Wakilii

Amritlal Metha Kiunjlata and Another v Sakina Waziri and 4 Others (Civil Suit 118 of 2017)

High Court · [2023] UGHCCD 137 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections raised during civil suit proceedings
Decision
Suit to proceed exparte against the 1st, 2nd, 3rd and 4th Defendants; 1st Defendant struck off the record as deceased

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The court struck off the 1st, 2nd and 3rd Defendants' Written Statement of Defence for failure to comply with a prior court order requiring amendments within a reasonable time, and allowed the plaintiffs to proceed exparte against them. The 1st Defendant was struck off the court record as the suit was filed after her death in 2005, rendering it a nullity against her. The court allowed the suit to proceed exparte against the 4th Defendant who failed to file a defence.

Outcome

Suit to proceed exparte against the 1st, 2nd, 3rd and 4th Defendants; 1st Defendant struck off the record as deceased

Facts

The plaintiffs filed Civil Suit No. 118 of 2017 against five defendants. On 18 June 2020, Justice Eva Luswata ruled that the 1st, 2nd and 3rd Defendants' Written Statement of Defence was not drafted in accordance with the law and ordered an amended compliant defence to be filed. By February 2023, no compliant defence had been filed. During the hearing on 22 February 2023, the plaintiffs raised preliminary objections seeking to strike off the non-compliant defence and to proceed exparte against the 4th Defendant who had never filed a defence. The defendants' counsel raised a preliminary objection that the 1st Defendant had died in 2005, before the suit was instituted in 2017. The defendants' counsel sought leave to enlarge time to file the required amendments and for the 4th Defendant to file a defence, citing the death of the previous advocate Mayinja Tebusweke in June 2021.

Issues

  1. Whether the 1st, 2nd and 3rd Defendants' Written Statement of Defence should be struck off in regard to the order in Justice Eva Luswata's Ruling of 18 June 2020.
  2. Whether the suit should be struck off the Court record as against the 1st Defendant and whether the 1st Defendant can be substituted with a legal representative.
  3. Whether the suit should proceed exparte as against the 4th Defendant.

Orders

  • The Written Statement of Defence in respect of the 1st, 2nd and 3rd Defendants is struck off the court record with costs.
  • The Plaintiff is allowed to proceed exparte against the 1st, 2nd and 3rd Defendants.
  • The 1st Defendant is struck off the court record.
  • The matter will proceed against the rest of the Defendants.
  • Counsel Kabiswa's prayers for leave to enlarge time for the 4th Defendant to file a defence are denied.
  • The Plaintiff is allowed to proceed exparte against the 4th Defendant.

Rules and key headnotes

Civil Procedure — Pleadings — Non-Compliance with Court Orders — Striking Off Defence
Where a court orders a party to file an amended pleading in compliance with the law and the party fails to do so within a reasonable time without seeking leave to extend time, the court may strike off the non-compliant pleading and allow the matter to proceed exparte.
Civil Procedure — Extension of Time — Good Cause — Advocate's Negligence
For an application for extension of time to be allowed, the applicant must show good cause. Instructions to a partnership of lawyers go to the firm and not to individual advocates, and the death of one partner does not excuse the firm's failure to comply with court orders for nearly two years.
Civil Procedure — Parties — Suit Against Deceased Person — Nullity
A suit cannot be sustained against a person who is dead. Where a suit is commenced against a dead person, such a suit is a nullity and incurably defective, and the deceased party must be struck off the court record.
Civil Procedure — Substitution of Parties — Suit Filed After Death
Substitution of parties under Order 24 of the Civil Procedure Rules only applies when a suit is instituted during the lifetime of a party, not after the death of the party. Where a suit is instituted in the name of a non-existent party, substitution cannot arise as the suit is a nullity ab initio.
Civil Procedure — Advocates — Notice of Instructions — Professional Conduct
No advocate shall act for any person unless he or she has received instructions from the person or his or her authorized agent. The onus is on the advocate so instructed to take steps to make it known to all concerned that he or she has been duly instructed by filing a Notice of Instructions.

Legislation cited (12)

Cases cited (5)

  • Tight Security Ltd v Chartis Uganda Insurance Company Limited and Another (H.C. Misc. Application No. 8 of 2014)
  • Uganda v Patricia Ojangole (Criminal Case No. 1 of 2014)
  • Batemuka v Anywa (1977) HCB 77
  • Babubhai Dhanji Pathak v Zainab Mrekwe (1964) EA 24
  • Okodoi George and Obwaret Vincent v Okello Opaire Sam (HCMA No. 0143 of 2016)

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Amritlal Metha Kiunjlata and Another v Sakina Waziri and 4 Others (Civil Suit 118 of 2017) [2023] UGHCCD 137 (19 April 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.