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Central Electricals International Ltd & Anor Vs Prestige Investments Ltd

Media Neutral Citation1 7%&/%8 U*C4MMC %& .udgment "ate1 /% April %&/% Attac ment C-NT#AL -L-CT#ICALS INT-#NATI4NAL LT" AN4# 9 '#-STI*IN9-STM-NTS LT"5doc: T"E REPU#LIC O$ U%A&'A I& T"E "I%" COURT O$ U%A&'A AT (A)PALA *CO))ERCIAL 'IVISIO&+ )ISCELLA&EOUS APPLICATIO& &O,-./ O$ .011 2Arising 3rom ",C,C,S, &o, 444 o3 .0056
1. CE&TRAL ELECTRICALS I&TER&ATIO&AL

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LT' & A&OR 77777777777777777777777777777 APPLICA&T81ST COU&TER 'E$E&'A&T 1. SA)UEL SE#I'E SE&TO&%O77777777777APPLICA&T8.&' COU&TER 'E$E&'A&T VERSUS PRESTI%E I&VEST)E&TS LT'77777777777777777777777 RESPO&'E&T8COU&TER CLAI)A&T #E$ORE7 "O&, LA'9 JUSTICE "ELLE& O#URA RULI&% T e applicant broug t t is application b) Notice o! Motion under t e provisions o! 4rder 0 rules 0$ > ? />$ 4rder > rule /&$ 4rder 2 rules / @3A @aA$ @bA$ @cA ? 3%$ 4rder 6 rules %3 ? %2 and 4rder 2% rules / ? 3 o! t e Civil 'rocedure #ules @C'#A5 T e applicant is seeking !or orders t at t e amended ,ritten Statement o! "e!ence @,S"A and counter+claim be struck out and t e respondentBsCcounterclaimantBs amended counter claim be dismissed wit costs and t at t e main suit proceeds in de!ault o! t e de!endant !iling a de!ence5 T e application is supported b) t e a!!idavit o! Ms5 =embabaDi Annet dated %nd November %&//5 In paragrap s %+2 s e states t at t e respondent was on 2C/&C%&// allowed b) t is court to amend its ,S" and add M ? - Associates Ltd as a 3rd counter+de!endant5 A cop) o! t e order was attac ed as EAF5 Furt er t at t e respondent was also directed to !ile and serve t e amended ,S" wit in /2 da)s and in an) event b) %&C/&C%&//$ w ic was never done wit in t e time limited b) t e court5

A!!idavits in repl) were sworn b) Mr5 =atende *od!re) a clerk in t e law !irm o! MCS Ntende$ 4wor ? Co5 Advocates and Mr5 C arles 4wor an advocate in t e same !irm5 =atende in is a!!idavit stated t at on %&t 4ctober %&//$ e received !rom is superiors an amended ,S" and counterclaim !or !iling and e proceeded to !ile t e same at t e Commercial Court #egistr) as instructed5 Furt er t at a!ter t e documents were received and stamped at t e registr) e was advised to take t em !or assessment o! court !ees w ic e did and proceeded to t e bank but b) t e time e completed t e process it was close to 25&& pm5 He deposed t at t e process o! pa)ing !ees in t e bank was not completed until Monda) %;t 4ctober %&// w en e was given a receipt w ic e returned to t e court registr) and t e pleadings were endorsed and returned to im !or service5 Furt er t at e served t e same on %2t 4ctober %&//5 Mr5 C arles 4wor on is part deposed t at w en t is court granted leave to t e de!endantCcounter+claimant to !ile and serve an amended ,S" and counterclaim$ t eir client went to t eir o!!ice several times to remind t em about t e limited period wit in w ic t e) ad to !ile t e amendment5 Furt er t at due to power outages in t eir o!!ice localit) t e) were onl) able to complete t e amendments on t e deadline date5 T at conseGuent upon t at$ t e) were onl) able to !ile it on t e last da) o! t e order$ t at is$ on %&t 4ctober %&// and t e court registr) dul) received t e same5 From paragrap s 2+< e repeated w at was allegedl) done b) Mr5 =atende as stated in is a!!idavit5 He deposed t at given t at t e de!endant tried$ against all odds$ to !ile t e amended ,S" and counterclaim wit in t e time ordered t ere was willingness to subscribe to t e Hurisdiction o! t is court and to ensure t e ends o! Hustice are met5 Furt er t at t e de!endantCcounter+claimant did not de!ault in !iling an amended ,S" and is not to blame !or t e !ailure o! t e law)ers and oug t not to be penalised !or suc !ailure5 He concluded t at t e Hustice o! t is case reGuires t at t e substance o! t e dispute be investigated and decided on merit and an) lapse on t eir part oug t not to bar t e de!endantCcounter+claimant !rom pursuing t e remed) it seeks5 , en t is application was called on !or earing on 2t "ecember %&//$ t e applicants were represented b) Mr5 Simon Tendo =abenge and t e respondent b) Mr5 Frederick Samuel Ntende5 Mr5 Ntende in!ormed court t at e was not prepared to proceed wit t e application and besides e ad anot er matter in (uganda #oad Court to attend to5 He pra)ed !or an adHournment to enable im attend to t e matter in (uganda #oad Court and also prepare to argue t is application5 Alt oug is pra)er was strongl) opposed b) counsel !or t e applicants$ t is court !elt constrained to grant t e same purel) in t e interest o! Hustice5 T e matter was t en adHourned to /3t Februar) %&/% !or earing5 4n t at da)$ neit er t e o!!icial o! t e de!endantCcounter+claimant nor counsel appeared and no e:planation was !urnis ed to court5 Counsel !or t e applicants applied to proceed e:+parte and e was allowed to do so5 He t en in!ormed court t at e ad alread) !iled a written submission and reGuested court to

consider t e same so t at t e matter is Hust !i:ed !or a ruling5 Court agreed to consider t e same and t e matter was !i:ed !or ruling5 I wis to note wit concern t at as I was preparing t is ruling I came across a document on t e court record purporting to be t e respondentBs submission !iled on %/st Marc %&/%5 I do not know t e basis on w ic it was !iled given t at t is court ad made an order t at t is matter proceeds e:+parte w ic order ad not been reviewed or set aside5 In Misc. Application No. 624 of 2011, M & E Associates v Prestige Investments Lt at page 4 I criticiDed t is casual and unpro!essional manner o! conducting court business b) counsel !or t e de!endant and I still do so more strongl) now5 4! course I disregarded t at submission because it was irregularl) !iled5 T e applicantsB counsel submitted t at t e law on amendments especiall) w en it introduces a counter+claim is ver) strict on !iling and serving o! t e counter claim5 T is law is !ound in 4rder 6 r %3 o! t e C'# w ic provides t at amendments are to be !iled wit in t e time allowed and duplicate served in t e manner provided !or in t e service o! summons5 T e manner provided !or in t e service o! summons is under 4rder 0 r/> and 4rder 2 rules % ? 35 He relied on t e case o! Nile !re"eries Lt v !r#no $%#nga t&a Ne''i !oss (tores )*.( 0+,02006. /200,0 12 *ommercial *o#rt 23 @unreported but on t e Hudiciar) websiteA5 He submitted t at in t at case t e learned Hudge was !aced wit a similar situation and e interpreted t e relevant laws on amendment$ !iling and service o! ,S"Ccounterclaims5 He submitted t at t e gist o! t at case is t at once court as given an order and speci!ied t e date t en bot t e !iling and service o! t e amendment must be e!!ected wit in t e dates speci!ied b) court5 T at is w at 4rder 0 rule /> provides5 Furt er t at t e conseGuence o! not doing t at is provided !or under 4rder 6 rule %25 It provides !or !ailure to amend$ !ile and serve wit in t e time limited !or t at purpose b) t e order unless t ere is e:tension o! time5 He noted t at in t is case t e time as never been e:tended5 Under 4rder 2 rules /$ %$ and 3 @cA t e counterclaim s ould be dismissed wit out notice wit costs to t e 3rd counter+de!endant5 He contended t at t e a!!idavit in repl) s owed dilator) conduct b) t e respondent5 He contended t at in paragrap 3 o! t e a!!idavit o! Mr5 C arles 4wor$ e attributed statements and actions to t e Managing "irector @M"A o! t e respondent w ic i! true indeed s ow dilator) conduct on t e part o! t e respondent and t e advocates5 It states t at e kept going t ere to remind t e advocates to !ile t e amended ,S" and counter claim5 He argued t at t e M" did not even !ile a supplementar) a!!idavit to substantiate w at was stated5 He noted t at generall) paragrap s % and 3 o! t at a!!idavit are admissions o! t e applicantBs case regarding t e time wit in w ic t e amendment was to be !iled and served w ic t e) were all along aware o!5 He contended t at paragrap ; o! t e a!!idavit is a lie because t e deponent averred t at t e amended ,S" was !iled and received in t e court registr) on %&C/&C%&// but e did not even attac a cop) o! t e same5 Furt er t at it is also a lie t at t e same was received in t e registr) on %&t 4ctober %&// because t e pa)ment o! !ees on t e ,S" is dated %;t 4ctober %&// and indeed t e #egistrar o!

t e court con!irms t is on page < o! t e purported amended ,S" w en e con!irms t at it was lodged in t e registr) on t e %;t 4ctober %&//5 He argued t at t e allegation t at it was !iled on %&C/&C%&// is borne o! !raud and backdating as a pleading is never !iled until it is paid !or5 He contended t at Mr5 4wor told a lie w en in paragrap 6 to 0 o! is a!!idavit e relied on earsa) and stated t at t e de!ence was !iled Eagainst all oddsF5 He wondered w at t e odds were because t e court gave ver) speci!ic time5 Furt er t at e also told anot er lie in paragrap /3 o! is a!!idavit w ere e stated t at w atever is stated t erein is true and correct to t e best o! is knowledge$ w en paragrap s 2$ 6 and < are clearl) based on t e earsa) got !rom =atende and paragrap s 0$ >$ /& and // are based on is belie!s and not knowledge5 He submitted t at t ose are lies t at o!!end 4rder /> on a!!idavits5 He re!erred to t e case o! Eric Ti:e:ega v $r, &arensio #egunisa and Ot ers Su;reme Court Civil A;;lication &o, 158.0. w ere .SC =ato at page /3 eld t at1+ In view of the fact that the affidavit in support of this application is riddled with falsehoods and it is a mere hearsay, I find that the application has not been supported by a valid affidavit. That being the position, there is no evidence to establish that the Applicant had sufficient reasons which prevented him from filing on time As regards t e a!!idavit o! t e clerk$ e pointed out t at in paragrap 3 t e deponent stated t at e !iled t e document )et in paragrap ; e again stated t at e was advised to pa) court !ees but did not attac t e alleged assessment t at e was advised to get5 He argued t at even i! t e document was received and stamped b) t e court registr) it was backdated because t ere was simpl) no !iling as no court !ees ad been paid5 He submitted t at t e !iling was done on %;C/&C%&// as per paragrap 6 o! t e a!!idavit o! t e clerk w en t e documents were placed on t e court !ile5 However$ e contended t at given t at service as never been e!!ected in t e time limited b) t e court t ere is no !iling at all5 He submitted t at t e alleged service as stated in paragrap < o! t e clerkBs a!!idavit is not supported b) evidence o! service5 He also re!erred to t e case o! N a#la 4onal vs. 5a66i Na #li A' #l & Anor. Electoral Petition Appeal No. 20&2006$ at pages ;$ 2$ >$ // and /%5 He submitted t at t at case is an aut orit) on t e !act t at a document is not !iled in court until court !ees is paid and once !ees are paid outside time allowed t en t ere is no !iling o! t e document5 T e same decision also states t at a document !iled wit out pa)ment o! !ees is an illegalit) and supersedes all matters o! procedure and must be struck o!! as was done in t at case5 He pointed out t at even w en t e alleged pa)ment was made on %;C/&C%&//$ t ere is still a worse problem in t at a !ee o! s s53$&&&CI was paid !or a counterclaim o! US" 22$<635 He submitted t at t e S s5 3$&&&CI was not t e !ee !or t at counterclaim5 Furt er t at under #ule ; and 'art III o! t e sc edule to t e Hudicature @Court FeesA #ules S5/ /3+/ in a suit @w ic t e counterclaim isA w ere t e amount involved is US "ollars t e counterclaim is !or S s5/6/$</%$<&&CI t e !iling !ees would be S s5%20$</%5< and not S s53$&&&CI5

He invited t is court to adopt t at aut orit) and !ind t at t ere was no !iling at all and t e non+ pa)ment o! appropriate !ees made t e ,S" and counterclaim an illegalit)5 He also invited t is court to !ind t at t e ,S" and counterclaim was !iled on %;t 4ctober %&//$ !our da)s outside t e time allowed b) t e Court5 He t ere!ore pra)ed t at t is Court be pleased to grant t e orders pra)ed !or wit costs5 (e!ore I consider t e merit o! t is application$ I wis to !irst deal wit t e issues raised concerning t e a!!idavits in repl) particularl) t e one sworn b) Mr5 C arles 4wor5 It is alleged t at t at a!!idavit contains bot !alse ood and earsa) and so it s ould be struck out5 Secondl)$ t at t e deponent stated in paragrap /3 t at w atever is stated t erein is true and correct to t e best o! is knowledge w en actuall) t e in!ormation in paragrap s 6 to 0 were got !rom Mr5 =atende *od!re)5 I do not seem to see t e lie t at counsel is re!erring to5 However$ I agree t at Mr5 4wor s ould ave distinguis ed t e paragrap s based on in!ormation !rom t ose based on is knowledge and belie!5 I! e ad acknowledged t e source o! in!ormation t en it would not be earsa)5 (e t at as it ma)$ in t e recent past t e Supreme Court as adopted a more liberal approac to dealing wit de!ective a!!idavits5 T e o!!ending paragrap s can now be sa!el) severed !rom t e a!!idavit and t e rest o! t e paragrap s accepted5 In t e case o! *ol. )4t . !esig7e 8i%%a v M#seveni 9o"eri 8ag#tta & Electoral *ommission )Election Petition No. 1 of 2001. /20010 12(* 3, 4doki (5.5 @C ie! .usticeA in is lead Hudgment stated as !ollowsJ In 4eamation Lt . : 12AN;A *orporation *reameries Lt . an Anot<er *ivil Application No. = of 2001, Motor Mart )1. Lt . v 9ona 8an7omo%i *ivil Appeal No. 6 of 1>>> and9ona 8an7omo%i v Motor Mart )1. Lt . No. , of >,, the Supreme Court adopted a liberal approach to affidavits. In 9ona 8an7omo%i v Motor Mart )1. Lt supra! "ulenga #SC, held that some parts of counsel$s affidavits were false and that those parts were irrelevant to the application and could be ignored. %n a reference to the full Court, it was argued that the impugned affidavit was capable of severance as the single &udge did before arriving at his decision. The full court held that it was unable to interfere with the discretion e'ercised by the single &udge. (rom the authorities I have cited there is a general trend towards ta)ing a liberal approach in dealing with defective affidavits. This is in line with the constitutional directives enacted in Article *+, of the Constitution that the courts should administer substantive &ustice without undue regard to technicalities. -ules of procedure should be used as handmaiden to &ustice but not to defeat it. Meanw ile$in2reen"atc< v Attorne7 2eneral an Anot<er )2003. 1 E.A. ,=, M#?asa @$ eld t at knowledge can be acGuired t roug uman senses like seeing$ earing$ smelling$ tasting or touc ing !ollowed b) understanding and perceiving w at one as sensed5 I am alive to t e !act t at t ere are also aut orities t at adopt a rigid approac to de!ective a!!idavits5 4ne o! suc is t e case o! Eric Ti:e:ega @supraA t at counsel !or t e applicant relied

upon5 Anot er one is (irasi !itaitana an 4 ot<ers v Emman#el 8anan#ra /1>==0 5*! 34 w ere Allen J$ eld t atJ
1. The inconsistencies in an affidavit cannot be ignored however minor, since a sworn

affidavit is not a document to be treated lightly. If it contains obvious falsehood then it all naturally becomes suspect. 2. An application supported by a false affidavit is bound to fail because the applicant in such a case does not go to court with clean hands and tell the truth. .mphasis added!. T at ruling was !ollowed in t e case o! Nat<an 8atam'a v (tep<en 8a'ig7ema /20000 8AL4 =,0 w ere )uso<e (i:uu<a J$ eld t atJ Affidavits are very serious documents. %nce one contains a falsehood in one part, the whole becomes suspect. An application supported by a false affidavit is bound to fail. The applicant has not come to this court with clean hands. The affidavit in support is struc) out. The motion remains unsupported by any )ind of evidence and is therefore valueless.@-mp asis addedA5 As I observed in t e case o! Sam Aniag=ei O:eng & Anor v )TL Real Pro;erties Ltd & Anor> )iscellaneous A;;lication &o, 1?5 o3 .011 2arising out o3 Civil Suit &o, /4 o3 .0106$ t is court is bound to !ollow t e liberal approac adopted b) t e Supreme Court5 In t e circumstances$ I will onl) sever t e o!!ending paragrap s o! Mr5 4worBs a!!idavit and accept t e rest o! t e paragrap s5

Turning to t e merit o! t is application$ its background is t at upon an oral application$ t is court granted leave to t e de!endantCcounter+claimant now respondent to add MCS M ? - Associates Ltd as t e 3rd counter+de!endant to its counter+claim5 An order was t en made t at t e de!endantCcounter+claimant amends its ,S" and counterclaim and serves wit in !i!teen da)s !rom 2t 4ctober %&// w en t e order was made5 From t e a!!idavits on record$ it is clear t at t e de!endantCcounter+claimant did not compl) wit t at order wit in t e prescribed time5 T ere were attempts b) counsel !or t e de!endantCcounter+ claimant to sugar+coat w at appened as stated in t e a!!idavits in repl) but t e bottom line is t at t e order was not complied wit wit in time5 In t at conte:t$ I wis to point out t at t is case is distinguis able !rom t at o! Nile !re"eries Lt @supraA w ere !iling o! t e amended ,S" and counterclaim was done in time but service was not e!!ected5 T e issue was t ere!ore w et er or not !iling ad been completed in t e absence o! service5 T e rules were also discussed in t at conte:t5 In t e instant case t e e:planation o! ow t e clerk broug t t e document to t e court registr) !or !iling on t e last da) and t e same was received and advice made t at !ees be paid$ in m) view$ is stating t e obvious5 -ver) law)er oug t to know t at documents are onl) validl) !iled upon pa)ment o! court !ees5 T ere are man) aut orities to t at e!!ect5 See t e case o! !a'i<#ga

Ainnie v Matsi?o Ainfre , Election Petition Application No. 14 of 2002 w ere t e Court o! Appeal eld t at documents are properl) !iled in court a!ter pa)ment o! court !ees5 See alsoN a#la 4onal @supraA and Pinnacle Pro@ects Ltd v #usiness in )otion Consultants Ltd> )iscellaneous A;;lication &o, 4-. o3 .010 w ere t is court Guoted wit approval t e observation o! %oudie> J in U&TA EA;orts Ltd v Customs *1?B0+ EALR -C5 at page 6;> t atJ I have no doubt whatsoever that both as a matter of practice and also as a matter of law documents cannot validly be filed in the civil registry unless fees have been paid or provided for by a general deposit from the filing advocate from which authority has been given to deduct court fees. In view o! t is settled principle o! law$ t e e:planation on ow e!!orts were made to !ile t e amended ,S" and counterclaim on t e last da) is not acceptable to t is court as it serves no use!ul purpose5 I would ave probabl) been s)mpat etic i! t e e:planation was made b) an unrepresented part) w o does not know t e court procedure5 ConseGuentl)$ I !ind t at t e amended ,S" and counterclaim was !iled on t e %;t 4ctober %&// w en it was lodged at t e court registr) and sealed b) t e #egistrar a!ter t e court !ees were paid5 T e endorsement made on t e %&t 4ctober %&// was t ere!ore irregular since court !ees ad not been paid5 As regards t e e!!ect o! !ailure to compl) wit t e timeline$ I ave addressed m) mind to t e provisions o! 4rder 6 rule %2 o! t e C'# but be!ore I relate it to t is case I wis to point out t at a clear distinction must be made between t e time prescribed b) t e rules and one given b) an order o! court5 , ile t e time prescribed b) t e rules can sometimes be treated as mere tec nicalit) w ic can be ignored in terms o! Article /%6 @%A @eA o! t e Constitution$ depending on w et er it is stated in mandator) terms or not$ t e Court o! Appeal as eld t at a court order must be obe)ed unless set aside or varied5 T is was t e olding in t e case o! Amrit 2o7al v 5aric<an 2o7al & 3 ot<ers )*ivil Application No. 10> of 2004 /200,0 12*A 6 )= A#g#st 200,.5 In t at case$ upon an application b) t e applicant w o was t e success!ul part) in t e Hig Court$ t e respondent w o ad appealed against t e Hudgment and order o! t e Hig Court was ordered b) a Single .ustice o! Appeal to deposit S s5 0&$2%2$2&&CI as securit) !or costs wit in 3& da)s !rom t e date o! er order and in an) case be!ore t e earing date o! t e appeal5 T e appeal ad been !i:ed !or earing on /0t Ma) %&&; and t e ruling was delivered on %>t April %&&;5 T e respondent did not compl) wit in t e prescribed time and did not even appl) !or e:tension o! time5 T e applicant applied to ave t e Notice and Memorandum o! Appeal struck out on t at basis and t eir Lords ips eld t at1+ A court order is a court order. It must be obeyed as ordered unless set aside or varied. It is not a mere technicality that can be ignored. If we allowed court orders to be ignored with impunity, this would destroy the authority of &udicial orders which is the heart of all &udicial systems//////.(rom what we have &ust stated above, we hold a firm view that a court order is not a mere technical rule of procedure that can be simply ignored. In our &urisprudence,

court orders must be respected and complied with. Those who choose to ignore it do so at their own peril5 I am not at all impressed b) t e reasons !or t e de!endantCcounter+claimantBs !ailure to !ile t e amended ,S" and counterclaim in time as stated in t e a!!idavits in repl)5 Surel)$ could t ere ave been power outages !or t e entire period o! !i!teen da)sK -ven i! one were to believe t at$ could counsel not !ind alternative wa)s o! t)ping t e pleadings so as to !ile it in timeL To m) mind t at was s ear ineptitude on t e part o! counsel5 4rdinaril) I would ave been inclined to out rig tl) grant t is application and strike out t e amended ,S" and counterclaim t at was clearl) !iled out o! time5 However$ in t e interest o! Hustice I will consider w at was stated in paragrap s /& and // o! Mr5 4worBs a!!idavit be!ore I make m) !inal decision on t is application5 Mr5 4wor stated in t ose paragrap s o! is a!!idavit t at t e !ailure to !ile t e amended ,S" and counterclaim was occasioned b) !ailure o! t eir law !irm and so t e respondent s ould not be penaliDed because e ad no control over t eir action5 He !urt er stated t at t e Hustice o! t is case reGuires t at t is dispute be investigated and decided on merit5 It is now a settled principle o! law in our Hurisdiction t at mistakes o! counsel owever negligent s ould not be visited on a litigant5 In !anco Ara'e Espanol vs. !an? of 1gan a (**A No. ,&1>>, /1>>=-20010 1*L 1$Oder> JSC 2RIP6> w ile giving t e background to t e development o! t is principle stated t at1+ The 0uestion of whether an oversight, 1mista)e, negligence, or error, as the case may be, on the part of counsel should be visited on a party the counsel represents and whether it constitutes sufficient reason or sufficient cause &ustifying sufficient remedies from courts has been discussed by courts in numerous authorities. Those authorities deal with different circumstances2 and may relate to e'tension of time for doing a particular act, fre0uently in cases where time has run out2 some of them concern setting aside an e' parte &udgment or reinstating a dismissed suit such as in the present case. 3ut they have a common feature whether a party shall, or shall not, be permanently deprived of the right of putting forward a bona fide claim or defence by reason of the default of his professional advisor or advisor$s cler). As seen !rom t at background$ t e rationale be ind t at principle is t at a litigant s ould not be permanentl) deprived o! t e rig t o! putting !orward a bona !ide claim or de!ence b) reason o! t e de!ault o! is pro!essional advisor or advisorBs clerk5 T is principle was t ere!ore establis ed in t e interest o! substantive Hustice5 T ere are man) ot er aut orities in Uganda w ere t is principle was stated wit approval5 T e) includeD "a@@i &urdin )atovu vs, #en (iEanu<a SCCA &o, 1. o3 1??1 @UnreportedA$ Ale:anderJo O<ello vs, (a=ondo & Co, Advocates SCCA &o, 1 o3 1??B @UnreportedA andAndreE#aman=a v S ams erali Fa=e CAC A;;lication &o, B0 o3 .001> w ereMukasa+

=ikon)ogo$ "C. @as s e t en wasA observed t at mistakes$ !aults$ lapses or dilator) conduct o! counsel s ould not be visited on t e litigant5 Appl)ing t at principle to t e instant case$ t e !irm o! MCS Ntende$ 4wor ? Co5 Advocates was instructed to represent t e respondentCde!endantCcounter+claimant in t is matter5 As a client it does not ave control on ow t e instructions are carried out because t e law)ers as legal e:pertsCpro!essional advisors are presumed to know t e law$ procedures and practice o! court5 T e respondentCde!endantCcounter+claimant cannot t ere!ore be !aulted !or t e mistakes o! its counsel5 T is court as been reGuested to strike out t e amended ,S" t at was !iled out o! time so t at t e matter proceeds in de!ault o! !iling a ,S"5 T is$ in m) view$ would amount to visiting t e mistake o! counsel on a litigant w ic is contrar) to t e above stated principle and t e rationale be ind it5 I am also o! t e view t at striking t e amended ,S" and allowing t e matter to proceed in de!ault o! !iling a ,S" will not serve t e best interest o! Hustice and e:pedienc) since t e respondent will still be at libert) to !ile ot er applications to seek redress5 It would t ere!ore instead Hust lead to multiplicit) o! suits a misc ie! t at section 33 o! t e .udicature Act seeks to address5 I ave also looked at t e nature o! dispute in t e main suit and I believe it can be best resolved i! all t e concerned parties are broug t on board5 In an) case$ counsel !or t e applicant did not address me on t e preHudice t at would be occasioned to is client i! t is application is not allowed5 I do not personall) see an) preHudice t at would be occasioned to t e applicantCplainti!! i! t e time !or !iling t e amended ,S" is e:tended so as to validate t e !iling o! t is pleading w ic is alread) on court record5 In an) case$ t e provisions o! 4rder 6 rule %2 o! t e C'#$ in m) view$ permit e:tension o! time b) court a!ter t e time allowed as e:pired5 In t e circumstances$ I am inclined on m) own motion to e:ercise t e power given to t is court b) section >0 o! t e Civil 'rocedure Act and section 33 o! t e .udicature Act to enlarge t e time !or !iling t e amended ,S"5 ConseGuentl)$ t e amended ,S" and counterclaim t at was !iled on %;t 4ctober %&// is validated and I order t at it s ould be served on t e plainti!!Ccounter+ de!endants wit in seven da)s !rom toda)5 4n t e issue o! t e amount o! !ees paid$ I order t at t e correct amount be paid in accordance wit t e rules t at govern pa)ments o! court !ees5 Costs o! t is application are awarded to t e applicants and it s all be paid b) counsel !or t e respondent personall) because is !ailure to act in time !or no Husti!iable reason gave rise to t is application5 T e costs s all be paid be!ore t e sc eduling con!erence w ic ad alread) been !i:ed !or %2t April %&/%5 I so order5 "ated t is /3t da) o! April %&/% Hellen 4bura JU'%E

#uling delivered in c ambers at 35&& pm in t e presence o! Mr5 Simon Tendo =abenge5 T ere was no representation !or t e respondent as t e application proceeded e:+parte5

JU'%E 1480C8.01.

Commercial Court Civil Law