In the case of Ketty Najanja V Yafesi Wamala and 2 others Misc App No.001 of 2019;

The application sought to reinstate a suit that had been dismissed under section 98 of Civil Procedure Act due to absence of counsel for both the Defendant and Plaintiff at the time of the hearing. The Applicant instructed new lawyers who were now ready to prosecute the matter. They needed the dismissal order to be set aside under sections 98 of the Civil Procedure Act and 33 Judicature Act.

For the dismissal order to be set aside, it must be proved that the applicant was prevented from prosecuting his case by sufficient cause. It was discussed that a mistake by an advocate though negligent maybe accepted as sufficient cause.

The judgment cited the case of Captian Phillip Ongom V Catherine Nyero Iwota SCCA No.14 2001 which emphasizes that a litigant’s right to a fair hearing in the determination of civil rights and obligations is enshrined in Article 28 of the Constitution and should not be defeated on the ground of his or her lawyer’s mistakes. Court set aside the order and emphasized that the Applicant should not be condemned for counsel’s mistake and negligence given that she had duly instructed her lawyers and it was the lawyers that did not enter appearance. The case was then to be heard on its merits.