Sam Mpozza Musika v Godfrey Kamuzinzi and Another (Miscellaneous Application 147 of 2025)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that a defence filed by advocates without instructions from the client is invalid and must be struck out. Where no affidavit of service proves service of summons on a defendant, and the record shows the advocate never represented that defendant, the defence was filed without authority. Court has discretion under Order 51 Rule 6 to extend time for filing a defence where sufficient reason is shown, including want of service.

Outcome

Defence struck out; applicant granted leave to file defence and counter-claim within 21 days; ex parte proceedings set aside

Facts

The Respondents filed Civil Suit No. 505 of 2017 (renumbered as CS No. 91 of 2025) against the Applicant and three other defendants. A written statement of defence purportedly on behalf of the Applicant was filed on 17 August 2017 by M/s Newmark Advocates. The Applicant claimed he never instructed that firm and only learned of the suit in May 2024 when served with hearing notices. When he appeared in court on 20 June 2024, he informed the court he had been told about the case via WhatsApp and requested time to obtain a lawyer. The record showed no affidavit of service proving the Applicant was served with summons to file a defence. Counsel Shafiq Mutale of Newmark Advocates appeared on several occasions but only for the 2nd, 3rd and 4th defendants, not the Applicant. On 1 November 2022, the Respondents' counsel informed court that the Applicant's address was unknown and they intended to apply for substituted service, in the presence of Counsel Mutale. The Applicant subsequently instructed M/s Nsamba & Co. Advocates and brought this application to expunge the defence and for leave to file a defence out of time.

Issues

1. Whether the written statement of defence filed in CS No. 91 of 2025 should be expunged off court record.
2. Whether the applicant was served with pleadings in HCCS No. 91/2025.
3. Whether M/s Newmark Advocates had instructions to represent the Applicant in HCCS No. 91/2025.
4. Whether the Applicant has justifiable cause to file a defence out of time.

Orders

• The written statement of defence to CS No. 91/2025 dated 16/08/2017 allegedly filed by the 1st Defendant/Applicant is hereby struck out.
• Any ex parte proceedings against the Applicant are hereby set aside.
• The Applicant is granted leave to file his written statement of defence and counter-claim in Civil Suit No. 91 of 2025 within 21 days from the date of delivery of this ruling.
• Each party shall bear their own costs of this application.

Rules and key headnotes

Legislation cited (13)

• Civil Procedure Act Cap 282 s.98
• Civil Procedure Act s.20
• Civil Procedure Act s.96
• Judicature Act s.37
• Civil Procedure Rules Order 52 r.1
• Civil Procedure Rules Order 52 r.2
• Civil Procedure Rules Order 52 r.3
• Civil Procedure Rules Order 5 r.1
• Civil Procedure Rules Order 5 r.9
• Civil Procedure Rules Order 5 r.10
• Civil Procedure Rules Order 5 r.16
• Civil Procedure Rules Order 51 r.6
• Advocates (Professional Conduct) Regulations Regulation 2(1)

Cases cited (5)

• Kabale Housing Estates Tenants Association v Kampala Municipal Council (Civil Suit Application No. 15 of 2013)
• [1951] 1 All ER 925
• Soroti District Land Board v Okim Eric (Miscellaneous Application No. 177 of 2023)
• Water and Environment Media Network (U) Ltd v National Environmental Authority (Miscellaneous Cause No. 509 of 2020)
• Mulenga Christopher v Stanbic Bank (U) Ltd (HCMA No. 200 of 2013)

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