Wakilii

Smith and Others v Wessels (C.C. 48-1927.)

East African Court of Appeal · [1927] EACA 46 · 1927 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit with plaintiff seeking to discontinue before hearing
Decision
Suit discontinued by plaintiff; defendant awarded costs up to discontinuance

Observed later treatment

No later-treatment classification is recorded for this judgment.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that although a summons was issued and served on the defendant under Order 5 Rule 1(1)(b) and the defendant filed a defence, the suit had not been set down for hearing by the plaintiff in the manner contemplated by Order 9 Rule 10. The plaintiff was therefore entitled to discontinue the suit under Order 22 Rule 1 before taking any other proceeding.

Outcome

Suit discontinued by plaintiff; defendant awarded costs up to discontinuance

Facts

The plaintiff filed a suit by presenting a plaint in a District Registry. A summons was issued and served on the defendant under Order 5 Rule 1(1)(b) ordering him to appear and answer the claim. The defendant filed his defence within the prescribed time under Order 8 Rule 1. After negotiation, the plaintiff filed a notice of discontinuance under Order 22 Rule 1. The defendant's advocate refused to allow the suit to be removed from the list of suits to be dealt with at the Eldoret Sessions, contending that the suit had been set down for hearing by virtue of Order 9 Rule 11 when the summons was issued.

Issues

  1. Whether a plaintiff who has caused a summons to be issued and served under Order 5 Rule 1(1)(b) but has not set the suit down for hearing under Order 9 Rule 10 is entitled to discontinue the suit under Order 22 Rule 1.
  2. Whether the filing of a defence by the defendant constitutes the suit being set down for hearing by the plaintiff within the meaning of Order 22 Rule 2.

Orders

  • Suit discontinued by the plaintiff on 20 October 1927.
  • Defendant entitled to lodge bill of costs up to and including receipt of notice of discontinuance.
  • Costs of appearance in Court on 26 October 1927 to be borne by the defendant.

Rules and key headnotes

Civil Procedure — Discontinuance of Suit — Right to Discontinue Before Setting Down for Hearing
A plaintiff who has caused a summons to be issued and served under Order 5 Rule 1(1)(b) but has not set the suit down for hearing in the manner contemplated by Order 9 Rule 10 is entitled to discontinue the suit under Order 22 Rule 1.
Civil Procedure — Setting Down for Hearing — Meaning and Application
The words 'set down for hearing' in Order 22 Rule 2 relate to an act such as is contemplated in Order 9 Rule 10, and the mere issuance and service of a summons under Order 5 Rule 1(1)(b) does not constitute setting down a suit for hearing by the plaintiff.
Civil Procedure — Discontinuance — Meaning of 'Any Other Proceeding'
The words 'before taking any other proceeding' in Order 22 Rule 1 refer to some act subsequent to the institution of the suit, and the handing in of a plaint cannot constitute 'any other proceeding' for the purposes of that rule.

Legislation cited (6)

  • Civil Procedure Rules 1927 Order 5 Rule 1(1)(b)
  • Civil Procedure Rules 1927 Order 8 Rule 1
  • Civil Procedure Rules 1927 Order 9 Rule 10
  • Civil Procedure Rules 1927 Order 9 Rule 11
  • Civil Procedure Rules 1927 Order 22 Rule 1
  • Civil Procedure Rules 1927 Order 22 Rule 2

Full judgment

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Smith and Others v Wessels (C.C. 48-1927.) [1927] EACA 46 (1 January 1927)
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.