Wakilii

Rajesh Kumar v Mahmood Somani (Miscellaneous Cause No. 62 of 2018)

High Court · [2019] UGCOMMC 232 · 2019 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for temporary injunction arising from pending civil suit
Decision
Preliminary objection to late-filed Affidavit dismissed; matter to proceed to hearing on merits

Observed later treatment

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Holding

Held that an Affidavit in reply filed out of time should not be rigidly struck out where no prejudice is caused to the opposite party that cannot be remedied by costs. The court distinguished between defences and affidavits, noting that affidavits are evidence rather than pleadings in stricto sensu and should be filed within a reasonable time before hearing to allow the adverse party opportunity to respond. The period for filing was extended, the Affidavit admitted, and the Respondent ordered to bear costs of the adjournment.

Outcome

Preliminary objection to late-filed Affidavit dismissed; matter to proceed to hearing on merits

Facts

The Applicant, operations manager and 5% shareholder in a company, brought an application for temporary injunction in the main suit HCCs 869 of 2018. The Respondent had been a shareholder and director until 27 June 2018 when he sold his shares to the 2nd Defendant, who became the 95% majority shareholder and managing director. The Applicant sought to restrain the Respondent from interfering in company affairs and his employment contract. The Respondent was served on 2 November 2018 but filed his Affidavit in reply on 11 January 2019, two months late. The Applicant objected to the late filing. Respondent's counsel conceded the delay but argued it would be unjust to deny the Respondent a hearing, attributing fault to counsel rather than the client.

Issues

  1. Whether the Respondent's Affidavit in reply filed two months after service should be struck out or admitted despite being filed out of time.
  2. Whether the court should exercise its discretion to extend time for filing the Affidavit in reply.

Orders

  • The period within which the Affidavit in reply was filed is validated as extended.
  • The Affidavit in reply is admitted on record.
  • The Respondent shall bear and pay all costs associated with the adjournment on 16th January 2019 and extension of time.
  • The Application is fixed for hearing on its merits once the Applicant has filed his rejoinder if he wishes to do so.

Rules and key headnotes

Civil Procedure — Late Filing of Affidavits — Distinction Between Pleadings and Evidence
An Affidavit in reply, being evidence rather than a pleading in stricto sensu, should be filed and served within a reasonable time before the hearing date sufficient to allow the adverse party a fair opportunity to respond, but time constraints applied to defences may be misplaced when applied to affidavits.
Civil Procedure — Affidavits Filed Out of Time — Discretion to Admit
An Affidavit in reply filed out of time should not be rigidly struck out where no prejudice is caused to the opposite party that cannot be remedied by an appropriate order as to costs, and the court should exercise flexibility controlled by the presiding judge's discretion in relation to the facts of the case.
Civil Procedure — Extension of Time — Factors for Exercise of Discretion
Before exercising discretion to extend time for filing, the court considers the extent of the delay, the reason for the failure to comply with the time limit, and the likely injustice or prejudice to the other party.
Constitutional Law — Interpretation of Article 126(2) — Procedural Rules
Article 126(2) of the Constitution enjoining courts to apply the law without undue regard to technicalities was not meant to do away with rules of procedure, and observing timelines does not amount to undue regard to technicality.

Legislation cited (7)

Cases cited (4)

  • Stop and See (U) Limited v Tropical Africa Bank (Miscellaneous Application No. 333 of 2010)
  • Utex Industries Ltd v Attorney General (Supreme Court Civil Appeal No. 52 of 1995)
  • Nelson Sandy Ndugu v Electoral Commission (Election Petition No. 4 of 2006)
  • Dr Lam-Lagoro James v Muni University (Miscellaneous Cause No. 7 of 2016)

Full judgment

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

Rajesh Kumar v Mahmood Somani (Miscellaneous Cause No. 62 of 2018) [2019] UGCommC 232 (25 January 2019)
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.