Wakilii

Byenkya v Lemi and 4 Others (Miscellaneous Application No. 69 of 2021)

High Court · [2022] UGHCCD 144 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out Written Statement of Defence for being filed out of time and for offending pleading rules, arising from Civil Suit No. 046 of 2015
Decision
Application dismissed; main suit to proceed to trial on the merits

Observed later treatment

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Holding

The court held that the affidavit of service was defective for failing to record the name of the identifying person and for not showing personal service on all defendants, rendering service ineffective. However, since both parties had proceeded with mediation and scheduling, it was too late and too technical to raise service issues. The Written Statement of Defence, though filed late, was filed because the defendants had not been properly served and only learned of the suit when threatened with eviction. The defence sufficiently answered the plaintiff's claim and was neither vague nor evasive. The application to strike out the defence was dismissed.

Outcome

Application dismissed; main suit to proceed to trial on the merits

Facts

On 1 September 2015, the applicant filed Civil Suit No. 046 of 2015 seeking declarations that the suit land constituted the estate of his late mother and that the respondents were trespassers. On 14 October 2015, the respondents filed a joint Written Statement of Defence denying the claim and asserting they were tenants of one Bashir Ally. The applicant alleged service of summons on 22 September 2015, but the affidavit of service filed on 11 November 2015 did not name the identifying witness and did not show service on all defendants. The respondents contended they only learned of the suit on 13 October 2015 when the applicant threatened eviction. Both parties proceeded through mediation and scheduling. On 27 July 2021, the applicant filed this application to strike out the defence for being filed out of time and for offending pleading rules.

Issues

  1. Whether there was effective service of the summons to file a defence upon the defendants/respondents.
  2. Whether the Written Statement of Defence was filed outside the timelines provided by law without leave of court.
  3. Whether the Written Statement of Defence filed by the defendants/respondents offended Order 6 rules 8, 10, 30 and Order 8 rule 3 of the Civil Procedure Rules.

Orders

  • Application dismissed.
  • Preliminary objections overruled.
  • Costs awarded to the respondents.
  • The suit to proceed on its merits.

Rules and key headnotes

Civil Procedure — Service of Process — Affidavit of Service — Mandatory Requirements
An affidavit of service must comply with Order 5 rule 16 of the Civil Procedure Rules by stating the time and manner of service and the name and address of the person identifying the person served and witnessing delivery or tender of summons. Failure to record the name of the identifying person renders the affidavit of service incurably defective.
Civil Procedure — Service of Process — Multiple Defendants — Personal Service Required
Where there are multiple defendants, service of summons must be made on each defendant in person unless a defendant has an agent empowered to accept service. Service on one or two defendants does not constitute effective service on all defendants in the absence of agency.
Civil Procedure — Defective Service — Effect of Filing Defence — Waiver
The filing of a Written Statement of Defence does not constitute a waiver of the right to challenge irregularity in service of summons. A defendant who files a defence despite defective service does not thereby admit effective service.
Civil Procedure — Striking Out Pleadings — Delay and Abuse of Process
Where both parties have proceeded with the court process including mediation and scheduling despite irregularities in service and timing of pleadings, it is too late and too technical to raise issues of service or late filing after substantial progress has been made. Courts should prevent abuse of process and ensure disputes are resolved on their merits.
Civil Procedure — Pleadings — Sufficiency of Defence — Specific Denial
A Written Statement of Defence is sufficient if it specifically admits or denies the material allegations in the plaint and answers the points of substance. A defence that specifically denies the plaintiff's claim and states the defendant's case is neither vague, evasive, nor general.

Legislation cited (22)

  • Civil Procedure Act s.98
  • Civil Procedure Rules O.5 r.9
  • Civil Procedure Rules O.5 r.10
  • Civil Procedure Rules O.5 r.16
  • Civil Procedure Rules O.6 r.8
  • Civil Procedure Rules O.6 r.10
  • Civil Procedure Rules O.6 r.28
  • Civil Procedure Rules O.6 r.29
  • Civil Procedure Rules O.6 r.30
  • Civil Procedure Rules O.8 r.1(1)
  • Civil Procedure Rules O.8 r.1(2)
  • Civil Procedure Rules O.8 r.3
  • Civil Procedure Rules O.9 r.2
  • Civil Procedure Rules O.9 r.8
  • Civil Procedure Rules O.9 r.10
  • Civil Procedure Rules O.9 r.11(2)
  • Civil Procedure Rules O.12 r.3
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.52 r.2
  • Civil Procedure Rules O.1 r.3
  • Civil Procedure Rules O.1 r.10(2)
  • Judicature Act s.33

Cases cited (11)

Full judgment

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Byenkya v Lemi and 4 Others (Miscellaneous Application No. 69 of 2021) [2022] UGHCCD 144 (9 September 2022)
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.