[2025] UGHC 436

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA MISCELLANEOUS APPLICATION 184 OF 2024**

**(FROM COURT OF APPEAL CIVIL APPEAL 181 OF 2015, HIGH COURT CIVIL APPEAL 73 OF 2014 )**

- **1. KAGINA PAUL** - **2. MUSHERURWE TIMOTHY** - **3. KAZINDUKI PHOEBE ------------------------------------------------- APPLICANTS** - **4. NTARIRWA APPOLLO**

**(Administrators of the estate of the late Alfred and Hilda Mutashwera)**

# **VERSUS**

**TUSIIME AMBROSE ------------------------------------------------------ RESPONDENT (Administrators of the estate of the late David and Conatance Ryangombe)**

**BEFORE:** Hon. Justice Nshimye Allan Paul M.

## **RULING**

## **BACKGROUND**

The applicants filed an Application on 8th May 2024 was brought by way of a Notice of Motion under Section 98 of the Civil Procedure Act Cap 71 and Order 1 Rules 13 of the Civil Procedure Rules (CPR) SI 71-1. The application was endorsed by the Deputy Registrar on 9th May 2024.

The respondent filed an affidavit in reply on 18th July 2024, wherein he averred in paragraph 3 that the application abated due to nonservice. He claimed that summons were issued on 9th May 2024 and served on 1st July 2024. The respondent then raised a preliminary objection.

### **SUBMISSIONS**

The parties filed written submissions. I will first address the preliminary objection raised by the respondent.

## **Respondent's submissions**

Counsel for the respondent raised a preliminary objection that summons were issued on 9th May 2024 and served on 1st July 2024, which was outside the time prescribed in the rules. He relied on the case of **Ejab Family Investment &** **Anor Vs Centenary Bank & Anor Civil Suit 1 Of 2014** in support of his argument that service had to be done in accordance to order 5 rule 1(2) of the Civil Procedure Rules. Counsel prayed that the application be dismissed for having been served outside the time prescribed in the rules.

## **Applicant's submissions**

Counsel for the respondent argued that the preliminary objection is misconceived, she stated that summons were served on 27th May 2024 at the respondent's residence in Ishanyu. That later the notice of motion was served on the respondent's lawyers on 1st July. Counsel also raised Article 126 (2)(e) of the Ugandan Constitution, arguing that substantive justice be done without technicalities.

## **DETERMINATION**

I will first consider the preliminary objection raised by the Respondent's counsel. He contended that the Application was served out of time without seeking extension of time by the Court, thereby making it incurably defective.

In principle, a Notice of Motion has to be served in accordance with the provisions of Order 5 rule 1 (2) CPR as stipulated in Order 49 Rule 2 CPR.

Order 5 Rule 1 (2) of the CPR provides that;

*"Service of summons issued under subrule (1) of this rule shall be affected within twenty-one days from the date of issue; except that the time may be extended on application to the court, made within fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the extension".*

Order 49 Rule 2 of the CPR provides that;

*"Orders and notices how served. 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."*

This means that a Notice of Motion by implication of Order 49 Rule 2 of the CPR ought to be served within 21 days stated in Order 5 Rule 1 (2) of the CPR.

The evidence on court record shows that HCMA 184 of 2024 was endorsed by the Deputy Registrar ready for service on 9th May 2024. It is not in doubt as admitted by both the applicants and respondent's submissions that the respondent's lawyers were served on 1st July 2024 (see paragraph 4 of the 1st respondent's affidavit in reply and annexture B to that affidavit with a copy of a stamped notice of motion)

Counsel for the applicant submitted that service of the application was first done by Agaba Joel on 27th May 2024 (See paragraph 2 of the applicant's submission in rejoinder). I have studied the affidavit of service made by Agaba Joel, where he states that he served the copies of the notice of motion on 27th June 2024 (see paragraph 2 & 3 of Agaba Joel's affidavit of service)

In my analysis I note the following:

- 1. The affidavit of service made by Agaba Joel does not state that he served the respondent. It falls short of the evidence that service was made on the respondent. - 2. The process server averred that he served on 27th June 2024, yet counsel in her submissions stated that service was made on 27th May 2024. This is a contradiction in the date of service.

The date of service stated in the process server's affidavit of service which is stated as 27th June 2024, and the date of 1st July 2024 that both agree was the date that the respondent's lawyers were served, are all beyond the 21 days stipulated in the law in Order 5 Rule 1 (2) CPR when counted from 9th May 2024.

The evidence on court record shows that the applicants did not serve the application within the prescribed time stipulated in the law in Order 5 Rule 1(2) CPR. There is no evidence that the applicants filed an application seeking for an extension of time as is procedurally advised in Order 5 Rule 1(2) CPR.

I therefore find that HCMA 184 of 2024 is subject to summary dismissal under Order 5 Rule 1(3) CPR.

In conclusion, I order that

- 1. HCMA 184 of 2024 is dismissed under Order 5 Rule 1(3) CPR. - 2. No order as to costs is made.

MARTZ **NSHIMYE ALLAN PAUL M.**

JUDGE 18-06-2025