Wakilii

Orishaba v Ngobi (Miscellaneous Application 49 of 2023)

High Court · [2024] UGHC 621 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of ruling and stay of execution arising from Miscellaneous Cause No. 24 of 2022
Decision
Application dismissed for failure to serve within prescribed time

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that a miscellaneous application filed on 15 March 2023 but served on 1 June 2023 was served outside the 21-day period prescribed by Order 5 rule 1(2) of the Civil Procedure Rules. No valid application for extension of time was proven. The court declined to take judicial notice of a purported validating ruling in Miscellaneous Application No. 93 of 2023 as no documentary evidence was produced. The application was dismissed.

Outcome

Application dismissed for failure to serve within prescribed time

Facts

The Applicant sought review of a ruling in Miscellaneous Cause No. 24 of 2022 and a permanent stay of execution. The Application was filed and sealed by the Registrar on 15 March 2023 but was not served on the Respondent until 1 June 2023. The Respondent raised a preliminary objection that service was effected outside the 21-day period prescribed by Order 5 rule 1(2) of the Civil Procedure Rules, which expired on 5 April 2023. The Applicant contended that the court had validated the Application through Miscellaneous Application No. 93 of 2023, but produced no documentary evidence of such ruling. The court was asked to take judicial notice of the purported validating order.

Issues

  1. Whether the Application was properly served on the Respondent within the time prescribed by Order 5 rule 1(2) of the Civil Procedure Rules.
  2. Whether the court could take judicial notice of a purported ruling in Miscellaneous Application No. 93 of 2023 in the absence of documentary evidence.
  3. Whether the Application should be dismissed for failure to serve within the prescribed time.

Orders

  • Miscellaneous Application No. 49 of 2023 is dismissed due to the Applicant's failure to serve the Application on the Respondent within the precepts of Order 5 of the Civil Procedure Rules.
  • Costs of the Application are awarded to the Respondent.

Rules and key headnotes

Civil Procedure — Service of Process — Time Limits for Service of Summons
A Notice of Motion filed in a miscellaneous application must be served on the respondent within 21 days from the date of issue as required by Order 5 rule 1(2) of the Civil Procedure Rules, failing which the application stands dismissed if no extension of time is sought within 15 days or if the application for extension is dismissed.
Civil Procedure — Service of Process — Notice of Motion as Summons
A Notice of Motion serves a dual purpose: it is both a pleading on the part of the applicant and a summons on the part of the court, and is therefore subject to the service timelines prescribed by Order 5 of the Civil Procedure Rules.
Evidence — Burden of Proof — Proof of Existence of Court Orders
Under Section 101 of the Evidence Act, a party who desires the court to give judgment dependent on the existence of facts must prove those facts exist. Where a party asserts that a court order or ruling exists, that party must produce documentary evidence of such order or ruling and cannot rely on mere assertion.
Evidence — Judicial Notice — Discretion to Take Judicial Notice
Under Section 56(3) of the Evidence Act, when a court is called upon to take judicial notice of any fact, it may refuse to do so until the party produces such documents as the court considers necessary. The discretion to take judicial notice is vested in the court and is not an automatic right of the party alleging the fact.
Civil Procedure — Dismissal for Want of Service — Mandatory Nature
A suit dismissed for want of summons under Order 5 rule 1(3) of the Civil Procedure Rules is not dismissed at the discretion of the judicial officer. The judicial officer dismisses the suit as directed by the mandatory stipulation of the rules.

Legislation cited (14)

Cases cited (11)

  • Jjunju v Madhivani Group (Miscellaneous Application No. 688 of 2015)
  • Sheik Dawood v Keshwala & Sons (Civil Appeal No. 14 of 2009)
  • Mulaggusi v Katabalo (Miscellaneous Appeal No. 006 of 2016)
  • Arim v Stanbic Bank (Civil Appeal No. 3 of 2015)
  • Kanyabwera v Tumwebaze (2005) EA 86
  • Orient Bank v AVI Enterprises (High Court Civil Appeal No. 2 of 2013)
  • Stop and See (U) Ltd v Tropical Africa Bank (Miscellaneous Application No. 333 of 2010)
  • Mitti v Ssewagude (Civil Suit No. 449 of 2016)
  • Sebuliba v Co-operative Bank [1982] HCB 129
  • Mulyabintu v Case Western Reserve University (Civil Appeal No. 190 of 2013)
  • Nantume v Administrator General (Miscellaneous Appeal No. 1448 of 2018)

Full judgment

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

Orishaba v Ngobi (Miscellaneous Application 49 of 2023) [2024] UGHC 621 (29 May 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.