Wakilii

Nakirya v Kiggundu (HCCS 3065 of 2016)

High Court · [2022] UGHCLD 158 · 2022 Preliminary Objection Upheld — Plaint Rejected AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass; ruling on two preliminary objections raised by defendant
Decision
Plaint rejected; suit dismissed as a nullity ab initio for suing a deceased and non-existent defendant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a suit against a deceased and non-existent defendant is a nullity ab initio and discloses no cause of action. The fatal defect of suing a non-existent party cannot be cured by amendment or substitution. The plaint was rejected under Order 7 Rule 11(a) and (d) of the Civil Procedure Rules.

Outcome

Plaint rejected; suit dismissed as a nullity ab initio for suing a deceased and non-existent defendant

Facts

The plaintiff sued the defendant for trespass, alleging that the defendant constructed rental houses on her land comprised in Busiro Block 266 Plot 166 at Seguku. The defendant's written statement of defence pleaded that the late Kiggundu Tamale had obtained title to the neighbouring Plot 147 in 1985, built a house, and paid compensation to the plaintiff in 1986 for encroachment by boys' quarters. The defendant pleaded that the matter had been settled before the deceased died in 2002. At the commencement of the hearing, defendant's counsel raised two preliminary objections: that the suit disclosed no cause of action because the defendant was deceased and non-existent, and that the suit was time barred. Plaintiff's counsel admitted in submissions that the defendant had died by 27 April 2014 and sought leave to substitute the legal representative.

Issues

  1. Whether the plaintiff's suit discloses a cause of action.
  2. Whether the plaintiff's suit is time barred.

Orders

  • The first preliminary objection is upheld.
  • The plaint is rejected under Order 7 Rule 11(a) and (d) of the Civil Procedure Rules.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Cause of Action — Suing Deceased and Non-Existent Party
A suit against a deceased and non-existent defendant is a nullity ab initio and discloses no cause of action. The fatal defect of suing a non-existent party cannot be cured by way of amendment or substitution, as there is nothing to amend.
Civil Procedure — Striking Out Pleadings — Cause of Action — Exception to Face of Plaint Rule
Upon an application to strike out a plaint for not disclosing a cause of action, the court ought to restrict its ruling to the defect of the plaint and not decide on the merits. The exception is where the court is satisfied that the cause of action disclosed is clearly not maintainable in law.
Civil Procedure — Cause of Action — Elements Required in Plaint
A cause of action is disclosed in a plaint if three elements are pleaded: that the plaintiff enjoyed a right, that the right has been violated, and that the defendant is liable.

Legislation cited (5)

Cases cited (8)

  • Gawubira Mankupias v Katwiita Stephen (HC Civil Appeal No. 130 of 2008)
  • Abram Kitumba v Uganda Telecommunications Corporation [1994] 11 KALR 126
  • Ismail Serugo v Kampala City Council (SC Constitutional Appeal No. 2 of 1998)
  • Tororo Cement Co. Ltd v Frokina International Ltd (SCCA No. 2 of 2001)
  • Baku Raphael Obudra & Obiga Kania v Attorney General (SC Constitutional Appeal No. 1 of 2003)
  • Macfoy v United Africa Company Ltd [1961] 3 All ER 1169
  • Paul Nyamarere v UEB (in Liquidation) [2008] HCB 126
  • Mulangira Ssimbwa v Board of Trustees of Miracle Centre and Another (HCMA No. 655 of 2005)

Full judgment

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

Nakirya_v_Kiggundu_(HCCS_3065_of_2016)_[2022]_UGHCLD_158_(22_August_2022)
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.