Wakilii

Narendrakumar v Mutenderwa & 2 Others (Civil Suit 247 of 2015)

High Court · [2024] UGHC 247 · 2024 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objection to dismiss suit for failure to prosecute
Decision
Preliminary objection dismissed; suit to proceed to hearing on merits upon payment of costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the 1st Defendant's preliminary objection seeking dismissal of the suit for failure to prosecute under Order 17 Rule 4 of the Civil Procedure Rules. The court held that despite the Plaintiff's delay in filing witness statements and trial bundles, the interests of justice required that the matter be heard inter-parties to its logical conclusion. The court found that delays were partly attributable to the COVID-19 pandemic and both parties' conduct. However, the court condemned the Plaintiff in costs of UGX 1,000,000 payable upfront before the next hearing date as a condition for the suit to continue.

Outcome

Preliminary objection dismissed; suit to proceed to hearing on merits upon payment of costs

Facts

The Plaintiff filed Civil Suit No. 247 of 2015 on 26 November 2015 seeking recovery of UGX 152,178,000 from the Defendants, alleging they had received money for the purchase of 25 acres of land but failed to deliver vacant possession. The 1st Defendant filed his defence in December 2015. The matter proceeded through mediation in 2016, which failed. The case suffered multiple adjournments, largely due to non-attendance by Defendants and later due to the COVID-19 pandemic. On 14 March 2023, the court issued schedules for filing pre-trial documents with hearing fixed for 6 June 2023. The 1st Defendant complied but the Plaintiff did not file witness statements or trial bundles by the deadline. On 6 June 2023, Plaintiff's counsel sought an adjournment citing the Plaintiff's chronic illness and absence of the 2nd and 3rd Defendants. The 1st Defendant raised a preliminary objection seeking dismissal for failure to prosecute and disobedience of court orders.

Issues

  1. Whether the Plaintiff has proved sufficient cause to hear the merits of the case in Civil Suit No. 247 of 2015?
  2. Whether the suit ought to have been dismissed for failure to prosecute?

Orders

  • Preliminary objection dismissed.
  • Civil Suit No. 247 of 2015 should continue to be heard to its logical conclusions.
  • The Plaintiff must comply with filing any missing documents and/or evidence within 14 days of this ruling.
  • Costs of UGX 1,000,000 awarded to the Defendants to be paid upfront before the next hearing date.
  • Right to seek leave to appeal to the Court of Appeal explained.

Rules and key headnotes

Civil Procedure — Dismissal for Want of Prosecution — Discretionary Power of Court
The court has discretionary power under Order 17 Rule 4 of the Civil Procedure Rules to determine whether to dismiss a suit where a party fails to file witness statements within the time stipulated, and may instead allow the suit to proceed where the interests of justice so require, particularly where delays are partly attributable to circumstances beyond the plaintiff's control and both parties share responsibility for the delay.
Civil Procedure — Court Orders — Consequences of Disobedience — Discretionary Remedies
While court orders must be obeyed unless set aside or varied, dismissal of a suit for non-compliance with directions to file witness statements is a discretionary remedy, and a court may decline to dismiss where doing so would serve the ends of justice, particularly where the defaulting party can be adequately sanctioned through costs orders payable as a condition for the suit to proceed.
Civil Procedure — Delay in Prosecution — COVID-19 Pandemic — Mitigating Circumstances
Courts should be accommodative of delays in prosecution of suits that arose during the COVID-19 pandemic, and such institutional disruptions constitute relevant circumstances in determining whether to dismiss a suit for want of prosecution or to allow it to proceed to hearing on the merits.
Civil Procedure — Illness of Party — Sufficient Cause for Adjournment
Chronic illness of a plaintiff may constitute sufficient cause for granting an adjournment to file witness statements and other pre-trial documents under Order 17 Rules 1 and 2 of the Civil Procedure Rules, and courts should receive liberal construction of 'sufficient cause' to advance substantial justice where no negligence is imputed.

Legislation cited (10)

Cases cited (12)

  • Amrit Goyal v Harichand Goyal and 3 Others (Court of Appeal Civil Application No. 109 of 2004)
  • Balaba Robinah and Another v Hussein Mohamad and Registrar Land Registration (Civil Suit No. 109 of 2017)
  • The Registered Trustees of the Archdiocese of Dar es Salaam v the Chairman Bunju Village Government & others
  • Mosa Oncwati v Kenya Oil Co. Ltd & Another [2017] KLR
  • Star Mineral Water and Ice Factory (1961) E.A, 454
  • Captain Phillip Ongom v Catherine Nyerowoota (Supreme Court Civil Appeal No. 14 of 2001)
  • Elimu John v Akello Helen (Miscellaneous Application No. 0152 of 2018)
  • The Executrix of the Estate of the Late Christine Tebajjukira and Another v Mary Namatovu and Another (Supreme Court Civil Appeal No. 8 of 1988)
  • [2021] UGHCCD 108
  • Edward Rubanga and 347 Others v Bashasha & Co. Advocates (Miscellaneous Appeal No. 15 of 2017)
  • Allen vs Sir Alfred McAlpine & Sons Ltd [1968]1 ALL ER 543
  • Patel vs Star Mineral Water and Ice Factory (1961) EA 454

Full judgment

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

Narendrakumar v Mutenderwa & 2 Others (Civil Suit 247 of 2015) [2024] UGHC 247 (28 March 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.