Wakilii

Kasozi Joseph & Ors v UMEME (U) Ltd (HCCS 188 of 2010)

High Court · [2011] UGCOMMC 91 · 2011 Preliminary Objection Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection to representative order in first instance civil suit for breach of contract and overcharging
Decision
Unnamed plaintiffs struck out; suit to proceed with four named plaintiffs only; suit consolidated with HCCS No. 24 of 2010

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that while the representative order itself was properly granted, the subsequent notice by public advertisement failed to comply with Order 1 rule 8 of the Civil Procedure Rules because it did not list the names of the intended plaintiffs. The court struck out all unnamed plaintiffs (stated to number 50,000 or 19,427), leaving only the four named plaintiffs. The suit was consolidated with a parallel suit filed by the third plaintiff to avoid multiplicity of proceedings and contradictory judgments. The preliminary objection procedure was proper as the defendant had no standing to appeal the ex parte representative order.

Outcome

Unnamed plaintiffs struck out; suit to proceed with four named plaintiffs only; suit consolidated with HCCS No. 24 of 2010

Facts

Four named plaintiffs sought to bring a representative action on behalf of over 50,000 electricity consumers against UMEME (U) Ltd for breach of contract, overcharging, and damages arising from allegedly faulty meters and overbilling. The Registrar granted a representative order on 20 April 2010. The plaintiffs' counsel represented to the Registrar that there was an attached list of all intended parties exceeding 50,000, but the actual annexture contained only 19,427 names. A notice was published in a newspaper without listing any names of intended plaintiffs, referring generally to over 50,000 individuals and companies and to 19,427 persons whose names had appeared in a separate debt demand notice in a newspaper six months earlier. The defendant filed a preliminary objection challenging the representative order and the propriety of the suit on grounds of non-compliance with notice requirements, lack of same interest, and duplication with another suit filed by one of the plaintiffs.

Issues

  1. Whether the representative order granted by the Registrar was proper in the absence of a complete list of intended plaintiffs attached to the application.
  2. Whether the notice published in the newspaper satisfied the requirements of Order 1 rule 8 of the Civil Procedure Rules without listing the names of the intended plaintiffs.
  3. Whether the plaintiffs shared the same interest sufficient to sustain a representative action given the nature of the remedies sought.
  4. Whether the suit should be stayed or consolidated under section 6 of the Civil Procedure Act due to a parallel suit filed by one of the plaintiffs.
  5. Whether the preliminary objection was the proper procedure or whether an appeal against the representative order was required.

Orders

  • The unnamed plaintiffs who are stated to number 50,000 and/or 19,427 be and are hereby struck out from this suit.
  • The aspect of the claim by Mr. Marcellinus Idumu be withdrawn from this suit.
  • This suit, that is, HCCS No. 188 of 2010 be consolidated with HCCS No. 24 of 2010.
  • Costs of this Preliminary Objection be in the cause.

Rules and key headnotes

Representative Actions — Notice Requirements — Service by Advertisement
Order 1 rule 8 of the Civil Procedure Rules is mandatory and requires that notice of institution of a representative suit be given to all persons on whose behalf the suit is brought either by personal service or by public advertisement as directed by the court. For notice by advertisement to be effective, it must list the names of the intended plaintiffs so that each can determine whether to participate or opt out. A blanket notice that does not name any specific person does not amount to proper service for purposes of enabling persons to apply to be made parties to the suit.
Representative Actions — Application for Representative Order — Listing of Parties
At the application stage for a representative order, failure to attach a complete list of all intended plaintiffs to the application, while not good practice, is not fatal and does not render the order granted by the Registrar improper. It is not necessary to give particulars in the application of the number of persons having the same interest in the suit.
Representative Actions — Same Interest Requirement — Nature of Remedies
While plaintiffs who are all consumers of electricity supplied by the same defendant may have the same interest as a class, the nature of remedies sought must be capable of determination in a representative capacity. Where remedies such as damages for mental suffering require peculiar evidence from each individual plaintiff, the case may not be appropriate for a representative action notwithstanding the common interest.
Preliminary Objections — Procedure — Appeals from Ex Parte Orders
A defendant who was not a party to an ex parte application for a representative order and was never meant to be a party to it cannot appeal against that order. The defendant obtains locus to challenge the representative order only when the main suit is filed, and may do so by way of a preliminary objection at the early stages of the suit. It is not necessary to first appeal the representative order before raising a preliminary objection.
Consolidation of Suits — Section 6 Civil Procedure Act — Forum Shopping
Where a plaintiff has filed a separate suit on substantially the same issues against the same defendant and subsequently joins as a representative plaintiff in another suit covering those same issues, the court may in exercise of its inherent powers under section 98 of the Civil Procedure Act, section 33 of the Judicature Act, and Order 11 rule 1 of the Civil Procedure Rules consolidate the two suits to avoid multiplicity of proceedings, forum shopping, and the risk of contradictory judgments.

Legislation cited (11)

Cases cited (11)

  • Thomas Okumu v B.A.T & Mastermind Tobacco (HCCS No. 465 of 2000)
  • Dr. James Rwanyarare & Another v Attorney General (Constitutional Petition No. 11 of 1997)
  • Ibrahim Buwembo & Others v UTODA Ltd (HCCS No. 664 of 2003)
  • Dyson v Attorney General [1911] 1 KB 410
  • Guaranty Trust Co. of New York v Hannay & Co. [1915] KB 536
  • Gibson v Union Shop Distribution & Allied Workers [1958] 2 All ER
  • Oluka & Others v Attorney General (CS No. 12 of 2010)
  • Johnson v Moss & Others [1969] EALR 654
  • Tarlogan Singh v Jaspal Phaguda & Others [1997-2001] UCLR 408
  • Subhash Market Association v Municipal Corporation, Delhi AIR 2005 Del 209
  • Registered Trustee of the Catholic Diocese of Nyeri & Another v Standard Ltd & Others [2003] EALR 257

Full judgment

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

Kasozi Joseph & Ors v UMEME (U) Ltd (HCCS 188 of 2010) [2011] UGCommC 91 (22 August 2011)
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.