Wakilii

Kasaliko v Energo Project Limited and Another (Civil Suit 26 of 2017)

High Court · [2022] UGHCCD 319 · 2022 Preliminary Objection Upheld — Plaint Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objection in first instance civil suit for negligence and damages
Decision
Plaint struck out—suit dismissed as incompetent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court sustained a preliminary objection that the plaint was bad in law because the defendant named in the suit was a non-existent entity. The plaintiff sued Energo Projekt Ltd, which did not exist—the company had changed its name to Energoprokekt Niskogradnja joint stock company in 2007. The defect was not a mere misnomer curable by amendment because the plaintiff failed to conduct due diligence by searching the company registry. The plaint was struck out.

Outcome

Plaint struck out—suit dismissed as incompetent

Facts

The plaintiff alleged that the defendant, a road construction contractor, acted negligently on 8 November 2015 when its employees cleared earth forming a protective barrier between Mpigi-Kanoni-Ssembabule Road and the plaintiff's land. The plaintiff claimed this caused water runoff to sweep away his fish ponds containing over 20,000 fish. The defendant denied negligence and stated it had worked on a gazetted road reserve. At hearing, the defendant raised a preliminary objection that the plaintiff had sued a non-existent entity—the company named Energo Projekt Ltd did not exist. A certificate of registration showed the company had changed its name to Energoprokekt Niskogradnja joint stock company in March 2007.

Issues

  1. Whether the plaint is bad in law for suing a non-existent entity as defendant.
  2. Whether the defect can be cured by amendment as a misnomer under Order 30 Rule 10 and Order 1 Rule 10 of the Civil Procedure Rules.

Orders

  • Preliminary objection sustained.
  • Plaint struck out as there is no defendant to the suit.
  • No order as to costs—a non-existent party cannot be paid costs.

Rules and key headnotes

Civil Procedure — Parties — Non-existent Defendant — Effect on Plaint
A suit brought against a non-existent entity is a nullity, incompetent, and bad in law. The plaint must be struck out where the plaintiff has sued a defendant that does not legally exist.
Civil Procedure — Amendment of Pleadings — Misnomer — Substitution of Non-existent Party
Where the defendant named in the plaint is a non-existent entity, the defect cannot be cured by amendment as a misnomer under Order 1 Rule 10 or Order 30 Rule 10 of the Civil Procedure Rules. A misnomer is rectifiable only where there was a bona fide mistake in naming a party that actually exists, not where no such party exists at all.
Civil Procedure — Due Diligence — Company Registry Search
A plaintiff bringing suit against a corporate defendant must conduct due diligence, including a company registry search, to confirm the proper legal identity and capacity of the defendant before instituting proceedings. Failure to do so renders the suit incompetent where the named defendant does not exist.
Civil Procedure — Costs — Non-existent Party
Where a suit is struck out because the defendant is a non-existent entity, the court will make no order as to costs because a non-existent party cannot be awarded or pay costs.

Legislation cited (6)

Cases cited (6)

  • The Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa (Miscellaneous Applications No. 576 of 2006 and 655 of 2005)
  • Bagamuhunda Vincent v Uganda Electricity Board (HCT-00-CV-0400 of 2007)
  • Kyaninga Royal Cottages Limited v Kyaninga Lodge Limited (Miscellaneous Application No. 551 of 2018)
  • Attorney General v Sanyu Television (1998)
  • The Fort Hall Bakery Supply Co v Fredrick Muigai Wangoe [1959] EA 474
  • Benjamin Ssajjabi v Timber Manufacturers Limited [1978] HCB 202

Full judgment

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

Kasaliko v Energo Project Limited and Another (Civil Suit 26 of 2017) [2022] UGHCCD 319 (14 November 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.