[2025] UGCommC 64

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **MISCELLANEOUS APPLICATION NO. 0828 OF 2024** [ARISING OUT OF CIVIL SUIT NO 1121 OF 2022] KANANURA DANIEL:::::::::::::::::::::::::::::::::::: **VERSUS**

$\mathsf{S}$

### **1. HOUSING FINANCE BANK**

# <table> 2. SCOT MUKUNDE::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI**

#### **RULING**

This application was brought by notice of motion under Order 46 Rules 1, 2 & 8 of 15 the Civil Procedure Rules(CPR), Order 52 Rules 1, 2 & 3 of the CPR, sections 82 & 98 of the Civil Procedure Act (CPA) and Sections 14 & 33 of the Judicature Act for orders that an order of abatement dated the 22^nd of August 2023 be reviewed and set aside, civil suit no. 1121 of 2022 be reinstated and heard interparty and costs of this application be provided for.

This application was supported by the affidavit of Kananura Daniel, the applicant and opposed by the affidavit in reply of Africano Bigirwaruhanga, the manager litigation and recovery of the $1^{st}$ respondent.

#### **BACKGROUND**

The applicant filed civil suit no. 1121 of 2022 against the respondents for breach of 25 contract and unlawful auction of land, and the suit was abated by the trial Judge on the 22^nd of August 2023 for the failure of the applicants to take out summons for directions.

The applicant now seeks for the review and setting aside of the abatement order and an order for reinstatement of civil suit no. 1121 of 2022. The applicant contends that the suit was abated during the pendency of miscellaneous applications nos. 447 and 446 of 2023, which were applications for an interim and temporary injunction, respectively. The applicant further contends that it could not fix civil suit no. 1121 of 2022 before the trial Judge before the main application in miscellaneous

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application no. 446 of 2023 was determined by the Deputy Registrar. The applicant contends that the said abatement infringes on his constitutional rights to a fair 35 hearing and that the suit was abated in error and, therefore, the order of abatement should be set aside and civil suit no. 1121 of 2022 reinstated.

The 1^st respondent contends in their defence that upon being served with the plaint by the applicant on the 18^th of January 2023, they filed their defence on the 2^nd of February 2023 and to their dismay, no action took place on the case until the 22^nd of 40 August 2023 when the same was abated by the trial Judge. The 1^st respondent contends that the applicant's remedy under the law is to file a fresh suit subject to the law of limitation and that the applicant's affidavit does not in any way disclose an error apparent on the face of the record. 45

### **REPRESENTATION**

The applicant was represented by M/s Barungi, Baingana & Co Advocates, whereas the defendants were represented by M/s Nangwala, Rezida & Co Advocates.

### **DECISION**

I have read and addressed my mind to the pleadings of the parties and submissions of counsel in this matter and the main issue for consideration is whether the order 50 for abatement in civil suit no. 1121 of 2022 was made in error by the trial Judge and should, therefore, be set aside and the suit reinstated for hearing interparty.

Order XIA rule 1(2) of the CPR provides for the requirement of extracting summons for directions thus: 55

"Where a suit has been instituted by way of a plaint, the plaintiff shall take out summons for direction within 28 days from the date of the last reply or rejoinder referred to in rule 18(5) of Order VIII of these Rule".

Under order XIA rule 1(6) of the CPR, a suit abates where the plaintiff fails to take out summons as prescribed in Order XIA rule 1(2).

Order XIA rule 1(4) of the CPR provides for five exceptions to the rule on taking out summons for directions within 28 days thus:

*a) "an action in which the plaintiff or counterclaimant has applied for a default* judgment under Order IX rules 6 and 7, summary judgment under Order XXXVI or where application for leave to file a defence under Order XXXVI is *refused;*

Onf

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- b) an action in which the plaintiff or defendant has applied under Order VI rules 29 or 30 or Order XV rule 2 for determination of the suit on a point or points of law; - c) an action in which an order for the taking of an account has been made under $\frac{d}{dt}$ Order XX: - d) an action in which an application for transfer to another division, court or tribunal has been made; or - *e) an action in which a matter has been referred for trial to an official referee* or arbitrator".

# Order XIA rule 1(5) of the CPR provides for a sixth exception to wit:

"In a case where discovery of documents is required to be made by any of the parties, the period of 28 days referred to in paragraph (2) may be extended either by order of court or on application of either party to the suit".

In the instant case, the trial Judge abated civil suit no. 1121 of 2022 for the failure 80 of the plaintiffs/applicants to take out summons for directions. It should be noted that upon the respondents filing their written statement of defence on the 2^nd of February 2023, the applicants did not take any steps to prosecute their case /take out summons for directions. This court only abated the suit on the 22^nd of August, 2023, which was 200 days after the date of the filing of the last pleading. 85

The applicants now seek a review of the abatement order and reinstatement of the suit on the grounds that there was a pending application for a temporary injunction before the deputy registrar.

Though it is indeed true that there was an application for temporary injunction pending before the registrar vide miscellaneous application no. 446 of 2023, the pendency of an application for a temporary injunction does not fall within the exceptions stipulated under order XIA rule 1(4) and Order XIA rule 1(5) of the CPR. This, therefore, means that the applicant was required to take out summons for directions within 28 days from the date of the last reply. The failure to take out summons for directions within 28 days, therefore, led to the abatement of the suit.

The trial Judge was, therefore, right in abating the suit pursuant to Order XIA rule $1(6)$ of the CPR.

Order XIA rule 1(7) of the CPR provides for the remedy to a party whose suit has abated. It states that:

"Where a suit has abated under sub rule (7), the plaintiff may, subject to the law of 100 limitation, file a fresh suit".

The court agreed with this order in the case of Kamoga Nicholas v Nabukeera Robina HCMA No. 3696 of 2023, where Honorable Justice Tadeo Asiimwe stated that:

"The position of the law is clear on cases dismissed under abatement. The remedy 105 available to a party whose case has been abated lies in filing a fresh as per Order 11 A rule 7 of the CPR as amended. The case of Abdul Ddamulira v Xsabo Power Limited HCMA No.046 of 2021 supports the above position where it was held that the remedy once the suit abates under O. XIA Rule 7 of the Civil Procedure Rules as amended is to file a fresh suit subject to the law of limitation". 110

In the circumstances, the only available remedy to the applicant is to file a fresh suit and not to file any application for review or reinstatement.

This application is, therefore accordingly, dismissed with costs to the respondents.

Mr. Britate

HON. LADY JUSTICE ANNA B. MUGENYI DATED...................................

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