Wakilii

Nakibinge v Kamya (Miscellaneous Application 754 of 2022)

High Court · [2023] UGHCFD 63 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from judgment in Civil Suit No. 114 of 2015
Decision
Application dismissed for defective service

Observed later treatment

No later-treatment classification is recorded for this judgment.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

An application for stay of execution served on the respondent outside the 21-day period prescribed by Order 5 rule 2 of the Civil Procedure Rules, without seeking leave to serve out of time, is defective and must be dismissed. All provisions under Order 5 rule 1 are of strict application since a penalty accrues upon default.

Outcome

Application dismissed for defective service

Facts

The applicant unsuccessfully sued the respondent in Civil Suit No. 114 of 2015. Judgment was delivered against the applicant on 23 February 2018. The applicant filed Civil Appeal No. 323 of 2020, which remained pending. The applicant then brought this application for stay of execution, alleging that the respondent was executing administration duties and attempting to evict beneficiaries and dispose of estate property. The application was filed on 11 August 2022 but was not served on the respondent until 18 November 2022, outside the 21-day period prescribed by the Civil Procedure Rules. The applicant did not seek leave to serve out of time.

Issues

  1. Whether the application for stay of execution should be dismissed for being served out of time without leave of court.

Orders

  • Preliminary objection upheld.
  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Service of Process — Time Limits — Strict Compliance
All provisions under Order 5 rule 1 of the Civil Procedure Rules are of strict application since a penalty accrues upon default, and failure to serve a notice of motion within the prescribed time without seeking leave to serve out of time renders the application defective and liable to dismissal.
Civil Procedure — Service of Process — Leave to Serve Out of Time
Where an application is not ready for service until the court gives a date, and service occurs outside the prescribed time limit, the applicant must seek leave to serve out of time in the same application for a date; failure to do so renders the service defective.
Civil Procedure — Service of Process — Penalty for Default
The penalty for failure to serve a notice of motion within the time prescribed under Order 5 rule 1(3)(a) of the Civil Procedure Rules is dismissal of the application.

Legislation cited (3)

  • Civil Procedure Rules O.5 r.1
  • Civil Procedure Rules O.5 r.2
  • Civil Procedure Rules O.5 r.1(3)(a)

Cases cited (2)

Full judgment

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Nakibinge v Kamya (Miscellaneous Application 754 of 2022) [2023] UGHCFD 63 (15 February 2023)
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.