Wakilii

Makeme and 3 others v Wamukota and Another (Civil Miscellaneous Application 248 of 2020)

High Court · [2024] UGHC 604 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order arising from Administration Cause No. 10 of 2012
Decision
Application dismissed with no order as to costs

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Holding

The High Court dismissed the application to set aside a dismissal order on two grounds. First, the Notice of Motion issued on 9 January 2023 was served on the respondents on 13 September 2023, beyond the mandatory 21-day period prescribed by Order 5 Rule 2 of the Civil Procedure Rules, without any extension of time being sought. Second, the applicants failed to demonstrate sufficient cause, having not followed up on their suit for over seven years and failing to prove the alleged forgeries or that their former counsel withdrew without notice. The administration process had been completed and the estate distributed.

Outcome

Application dismissed with no order as to costs

Facts

The applicants filed Administration Cause No. 10 of 2012 seeking revocation of Letters of Administration granted to the respondents in Probate Administrative Cause No. 100 of 2009. The suit was dismissed on 28 August 2019 for non-prosecution after the applicants failed to appear for over seven years. The applicants claimed they were not served with hearing notices and that signatures on service documents were forged. Their former lawyers, M/s Samuel Wegoye Advocates, had withdrawn instructions without notice. The applicants filed the present application on 9 January 2023 seeking to set aside the dismissal, but served it on the respondents only on 13 September 2023. By 30 September 2019, the respondents had filed their final inventory and distributed the estate.

Issues

  1. Whether the Notice of Motion was validly served on the respondents within the time prescribed by law.
  2. Whether the applicants demonstrated sufficient cause to warrant setting aside the dismissal order in Administration Cause No. 10 of 2012.

Orders

  • Application dismissed.
  • No order as to costs since the suit relates to estate administration.

Rules and key headnotes

Civil Procedure — Service of Process — Mandatory Time Limits — Order 5 Rule 2 CPR
Under Order 5 Rule 2 of the Civil Procedure Rules, summons must be served within 21 days of issuance, and failure to do so without obtaining an extension invalidates the summons. Non-compliance with this mandatory provision goes to the jurisdiction of the court as issuance and service of summons is the foundation of the right to be heard.
Civil Procedure — Service — Effect of Stale Process — Order 5 Rule 3(b) CPR
Where summons has been issued and there is no application for extension of time to serve beyond the prescribed 21 days, the suit shall be dismissed. This is a mandatory requirement and the court cannot sanction what is illegal.
Civil Procedure — Substantive Justice — Article 126(2)(e) — Limits on Application
Article 126(2)(e) of the Constitution, which enjoins courts to deliver substantive justice without undue regard to technicalities, is not a magical wand in the hands of defaulting litigants. Rules and timelines for filing and service are not technicalities but regulate the conduct of court business to ensure fairness and orderly disposal of cases. A litigant relying on Article 126(2)(e) must satisfy the court that in the circumstances of the particular case it was not desirable to have undue regard to the relevant technicality.
Civil Procedure — Setting Aside Dismissal Orders — Sufficient Cause
Sufficient cause for setting aside a dismissal order must relate to the inability or failure to take a particular step in time. It means that a party had not acted in a negligent manner or there was no want of bonafide on its part, and the party cannot be alleged to have been not acting diligently or remaining inactive. A party who files a suit ought to be vigilant and follow up on their case either by maintaining contact with their lawyers or, in a worst case scenario, by following up with the court physically or in writing.

Legislation cited (11)

Cases cited (7)

  • Edison Kanyabwera v Pastori Tumwebaze (2005) 2 EA 86
  • Rashida Abdul Karim and Another v Suleiman Adrisi (High Court Misc. Application No. 9 of 2017)
  • Makula International v His Eminence Cardinal Nsubuga (1982) HCB 11
  • UTEX Industries v Attorney General (Supreme Court Civil Appeal No. 52 of 1995)
  • Kasirye Byaruhanga & Co. Advocates v UDB (Supreme Court Civil Appeal No. 2 of 1997)
  • Rosette Kizito v Administrator General & Others (Supreme Court Civil Application No. 9 of 1986)
  • Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers Society & Another (Misc. Application No. 696 of 2018)

Full judgment

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

Makeme and 3 others v Wamukota and Another (Civil Miscellaneous Application 248 of 2020) [2024] UGHC 604 (13 June 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.