jane Kimweri, was unavailable/on leave until 22 August 2014, and that she—being the person capable of deposing to the relevant facts—was sick and out of duty, returning only on 22 August 2014, a date beyond the statutory filing deadline.
Whether the applicant had shown sufficient cause, through a properly constituted affidavit, to justify the Court exercising its discretion under Rule 10 of the Court of Appeal Rules to extend time for filing an application for restoration of the dismissed appeal; and, relatedly, whether the affidavit filed in support of the application complied with the legal requirements governing the content and sourcing of affidavit evidence.
For the applicant, learned counsel Mr. Primi Manyanga submitted that the reasons for the delay were fully set out in paragraphs 5 and 6 of his affidavit, namely that the applicant's advocate, Jane Kimweri, was unavailable and later fell sick, being out of duty until 22 August 2014, which was beyond the statutory time limit for filing the restoration application. On this basis, he prayed that the Court extend time, with costs to be in the cause. The respondents did not appear at the hearing and, having failed to explain their absence despite due service, advanced no arguments before the Court.
The Court held that the application could not succeed because the supporting affidavit was incurably defective. Although Mr. Manyanga deponed to the affidavit and verified its contents as true to his best knowledge, the statements concerning the sickness and unavailability of Advocate Jane Kimweri purported to originate from Kimweri herself, yet the affidavit did not disclose the source of this information — it did not state that the deponent personally witnessed her condition or explain the basis of his belief in the truth of the averment. Citing Uganda v Commissioner of Prisons, Ex-parte Matovu [1966] E.A. 514, the Court reiterated that an affidavit, being a substitute for oral evidence, must contain only statements of fact to which the deponent deposes either from personal knowledge or from information he believes to be true, with the source of such information properly disclosed. Because the affidavit failed to meet this standard, it was found to have 'no leg to stand on,' and the application was struck out. No order was made as to costs.
The ruling reaffirms a foundational evidentiary principle applicable to applications for extension of time and other interlocutory applications before the Court of Appeal: affidavits must clearly distinguish between statements made from the deponent's personal knowledge and those based on information received from others, and in the latter case must disclose the source of that information and the deponent's basis for believing it to be true. A failure to do so renders the affidavit incurably defective, regardless of the Court's otherwise wide discretionary power under Rule 10 to extend time upon a showing of good cause. The decision illustrates that procedural discretion to extend time cannot be exercised in a party's favour where the evidentiary foundation for showing sufficient cause is legally deficient, underscoring the importance of proper affidavit drafting in applications for extension of time or restoration of proceedings.
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