[2025] UGHC 190

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO. 87 OF 2023 (ARISING FROM CIVIL SUIT NO. 0017 OF 2006) (ARISING FROM CIVIL APPEAL NO. 0291 OF 2023)**

## **LUKOMA KWEGATTA RANCHING COMPANY LTD ::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

## **KAMUHANDA JOSEPH & 48 ORTHERS::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

## **Before: HON JUSTICE LAWRENCE TWEYANZE**

## **RULING**

## **The Application.**

- 1. The Applicant brought this Application under Section 98 of the Civil Procedure Act and Order 52 rule 1 & 2 of the Civil Procedure Rules, seeking for orders that: - Execution of the decree/decision in the High Court Civil Suit No. 017 of 2006 be stayed pending the hearing and determination of Civil Appeal No. 291 of 2023 pending hearing before the Court of Appeal. That the costs of this Application be provided for. - 2. The grounds of the Application are contained in the Affidavit of Bugingo Paul who is said to be the Chairperson of the Applicant and these grounds are: - That the Respondents have now initiated execution proceedings against the Applicant where they have moved the Registrar of Titles to enforce the Decree appealed against to cancel the Certificate of Title. That the appeal pending before the Court of Appeal has got high prospects of success because it involves serious questions of law and fact, which the lower Court did not address. That if the execution is not stayed the appeal shall be rendered nugatory and the Applicant will suffer injustice. - 3. There is no any affidavit in reply filed in Court to oppose the Application, and there is no proper justification for this. Counsel for the 2nd Respondent, Mbabali Firiginado only filed submissions by Ms/ Melchi Advocates and Counsel for the other Respondents Siima Advocates only filed submission but no any affidavit in reply, and in the submissions they averred that they were not served. There is an affidavit of service filed by Jonathan Patrick Byandhala a Legal Assistant of M/s Lawrence Tumwesigye & Co. Advocates who stated that on the 18th day of September 2023, he received the original copies of the Applicant 's Notice of Motion in Miscellaneous Application No. 87 of 2023 from High Court of Masaka to be served upon the

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Respondents. He deponed that he served the Respondents with a copy of the Notice of Motion on the 8th day of November 2023. I have looked at the return copy that is attached to the affidavit of service and it shows a stamp of Silicon Advocates dated 8th November 2023, signed by a one Brillian. It is not clear how the Applicant came to a conclusion that Silicon Advocates is the Law Firm for the Respondents, and also there is no reason stated why the Application was served on the 8th November 2023, when the same was said to have been taken out on the 18th day of September 2023, which was approximately after 52 days. In the judgment in Civil Suit No. 0017 of 2006 from which this Application arises, it is clear that the Law Firm that represented the Plaintiffs who are now the Respondents, was M/s Rwakafuuzi & Co. Advocates, and there is no reasonable explanation why the said service was made to Silicon Advocates. Court is therefore not satisfied that there was effective service upon the Respondents, and this Application ought to be struck out for non-service at this stage. However, I find it pertinent to address the law on service of summons and Applications within the required timelines in case it turns out that Silicon Advocates was the proper Law Firm for the Respondents.

- 4. In this case the Applicant served the Notice of Motion on Silicon Advocates after the mandatory 21 days without seeking leave of Court for an extension of time within which to serve. Order 5 Rule 1 (2) of the Civil Procedure Rules provides that: "*Service of summons issued under sub- rule 1 of this rule shall be effected within twenty-one days from the date of issue, except that the time may be extended on an Application to the Court, made within fifteen days after the expiration of the twenty-one days showing sufficient reasons for the extension"***.** - 5. The timelines that apply to the service of summons in an ordinary Plaint also apply to the service of Applications like the one before this Court. The provision in Order 5 Rule 1(2) of the Civil Procedure Rules automatically invalidates summons which may have been issued and are not served within twenty-one days from the date of issuance. It is settled law that the provisions of Order 5 Rule 1(2) of the Civil Procedure Rules are mandatory and should be complied with. An Applicant who fails to serve summons in the Application within the stipulated 21 days from the date of issuance of the summons upon him or her for service is required to make a formal Application within 15 days after the expiration of the 21 days for an extension of the time within which to serve the summons on the opposite party under Order 5 rule 32 of the Civil Procedure Rules. The Application must be made by summons in chambers. - 6. The Court must be satisfied by evidence on the said Application and should clearly state the reason for permitting the Applicant to effect service beyond the stipulated period. In the instant case, the record indicates that the Notice of Motion was endorsed by Court on the 10th day of October 2023, and it should have been served on the Respondents within 21 days from the date of issuance. However, the firm Silicon Advocates which is said to be for the Respondents was only served on the 8 th


November 2023. Clearly this is after 30 days from the date when the Application was endorsed, was still beyond the required 21 days. There was no Application for an extension of time within which to effect service on the Respondents. Therefore, the service of the Application of the 8th day of November 2023 was out of time.

- 7. In reaching this decision I am fortified by the decision of Hon. Justice Steven Mubiru in the case of *Rashid Abdul Karim Hanali and another Vs Suleiman Adri Arua HCMA 0 0000 of 2017 Arising from CS NO, 01 of 2017* where the Court observed that, non compliance with the requirement for renewal of summons to file a defence is considered a fundamental defect rather than a mere technicality and it cannot be cured by inherent powers since issuance and service of summons to file a defence goes to the jurisdiction. A similar position was held by Hon Justice David Wangutusi in *Sam Akankwansa Vs United Bank of Africa in HC MA NO. 1233 of 2017 Arising from CS N0.391 of 2017*. - 8. In view of the above, it is my finding that service of the Application on 8th day of November 2023 if at all it was done, on the Respondents was out of time, since the Application had been issued on the 10th October 2023. The process of service contravened Order 5 of the Civil Procedure Rules. Also, Court was not satisfied that there was any effective service on the Respondents. Consequently, this Application, in Miscellaneous Application No. 87 of 2023 is stuck out as against the Respondents with no orders as to costs since no Affidavit in reply was filed in this Court. I make the following orders: - a. This Application in Miscellaneous Application No. 87 of 2023 is stuck out as against the Respondents. - b. No orders as to costs.

It is so ordered.

Ruling signed and delivered electronically at Masaka this 18th day of April, 2025


**LAWRENCE TWEYANZE JUDGE. 18th April, 2025.**