Wakilii

Twaiman v Abdul & Others (Miscellaneous Application 39 of 2022)

High Court · [2024] UGHC 616 · 2024 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on a preliminary point of law in a miscellaneous application arising from Civil Suit No. 100 of 2018
Decision
Preliminary objection dismissed; matter to proceed to hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a Notice of Motion in a miscellaneous application is itself a summons requiring service within 21 days under Order 5 CPR. Where fresh summons were issued after the original file was misplaced, the 21-day service period runs from the date of issuance of fresh summons. Since the respondent was served on the same date fresh summons were issued (12 July 2022), service was effected in time. Preliminary objection overruled.

Outcome

Preliminary objection dismissed; matter to proceed to hearing on merits

Facts

The applicant filed a miscellaneous application arising from Civil Suit No. 100 of 2018. The application was filed and endorsed by the Registrar on 9 and 24 March 2022 respectively. The respondents were served on 13 July 2022. The respondent raised a preliminary objection that the application was incompetent because service was effected outside the 21-day period required under Order 5 r.1(2) CPR. The applicant argued that the file went missing on 5 May 2022 and was only traced in July 2022, preventing timely service. Fresh summons were issued on 12 July 2022 and the respondent was served the same day.

Issues

  1. Whether the miscellaneous application was incompetent for having been served out of time under Order 5 r.1(2) of the Civil Procedure Rules.

Orders

  • Preliminary point of law overruled.
  • Court to proceed to hear the application on its merits.

Rules and key headnotes

Civil Procedure — Service of Summons — Miscellaneous Applications — Applicability of Order 5 CPR
A Notice of Motion in a miscellaneous application is by itself a summons of a party or parties to appear before the court for a hearing and must be served in accordance with Order 5 of the Civil Procedure Rules.
Civil Procedure — Service of Summons — Fresh Summons — Commencement of Time Period
Where fresh summons are issued by the court in respect of a matter, the twenty-one day period for service under Order 5 r.1(2) CPR runs from the date of issuance of the fresh summons.

Legislation cited (5)

Cases cited (3)

  • Kanyabwera v Tumwebaze (2005) EA 86
  • Orient Bank Ltd v AVI Enterprises (HCCA No. 2 of 2013)
  • Stop and See (U) Ltd v Tropical Africa Bank Ltd (Miscellaneous Application No. 533 of 2010)

Full judgment

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

Twaiman v Abdul & Others (Miscellaneous Application 39 of 2022) [2024] UGHC 616 (5 July 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.