[2025] UGHC 402

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-CV-MA-0029-2024**

**(Arising from HCT-25-CV-CA-0015-2024)**

**(Arising from KAS-02-CV-CS-0033-2021)**

**KAFEERO NOBERT==========================================APPLICANT**

**VERSUS**

**AGRI EVOLVE UGANDA LTD=================================RESPONDENT**

**BEFORE JUSTICE DAVID S. L. MAKUMBI**

**RULING**

**REPRESENTATION:**

Applicant represented by M/S Nyakaana-Mabiiho & Co. Advocates

Respondent represented by Spero Advocates

**BACKGROUND:**

This is an application brought by Notice of Motion under Order 43 Rule 2 & Order 52 Rule 1 of the Civil Procedure Rules, Section 33 of the Judicature Act and section 98 of the Civil Procedure Act seeking the following orders:

1. The applicant be allowed to file an amended memorandum of appal in Civil Appeal No. 15 of 2023. 2. The costs of the application abide the outcome of the appeal.

The grounds of the application as contained in the affidavit of a one Kafero Norbert, the Applicant state that:

1. The Applicant was the unsuccessful party in CS No.0033 of 2021 (Bwera Magistrates Court). 2. Aggrieved by the decision of the Court, the Applicant personally filed Civil Appeal No. 15 of 2023. 3. The Applicant later instructed Nyakaana-Mabiiho & Co. Advocates to prosecute the appeal. 4. It was discovered that the grounds of appeal as framed by the Applicant would not bring out well the Applicant's grievances and would prejudice the presentation of the appeal. 5. That it is in interest of justice that this application be allowed.

In response to the application the Respondent filed an Affidavit in Reply sworn by one Masika Harriet who stated that the Application was incurably defective having been served outside of the 21 days prescribed by law. It was further stated that the Notice of Motion was endorsed and sealed by the Court on 10th October 2024 and served on the Respondent on 13th November 2024. It was further stated without prejudice to the preliminary objection that the application was filed belatedly after a full year without the Applicant seeking extension of time. The Applicant while unrepresented at time of the filing the appeal was literate and able to articulate the grounds for his appeal and that furthermore the intended amended Memorandum of Appeal raises no point of law and serves to substantially change the appeal in matters of fact and evidence.

It was further stated that the application is brought in bad faith to beef up the already frivolous appeal and was intended to buy time. The deponent prayed to court to dismiss the application or in the alternative if the application were to be allowed then the Applicant be required to meet the costs of the Application.

In accordance with Order 15 Rule 2 of the Civil Procedure Rules, I shall first address the point of law raised by the Respondent before proceeding into the merits of the Application.

**PRELIMINARY ANALYSIS:**

Counsel for the Respondent raised a preliminary objection to the effect that the service of the Application was effected after the mandatory 21 days for service had passed and that to that extent the Application was incurably defective and should be struck out. Counsel submitted that the application was filed in court on 5th August 2024 and then endorsed and sealed by the Deputy Registrar of this Court on 10th October 2024. Counsel then pointed out that service of the application on the Respondent was effected on 13th November 2024 after 33 days.

Counsel cited Order 49 Rule 2of the Civil Procedure Rules wherein it is provided that all orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons. Counsel further cited Order 5 Rule 1(2) of the Civil Procedure Rules which provides that service of summons shall be effected within 21 days from the date of issue, except that the time may be extended on an application to the court made within 15 days after the expiration of the 21 days, showing sufficient reasons for the extension.

In his submissions, Counsel cited the Supreme Court case of **Kanyabwera -Vs-Tumwebaze [2005] 2 Ε.Α 86, 94** wherein it was held that provisions relating to service are not a mere procedural technicality but one of substantive law. Counsel further cited the case of **Bitamisi Namuddu -Vs- Rwabuganda Geoffrey - SCCA No. 016 OF 2014** wherein the Court held as a matter of law that failure to effect service in accordance with the provisions of Order 5 Rule 1 of the Civil Procedure Rules renders the application defective, which position was followed in the case of **Fredrick James Jjunju And Another -Vs- Madhivani Group Ltd And Another, HCMA No. 688 of 2015**.

Counsel further cited the case of **James Andate Okanya -Vs- New Vision Printing And Publishing Company Ltd, HCMC No. 250 of 2021**, in which the Court cited **Ejab Family Investment and Trading Company Ltd -Vs- Centenary Rural Development Bank Ltd, HCCS No. 001 OF 2004**in support of the fact that non-compliance with Order 5 Rule 1 rendered an application defective. Counsel subsequently called for Court to dismiss the Application with costs to the Respondent.

On the other hand, Counsel for the Applicant argued in reply to the Preliminary objection that when the appeal last came up in court on 15th October 2024, Court was informed that the Notice of Motion had not yet been assigned a date. Counsel therefore submitted that it is not true or it could not have been possible for the Notice of Motion to have been endorsed before 15th October 2024. However Counsel went on to note that according to the Affidavit in rejoinder deponed in this matter Brian Muheirwe, the Legal Clerk for Counsel for the applicant had not been able to access the signed Notice of Motion until 13th of November 2024 for service on the Respondent.

Counsel further submitted that considering the fact that the matter had been before Court and Counsel had raised the concern of the Notice of Motion staying longer than usual to be endorsed, and furthermore considering the fact that Court set schedules for filing relevant documents, and specifically the affidavit and submissions in rejoinder, it would be in the interest of justice that the objection by Counsel for the Respondent be disregarded and the application is heard on its merits.

Counsel for the Respondent went on to submit that he disagreed with the presupposition as stated by Counsel for the Respondent in his submissions that the provisions of Order 5 Rule 1(2) of the Civil Procedure Rules take away the inherent powers of court to give remedies to the parties to a matter before it in the interest of fairness and justice. Counsel cited Article 126(2)(e) of the Constitution which enjoins this Court to administer substantive justice without undue regard to technicalities. Counsel noted that failure to serve the Notice of Motion was not as a result of negligence or default on part of the Applicant or his counsel, but was partly due to miscommunication between the Clerk responsible for effecting service and the Registry staff.

Counsel for the Applicant concluded by praying that in the interest of administration of substantive justice and furthermore within the inherent powers of this Court, the objection by Counsel for the Respondent be overruled.

I have addressed my mind to the submissions of both Counsel concerning this objection and I have also had the benefit of looking at the Court record. Before I proceed to address the point of law I must clarify that this Court never set schedules for submissions in this Application prior to the date of hearing of the Application. The reference by Counsel to the pronouncements of this Court on setting schedules for submissions related to 18th of December 2024 when the Court gave timelines for schedules for submissions in relation to the substantive appeal and not the interlocutory application.

As concerns the service of the Application the record shows that it was filed on 5th October 2024 and was subsequently endorsed by the Deputy Registrar on 15th October 2024. The date may not appear clear on the Notice of Motion but what is not in dispute is that the Applicant maintains that it was 15th October 2024 while the Respondent maintains that it was endorsed and sealed on 10th October 2024. Given the apparent confusion in terms of how the date of endorsement was captured, I accord the Applicant the benefit of the doubt and deem the Application to have been endorsed by the Registrar on the 10th October 2024.

A simple computation of the number of days from the 10th day of October 2024 up to the 13th day of November 2024 when the Respondent would mean that the last day on which the Respondent should have been served was 31st October 2024.

Order 5 Rule 1(2) of the Civil Procedure Rules in the context of Order 49 Rule 2 provides that service of Notices of Motion shall be effected within 21 days from the date of issue except that time may be extended for 15 days after the expiry of the 21 days upon application to Court with sufficient reasons.

In this matter, it is clear that the Applicant did not apply for an extension of time. The reasons advanced to explain the delay of service in response to the preliminary objection are misconceived as the law clearly provides for the same to be advanced upon application to Court for extension of time.

The effect of non-compliance with Order 5 Rule 1(2) of the Civil Procedure Rules is very clear. Order 5 Rule 1(3) provides that where summons have been issued under this rule and service has not been effected within 21 days from the date of issue; and there is no application for an extension of time under sub-rule (2) of this rule; or the application for extension of time has been dismissed, the suit shall be dismissed without notice.

I have considered the argument by the Counsel for the Respondent for this Court to exercise its inherent powers in light of Article 126(2)(e) of the Constitution and overrule the preliminary objection. However, this Court is expected to exercise its inherent powers judiciously which means that even when applying the Constitutional standard of substantive justice without undue regard to technicalities, the said standard must apply to both parties and not simply to one party to the detriment of another. In the case of **Byaruhanga & Co. Advocates v. Uganda Development Bank - SCCA No. 2 of 2007**, the Supreme Court held that,

*"A litigant who relies on the provisions of Article 126 (2) (e) of the Constitution must satisfy the court that in the circumstances of the particular case before the court it was not desirable to have undue regard to a relevant technicality. Article 126 (2) (e) is not a magical wand in the hands of defaulting litigants."*

By the holding above, it is clear that reliance on Article 126(2)(e) of the Constitution is not an automatic shield against relevant technicalities. The litigant must satisfy court that the technicality raised is outweighed by substantive justice inherent in the merits of the suit. In the instant application I find no basis upon which to disregard the failure to serve the Notice of Motion in time. Even when the legal clerk from the chambers of Counsel for the Applicant discovered the Notice of Motion on 13th November 2024, the Applicant still had a remedy under Order 5 Rule 1(2) of the Civil Procedure Rules to apply for extension of time. However, this remedy was clearly never exercised. To extend the application of Article 126(2)(e) to the Applicant in this matter when he had a remedy available under Order 5 Rule 1(2) that he failed to exercise is not in my view consistent with the true spirit of Article 126(2)(e) of the Constitution.

Article 126(2)(e) of the Constitution must be applied judiciously and with due regard the time-honoured maxim in equity to the effect that equity aids the vigilant and not those who slumber on their rights.

It should also be remembered that the point of placing limitations in terms of bringing actions in civil proceedings is not simply to inconvenience litigants but to protect those against whom litigation is commenced from endless litigation as well as guarding the Courts from being inundated with dormant matters.

It is on the basis of the above that I uphold the preliminary objection and rule that the application fails.

**ORDER:**

This Application is accordingly dismissed with costs to the Respondent in accordance with Order 49 Rule 2 and Order 5 Rule 1(3)(a) and 1(3)(b) of the Civil Procedure Rules.

I so order.

Ruling delivered this 20th day of February 2025.

**David S. L. Makumbi**

**JUDGE**