Wakilii

Kasande v Editor Red Pepper & Anor (Misc. Application No. 35 of 2013)

High Court · [2013] UGHCCD 124 · 2013 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application to strike out written statement of defence for alleged late service
Decision
Application dismissed; main suit to proceed to hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that filing of a written statement of defence is complete once it is filed and sealed by court under Order 8 rule 1 and Order 9 rule 1 CPR. Order 8 rule 19 CPR does not prescribe a time limit for service of a defence that does not contain a counterclaim on the opposite party. Service is distinct from filing, and filing is complete upon sealing by court. The application to strike out the defence for late service was dismissed.

Outcome

Application dismissed; main suit to proceed to hearing

Facts

The applicant filed HCCS No. 296 of 2010. The defendant filed a written statement of defence on 17 December 2010, within time, but did not serve it on the applicant's counsel until 13 September 2012. The applicant brought an interlocutory application seeking to strike out the defence for late service, enter interlocutory judgment, and fix the suit for formal proof of damages. The respondent opposed the application, contending that there is no legal requirement to serve a written statement of defence within a specific time where it contains no counterclaim, and that the defence was properly filed and sealed by court. Both parties subsequently generated a joint scheduling memorandum.

Issues

  1. Whether the written statement of defence filed on 17 December 2010 but served on applicant's counsel on 13 September 2012 should be struck off for late service.
  2. Whether filing of a written statement of defence is complete only upon service on the opposite party.
  3. Whether there is a mandatory time limit for service of a written statement of defence that does not contain a counterclaim.

Orders

  • Application dismissed.
  • Costs in the cause.
  • Hearing to proceed inter partes.

Rules and key headnotes

Civil Procedure — Filing of Defence — Distinction Between Filing and Service
Filing of a written statement of defence is complete once it is filed in court and sealed under Order 8 rule 1 and Order 9 rule 1 of the Civil Procedure Rules, irrespective of whether it has been served on the plaintiff.
Civil Procedure — Service of Defence — Time Limits
Order 8 rule 19 of the Civil Procedure Rules does not prescribe a time limit within which a written statement of defence that does not contain a counterclaim must be served on the opposite party.
Civil Procedure — Counterclaim — Service Requirements
Where a written statement of defence contains a counterclaim under Order 8 rule 8 CPR, both filing and service must be completed within the time allowed to file the defence. Order 8 rule 11 CPR prescribes that a reply to a counterclaim must be filed and served within 15 days.
Civil Procedure — Practice and Procedure — Vigilance of Advocates
Modern legal practice demands that litigants and their advocates be vigilant in following up their cases for speedy delivery of justice. Resorting to procedural technicalities at the expense of substantive justice should be discouraged.

Legislation cited (9)

  • Civil Procedure Act s.98
  • Civil Procedure Rules O.8 r.1
  • Civil Procedure Rules O.8 r.8
  • Civil Procedure Rules O.8 r.11
  • Civil Procedure Rules O.8 r.19
  • Civil Procedure Rules O.9 r.1
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.52 r.2
  • Civil Procedure Rules O.52 r.3

Cases cited (5)

  • Abdu Salongo v Kasese Town Council [1991] HCB 163
  • Mwesigwa Geofrey Phillip v Standard Chartered Bank of Uganda (Misc. Application No. 200 of 2011)
  • Nile Breweries Ltd v Bruno Ozunga T/A Nebbi Boss Stores (HCCS No. 0580 of 2006)
  • Mark Graves v Balton (Misc. Application No. 0158 of 2008)
  • Simon Tendo Kabenge v Barclays Bank (U) Ltd & Phillip Dandee (Misc. Application No. 263 of 2010)

Full judgment

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

Kasande v Editor Red Pepper & Anor (Misc. Application No. 35 of 2013) [2013] UGHCCD 124 (23 September 2013)
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.