Wakilii

Kalemesa v Kaggwa and 7 Others (Miscellaneous Application 776 of 2023)

High Court · [2024] UGHCLD 145 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review and setting aside of an order abating the main suit for failure to take out summons for directions within the statutory time limit
Decision
Application dismissed; abatement of the main suit stands; applicant may file a fresh suit subject to the law of limitation

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the word 'shall' in Order XIA rule 1(2) of the Civil Procedure (Amendment) Rules is mandatory, requiring plaintiffs to extract summons for directions within 28 days of the last reply, unless exceptional circumstances under sub-rule (4) apply. Where a plaintiff fails to comply without proving exceptional circumstances, the suit abates and cannot be revived by way of review. The application for review was dismissed with no error apparent on the face of the record.

Outcome

Application dismissed; abatement of the main suit stands; applicant may file a fresh suit subject to the law of limitation

Facts

The applicant filed Civil Suit No. 389 of 2022 on 11 May 2022 seeking declarations concerning land comprised in Kyadondo Block 246. All defendants filed defences between 27 May and 7 June 2022. The applicant also filed an application for a temporary injunction which was dismissed on 26 October 2022. On 27 March 2023, the court abated the main suit for failure to take out summons for directions within 28 days of the last reply as required by Order XIA rule 1(2) of the Civil Procedure (Amendment) Rules 2019. The applicant then brought this application seeking to review and set aside the abatement order, contending he was not summoned to show cause and that the interlocutory application justified the delay.

Issues

  1. Whether the court can review its decision to abate HCCS No. 389 of 2022 for failure to take out summons for directions within the statutory time limit.
  2. Whether the word 'shall' in Order XIA rule 1(2) of the Civil Procedure (Amendment) Rules is mandatory or discretionary.
  3. Whether the exceptional circumstances under Order XIA rule 1(4) apply to excuse the applicant's failure to extract summons for directions within 28 days.

Orders

  • The application for review is dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

Civil Procedure — Summons for Directions — Mandatory Time Limit for Extraction
Under Order XIA rule 1(2) of the Civil Procedure (Amendment) Rules 2019, the word 'shall' imposes a mandatory duty on a plaintiff to take out summons for directions within 28 days from the date of the last reply or rejoinder, unless exceptional circumstances under Order XIA rule 1(4) apply.
Civil Procedure — Statutory Interpretation — 'Shall' as Mandatory Command
The word 'shall' in a statute ordinarily connotes a mandatory command and is used in a directory sense only in exceptional circumstances, namely where giving the provision a mandatory interpretation would lead to absurdity, inconsistency with the Constitution or the intention of the Legislature, or cause a miscarriage of justice.
Civil Procedure — Abatement of Suit — Failure to Extract Summons for Directions
Where a plaintiff does not take out summons for directions in accordance with Order XIA rule 1(2) of the Civil Procedure (Amendment) Rules and the exceptions under rule 1(4) do not apply, the suit shall abate under Order XIA rule 1(6).
Civil Procedure — Review — Error Apparent on the Face of the Record
An error apparent on the face of the record is one that does not require any extraneous matter to show its incorrectness and must be so manifest and clear that no court would permit it to remain on record. An application for review cannot succeed where the court's order was procedurally correct and the plaintiff has not proved exceptional circumstances.
Civil Procedure — Abatement — Remedy After Abatement
Where a suit has abated for failure to extract summons for directions, the proper remedy is for the plaintiff to file a fresh suit subject to the law of limitation under Order XIA rule 1(7). An abated suit cannot be revived by way of an application for review.

Legislation cited (10)

Cases cited (6)

  • 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)
  • Sebalu v Njuba and The Electoral Commission (Supreme Court Election Petition Appeal No. 26 of 2007)

Full judgment

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

Kalemesa_v_Kaggwa_and_7_Others_(Miscellaneous_Application_776_of_2023)_[2024]_UGHCLD_145_(24_May_2024)
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.