Wakilii

Kalemesa Samuel Wilson v Kaggwa Christopher Chris and Others (Miscellaneous Application No. 776 of 2023)

High Court · [2023] UGHCLD 467 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of order abating civil suit for failure to take out summons for directions
Decision
Application for review dismissed; main suit remains abated; applicant may file a fresh suit subject to limitation

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

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 held that an abated civil suit cannot be resurrected by way of an application for review. The word 'shall' in Order XIA rule 1(2) of the Civil Procedure (Amendment) Rules 2019, requiring a plaintiff to take out summons for directions within 28 days from the last reply, is mandatory unless exceptional circumstances under sub-rule 1(4) apply. The applicant failed to prove any exceptional circumstances. The proper remedy where a suit has abated is to file a fresh suit subject to the law of limitation. The application for review was dismissed.

Outcome

Application for review dismissed; main suit remains abated; applicant may file a fresh suit subject to limitation

Facts

The plaintiff filed HCCS No. 389 of 2022 on 11 May 2022 seeking recovery of land. All defendants filed their defences between 27 May and 7 June 2022. The plaintiff also filed an application for temporary injunction which was dismissed on 26 October 2022. The plaintiff failed to take out summons for directions within 28 days from the last reply as required by Order XIA rule 1(2) of the Civil Procedure (Amendment) Rules 2019. On 24 March 2023, counsel for the 3rd defendant wrote to court requesting abatement. On 27 March 2023, the court abated the suit for failure to take out summons for directions. The applicant then filed this application on 20 April 2023 seeking review and setting aside of the abatement order, arguing he was denied a fair hearing and that the requirement was discretionary, not mandatory. The applicant had belatedly attempted to file summons for directions on 19 January 2023, well beyond the 28-day deadline.

Issues

  1. Whether the court can review its decision to abate HCCS 389 of 2022 and set aside the same.
  2. Whether the applicant was denied a fair hearing in relation to the summons for directions before the abatement order was made.
  3. Whether the word 'shall' in Order XIA rule 1(2) of the Civil Procedure (Amendment) Rules 2019 is mandatory or discretionary.
  4. Whether exceptional circumstances existed to prevent abatement under Order XIA rule 1(4) of the Civil Procedure (Amendment) Rules 2019.
  5. Whether an abated suit can be resurrected by way of an application for review.

Orders

  • Application dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

Civil Procedure — Summons for Directions — Mandatory Time Limits
Under Order XIA rule 1(2) of the Civil Procedure (Amendment) Rules 2019, a plaintiff shall take out summons for directions within 28 days from the date of the last reply or rejoinder, and the use of the word 'shall' creates a mandatory obligation rather than a discretionary one, failure of which results in abatement under Order XIA rule 1(6).
Civil Procedure — Abatement — Remedy After Abatement
An abated civil suit cannot be resurrected or reinstated by way of an application for review; the proper and only remedy available to a plaintiff whose suit has abated for failure to take out summons for directions is to file a fresh suit subject to the law of limitation as provided under Order XIA rule 1(7) of the Civil Procedure (Amendment) Rules 2019.
Civil Procedure — Review of Court Orders — Grounds for Review
An application for review under section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules may be granted on three grounds: discovery of new and important matter or evidence which after due diligence was not within the applicant's knowledge or could not be produced at trial; some mistake or error apparent on the face of the record; or any other sufficient reason analogous to the first two grounds.
Civil Procedure — Statutory Interpretation — Mandatory Versus Directory Provisions
Ordinarily, the word 'shall' in statutory provisions is used to connote a mandatory command while 'may' is permissive; the word 'shall' is interpreted as directory only in exceptional circumstances where giving it a mandatory interpretation would lead to absurdity, inconsistency with the Constitution or legislative intention, or cause a miscarriage of justice.
Civil Procedure — Summons for Directions — Exceptional Circumstances
The exceptions to the mandatory requirement to take out summons for directions within 28 days under Order XIA rule 1(2) are limited to the five circumstances expressly enumerated in Order XIA rule 1(4): applications for default judgment, applications for determination on points of law, orders for taking accounts, applications for transfer to another division or court, and referrals to official referees or arbitrators.

Legislation cited (16)

Cases cited (7)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors (1969) 1 EA 696
  • Re Nakivubo Chemists (U) Limited (1979) HCB 12
  • Kanyabwera v Tumwebaze (Supreme Court Civil Appeal No. 6 of 2004)
  • Waiswa v Army for Africa Limited and Others (HCCS No. 127 of 2020)
  • Serugo v Swangz Avenue Limited (HCCA No. 39 of 2021)
  • Seruwu v Swangz Avenue Limited (HCCA No. 39 of 2021)
  • Sebalu v Njuba and The Electoral Commission (Supreme Court Election Petition Appeal No. 26 of 2007)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

↓ Download PDF

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

Kalemesa_Samuel_Wilson_v_Kaggwa_Christopher_Chris_and_Others_(Miscellaneous_Application_No._776_of_2023)_[2023]_UGHCLD_467_(20_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.