Wakilii

Kwezi and 2 Others v Kyomuhendo Mugungu and 2 Others (Miscellaneous Application No. 56 of 2019)

High Court · [2021] UGHCCD 182 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to dismiss appeal for want of prosecution, arising from Civil Appeal No. 064 of 2015
Decision
Application dismissed with costs to the Respondents; underlying appeal to proceed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a Notice of Motion supported by an affidavit is an exception to the general requirement under Order 6 rule 2 of the Civil Procedure Rules to accompany pleadings with a summary of evidence and list of witnesses. However, the mandatory requirement under Order 5 rule 1(2) to serve an application within 21 days from the date of issue cannot be ignored as a mere technicality. Where service is effected after the prescribed time and no extension of time was sought, the application is incompetent and must be dismissed.

Outcome

Application dismissed with costs to the Respondents; underlying appeal to proceed

Facts

The Applicants sued the Respondents in the Chief Magistrate's Court of Masindi in Civil Suit No. 63 of 2013. The Respondents applied to amend their Written Statement of Defence via Miscellaneous Application No. 18 of 2015, which was dismissed on 17 September 2015. The Respondents filed a Memorandum of Appeal on 2 October 2015 (Civil Appeal No. 64 of 2015) against the dismissal of their amendment application. For approximately three and a half years, the appeal remained pending with no progress. The Applicants then filed this application to dismiss the appeal for want of prosecution, alleging the Respondents were using the appeal to frustrate them. The Respondents opposed, arguing they could not obtain the mother file from the lower court registry and therefore could not prepare the record of appeal. The application was filed on 23 April 2019, issued by court on 7 May 2019, but not served on the Respondents until 18 June 2019—more than one month after issue and beyond the 21-day time limit prescribed by the Civil Procedure Rules.

Issues

  1. Whether the failure by the applicant to accompany the Notice of Motion application with a brief summary of evidence to be adduced, a list of witnesses, a list of documents and a list of authorities rendered the application fatal.
  2. Whether the applicant's failure to serve the application within the time stipulated by Order 5 rule 1(2) of the Civil Procedure Rules rendered the application fatal.

Orders

  • The preliminary objection on failure to accompany the Notice of Motion with summary of evidence and list of witnesses is rejected.
  • The preliminary objection on failure to serve the application within the prescribed time is upheld.
  • The application is dismissed with costs to the Respondents.
  • The Appellants/Respondents to file written submissions in support of the appeal within 14 days from the date of delivery of this ruling and serve them upon the Respondents' counsel.
  • The Respondent is given 14 days from the date of receipt of the Appellants' submissions to file their respective submissions.
  • The Appellants are given 5 days to file a rejoinder if any, thereafter the file shall be set for judgment.

Rules and key headnotes

Civil Procedure — Notice of Motion — Requirements under Order 6 rule 2 CPR — Application of specific versus general provisions
Where a specific provision (Order 52 rule 3 CPR) governs the form and content of a Notice of Motion and requires only that the motion state the grounds of application and be accompanied by affidavits, that specific provision takes precedence over the general requirement in Order 6 rule 2 CPR that all pleadings be accompanied by a summary of evidence, list of witnesses, list of documents, and list of authorities. A Notice of Motion supported by an affidavit is an exception to the general requirement because the evidence to be relied upon is embedded in the affidavit.
Civil Procedure — Service of Process — Time limits under Order 5 rule 1(2) CPR — Mandatory compliance
The requirement under Order 5 rule 1(2) of the Civil Procedure Rules that service of summons or applications be effected within 21 days from the date of issue is couched in mandatory terms and must be observed. Where an application is served outside the 21-day period and no application for extension of time was made within 15 days after expiration of the initial period, the application becomes incompetent and liable for dismissal under Order 5 rule 1(3) CPR.
Civil Procedure — Service of Process — Constitutional technicality provision — Limits on application
Article 126(2)(e) of the Constitution, which provides that substantive justice shall not be sacrificed for technicalities, does not cure non-compliance with the mandatory time limits for service prescribed in Order 5 rule 1(2) of the Civil Procedure Rules. Provisions of Order 5 rule 1 are couched in mandatory terms and cannot be ignored as mere technicalities.
Civil Procedure — Pleadings — Court's discretion not to reject non-compliant pleadings
Where a court exercises discretion not to reject a pleading filed in violation of procedural requirements, there must be some explanation or reason put forward by the party in default upon which the discretion may be exercised. Non-compliance with procedural rules does not automatically lead to rejection, but the party seeking the court's indulgence must provide reasons for the failure to comply.

Legislation cited (9)

Cases cited (12)

  • Uwizera Norbert v Theophilus Rugyero (High Court Civil Application No. 12 of 2018)
  • N. Shah & Co Ltd v M.K. Finances Ltd (Constitutional Application No. 26 of 2014)
  • Minister of Internal Affairs v Kagwa Andrew and 5 Others (High Court Miscellaneous Application No. 660 of 2002)
  • Uwizera Bobert v Theophilus Rugyero (High Court Miscellaneous Application No. 012 of 2018)
  • Samwiri Kibuuka v Eriya Lugeya Lubanga (High Court Miscellaneous Application No. 656 of 2005)
  • Richard Mwiruvumbi v Jada Ltd (High Court Civil Suit No. 978 of 1996)
  • Sule Pharmacy Ltd v Registered Trustees of Khoja Shia Jenali (High Court Miscellaneous Application No. 147 of 1999)
  • Fredrick James Jjunju and Another v Madhiuam Group Ltd and Another (High Court Miscellaneous Application No. 688 of 2015)
  • Amdan Khan v Stanbic Bank (U) Ltd (High Court Miscellaneous Application No. 900 of 2013)
  • Kanyabwera v Tumwebaze [2005] 2 EA 86
  • Michael Mulo Mulaggussi v Peter Katabalo (High Court Miscellaneous Application No. 06 of 2016)
  • Orient Bank Ltd v Avis Enterprises (High Court Civil Appeal No. 2 of 2013)

Full judgment

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Kwezi and 2 Others v Kyomuhendo Mugungu and 2 Others (Miscellaneous Application No. 56 of 2019) [2021] UGHCCD 182 (6 September 2021)
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.