[2025] UGCommC 179

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 1856 OF 2024 (ARISING OUT OF CIVIL SUIT NO. 277 OF 2019)** 10 **MUKWANO ENTERPRISES LIMITED :::::::::::::::::::::::::::::::: APPLICANT VERSUS 1. SENINDE MIRIAM**

# **2. KIBALAMA LIZ T/A LISE GENERAL MERCHANDISE AND SUPPLIES ::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

15 **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

#### **RULING**

### Introduction

This application was brought by way of Notice of Motion under **Order 6 rule 25 and Order 52 rules 1 and 3 of the Civil Procedure Rules, S1**

- 20 **71 - 1,** seeking orders that: - 1. The Respondents' amended plaint filed in Court on 9th September, 2024, be struck off the record. - 2. Costs of this application be provided for. - 25 Background

The background of the application is contained in the affidavit in support deponed by **Ms. Nilusha Meghani,** the Property Manager of the Applicant, and is summarized below:

1. That on 15th August, 2024, this Court issued a ruling session notice 30 to the Respondents in this matter, scheduling the ruling in the

- 5 Respondents' matter *Misc. Application No. 662 of 2023* for amendment of the plaint. - 2. That on 19th August, 2024, the Court delivered the ruling granting the Respondents permission to amend their plaint. - 3. That the 14-day limit for the Respondents to amend their plaint expired on 2nd September, 2024. - 15 4. That the Respondents, without leave of the Court, filed an amended plaint on the Court record on 9th September, 2024, out of time. - 5. That the Respondents have engaged in dilatory conduct, sat on their 20 rights and have only themselves to blame, and the law dictates that the Respondents' amended plaint be struck out.

In reply, **Ms. Seninde Miriam,** the 1st Respondent in this matter, opposed the application, contending that:

- 1. In 2023, the Respondents filed an application vide *Misc.* 25 *Application No. 662 of 2023* to amend the plaint in *Civil Suit No. 277 of 2019*. - 2. On 9th July, 2024, *Misc. Application No. 662 of 2023* came up for hearing in the presence of the Respondents' Counsel, 30 Turyamuhebwa Francis of M/s Kasolo & Khiddu Advocates, as well as Counsel for the Applicant, Mr. Simon Tendo Kabenge, and the Applicant's Company representative. That the matter was adjourned to 10th September, 2024, for delivery of the ruling. - 3. On 6th September, 2024, her lawyers discovered that the ruling had been delivered on 19th August, 2024, in their absence, and uploaded on ECCMIS.

5 4. The change of the date of the ruling was not communicated to the Respondents' Counsel despite having an ECCMIS account and email address; [kasolo@kasolokhidduadvocates.com.](mailto:kasolo@kasolokhidduadvocates.com)

5. After knowing about the ruling, the Respondents' Counsel filed the 10 amended plaint on 6th September, 2024.

- 6. On 10th September, 2024, both Counsel appeared before the trial Judge, but Counsel for the Applicant did not raise any issue 15 regarding the late filing. - 7. The failure to file the amended plaint within time was a result of nonservice of the ruling notice and changing the earlier communicated ruling date. - 8. The Respondents' amendment is crucial to their case since it deals with the residual claims in the partial consent, which has never been set aside, and a miscarriage of justice will be occasioned if it is struck 25 out.

In rejoinder, **Ms. Nilusha Meghani,** the Applicant's Property Manager, contended that:

- 1. The Respondents' affidavit in reply is riddled with falsehoods because *Misc. Application No. 662 of 2023* came up for hearing 30 on 25th September, 2023. The parties were given schedules for submissions and the matter was adjourned for ruling on notice. - 2. Throughout *Misc. Application No. 662 of 2023,* the Respondents were always represented by Mr. Michael Mayambala as indicated on 35 ECCMIS. - 3. The notice of the ruling was issued on ECCMIS, and a notification of the same was sent to [michaelmayambala@gmail.com,](mailto:michaelmayambala@gmail.com) therefore, the

5 Respondents were properly notified of the ruling but chose not to attend.

#### Representation

The Applicant was represented by **M/s Simon Tendo Kabenge Advocates** while the Respondents were represented by **M/s Kasolo & Khiddu**

10 **Advocates**.

Both parties filed their written submissions and the same have been considered by this Court.

Issues for Determination

Following **Order 15 rule 5(1) of the Civil Procedure Rules** and the case

- 15 of *Oriental Insurance Brokers Ltd Vs Transocean (U) Limited SCCA No. 55 of 1995*, this Court rephrased the issues to read as follows: - 1. Whether the amended plaint vide *Civil Suit No. 277 of 2019* was filed out of time, and if so whether it should be struck off the record? - 2. What remedies are available to the parties? - 20 In its affidavit in rejoinder, the Applicant raised a preliminary objection to the effect that the affidavit in reply is riddled with falsehoods and therefore, should be struck off the record.

**Order 6 rule 28 of the Civil Procedure Rules**, is to the effect that a point of law that is pleaded when so raised is capable of disposing of the suit, 25 may by consent of the parties or by order of the Court on the application of either party, be set down for hearing and disposed of at any time before the hearing.

As to whether to dispose of a preliminary point first before hearing the merits of the matter, the Supreme Court, in the case of *Uganda Telecom*

- 5 *Ltd Vs ZTE Corporation, SCCA No. 3 of 2017*, held that a trial Court has the discretion to dispose of a preliminary point either at or after the hearing. However, the exercise of discretion depends on the circumstances of each case. It is therefore trite that where preliminary objections are capable of disposing of the matter in issue, it is judicious to determine the 10 objections before embarking on the merits of the case. - Guided by the above authorities, I shall proceed to resolve the preliminary point raised.

Whether the affidavit in reply is riddled with falsehoods?

## Applicant's submissions

- 15 Learned Counsel for the Applicant submitted that paragraphs 4, 5, 6, 7, 8, 10 and 11 of the affidavit in reply are blatant lies because, according to the Applicant's evidence under paragraph 2 of its affidavit in support, the Court issued a ruling scheduling notice in *Misc. Application No. 662 of 2023* for 19th August, 2024, at 10am, to both Counsel in an email notice. - 20 That for the Respondents, it was sent to [michaelmayambala@gmail.com](mailto:michaelmayambala@gmail.com), an email belonging to the Respondents' Counsel Michael Mayambala as per annexure **"A"** attached to the affidavit in support.

Further, that throughout the whole hearing of *Misc. Application No. 662 of 2023*, the Respondents were represented by Mr. Michael Mayambala 25 as reflected in the ECCMIS extracts, annexures **"N1"** and **"N2"** attached to the affidavit in rejoinder.

In conclusion, Learned Counsel prayed that the Court strikes off the record the Respondents' affidavit in reply for containing falsehoods.

#### 5 Respondents' submissions

Learned Counsel for the Respondents submitted that the contents of paragraphs 4, 5, 6, 7, 8, 10 and 11 of the Respondents' affidavit in reply are true and correct. That according to paragraph 4 of the affidavit in reply, the 1st Respondent referred to a hearing of *Misc. Application No. 662 of*

- *2023* that took place on 9th July, 2024, which was adjourned to 10th 10 September, 2024, for delivery of the ruling. Learned Counsel asserted that they wrote a letter dated 15th April, 2025, to the Deputy Registrar of this Honorable Court requesting for a certified record of proceedings in *Misc. Application No. 662 of 2023*, but that the same has not been availed. 15 To that, Learned Counsel added that the ECCMIS record clearly shows that there was a mention of *Civil Suit No. 277 of 2019* on 9th July, 2024, as per annexure **"B"**, a copy of the ECCMIS record of the sittings, and that the suit was for mention because *Misc. Application No. 662 of 2023* was scheduled for hearing on the same date, which is highlighted in - 20 paragraphs 4, 5, 6, 7, 8, 10 and 11 of the Respondents' affidavit in reply.

### Analysis and Determination

In the case of *Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Limited [1969] EA 696,* Justice Sir Charles Newbold stated that:

25 *"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."*

- 5 In the present facts, the Applicant's Counsel contended that paragraphs 4, 5, 6, 7, 8, 10 and 11 of the Respondents' affidavit in reply are blatant lies because they are contrary to the Applicant's evidence such as annexure "**A**" attached to its affidavit in support which is an email notice which was sent to the Respondents' Advocate's email 10 [michaelmayambala@gmail.com](mailto:michaelmayambala@gmail.com) belonging to Mr. Michael Mayambala - premised on which Learned Counsel asserted that the Court issued a ruling scheduling notice in *Misc. Application No. 662 of 2023.*

In my view, the determination of whether paragraphs 4, 5, 6, 7, 8, 10 and 11 of the Respondents' affidavit in reply are blatant lies because they are 15 contrary to the Applicant's evidence; will involve the analysis and

determination of the merits of the case. Therefore, this contention will be resolved during the determination of issue No. 1.

In the premises, this preliminary objection is overruled.

Issue No. 1: Whether the amended plaint vide *Civil Suit No. 277 of 2019*

20 was filed out of time, and if so whether it should be struck off the record?

Applicant's submissions

Learned Counsel for the Applicant submitted that the Respondents' amended plaint was filed on 9th September, 2024, outside the 14 days stipulated by law, which had expired on 2nd September, 2024, hence, it 25 ought to be struck off the Court record for being an illegality.

Learned Counsel quoted the case of *Hon. Sitenda Sebalu Vs Secretary General of the East African Community Ref. No. 8 of 2012*, where it was held that a judgment of the Court, if undischarged, must be obeyed.

Learned Counsel asserted that prior to Court issuing its ruling in *Misc.* 30 *Application No. 662 of 2023*, Court issued ruling notices to both

- 5 Counsel and specifically the email of [michaelmayambala@gmail.com](mailto:michaelmayambala@gmail.com), belonging to the Respondents' Advocate Michael Mayambala, informing both parties that a ruling in *Misc. Application No. 662 of 2023* would be delivered on 19th August, 2024, at 10am and that this is supported by the copy of the email notification addressed to both Counsel annexed to - 10 paragraph 2 of the Applicant's affidavit in support which the Respondents have failed to disprove of.

Learned Counsel further submitted that on 19th August, 2024, **Hon. Lady Justice Anna B. Mugenyi** delivered the ruling allowing the Respondents to amend their plaint vide *Civil Suit No. 277 of 2019* and that the 15 Respondents disobeyed Court's orders in the ruling vide *Misc. Application No. 662 of 2023,* when they without justifiable cause filed the amended plaint out of the time stipulated by law as rightly stated in paragraph 5 of the Applicant's affidavit in support of this application.

Learned Counsel also contended that the Respondents have no application 20 before this Honourable Court seeking an extension of time within which to file their amended plaint, and that therefore there is no amended plaint before the Court. Learned Counsel then referred the Court to the case of *UNEB Vs Mparo General Contractors, COS CR No. 99 of 2003.*

Further, Learned Counsel asserted that it was held in the case of *UTEX*

25 *Industries Vs Attorney General, S. C. C. A. No. 52 of 1995*, that the rules and timelines for filing pleadings are not technicalities and that they regulate the conduct of the Courts business and ensure not only fairness, but an orderly manner of disposal of cases. Learned Counsel further cited the case of *B. E. A. Timer Co. Vs Inder Singh Gill [1959] E. A 463 (CA-K)* 30 wherein it was held that, "leave of Court must be sought and procured, or else the amended plaint will be improperly before the Court and trial - 5 proceedings based upon such a plaint are incurably defective. Upon the foregoing, Learned Counsel asserted that in the absence of an application to enlarge time, the amended plaint is incompetent, having been filed out of time. - To that end, Learned Counsel for the Applicant asserted that a Court of 10 law cannot sanction that which is forbidden by law, and once an illegality is brought to the attention of the Court, it overrides all questions of pleadings, including any admissions made thereon as per the case of *Makula International Ltd Vs Cardinal Nsubuga & Anor [1982] HCB 11.* - 15 Respondents' submissions

Learned Counsel contended that they were not notified of the change in the date of delivery of the ruling because there was no effective service of the ruling notice for the ruling that was delivered on 19th August, 2024. Learned Counsel recounted paragraph 4 of the Respondents' affidavit in 20 reply, where it is averred that *Misc. Application No. 662 of 2023* had been adjourned to 10th September, 2024, for a ruling. Learned Counsel asserted that the firm's address of [kasolo@kasolokhidduadvocates.com,](mailto:kasolo@kasolokhidduadvocates.com) as registered on ECCMIS, was never notified of the new ruling date as per annexure **"C"** of the Respondents' affidavit in reply, showing the firm's 25 ECCMIS profile.

Learned Counsel contended that the Applicant's argument that Mr. Mayambala Michael was notified does not equate to effective service, as the firm's registered address referenced above was known to ECCMIS and that the said argument does not suffice, as Mr. Michael Mayambala was 30 not practicing at the said firm in 2024 as stated in annexure "**C**" attached to the affidavit in reply.

- 5 Learned Counsel also submitted that Turyamuhebwa Francis was the one representing the firm at the time in *Civil Suit No. 277 of 2019* and *Misc. Application No. 662 of 2023.* To that, Learned Counsel contended that the absence of a notification on their firm's official address proves that there was no effective service on the firm of M/s Kasolo & Khiddu - 10 Advocates.

Counsel quoted the case of *Geoffrey Gatete & Another Vs William Kyobe, Supreme Court C. A No. 7 of 2005*, where the Court relied on the Oxford Advanced Learner's Dictionary to define the word effective to mean "having the desired effect; producing the intended result".

15 Learned Counsel submitted that the service of the ECCMIS notification to M/s Kasolo & Khiddu Advocates would only be deemed effective and achieve the desired results if they were notified on their ECCMIS registered email of [kasolo@kasolokhidduadvocates.com](mailto:kasolo@kasolokhidduadvocates.com).

In conclusion, Learned Counsel submitted that because of the ineffective 20 service, the Respondents were late to discover the delivery of the ruling and immediately filed the amended plaint upon learning of the same.

## Analysis and Determination

I have considered the application, the affidavit in reply, the affidavit in rejoinder, the parties' submissions, and the relevant authorities cited.

## 25 **Order 6 rule 25 of the Civil Procedure Rules,** stipulates that:

*"If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is limited by the order then within fourteen days from the date of the order, he or she shall not be permitted to* 30 *amend after the expiration of such limited time as aforesaid or the*

5 *fourteen days, as the case may be, unless the time is extended by the Court."*

In the present case, it is undisputed that the ruling in *Misc. Application No. 662 of 2023* was delivered on 19th August, 2024. Therein, the Respondents were granted leave to amend their plaint. According to the 10 said ruling, annexure **"B"** attached to the affidavit in support, no time limit was given and therefore, the Respondents ought to have filed their amended plaint within 14 days from the date of the order. However, according to the Court record, the amended plaint was filed on 6th September, 2024, and served on the Applicant on 9th September, 2024.

- 15 The Respondents do not dispute having filed the amended plaint out of time but contend that they were not aware of the change of the date of delivery of the ruling since the Court had communicated that the same, would be delivered on 10th September, 2024. - To that, the Applicant contends that the ruling was scheduled to be 20 delivered on notice but on 15th August, 2024, the Court issued a ruling session notice via email as per annexure **"A"** attached to the affidavit in support, an ECCMIS notification, showing that the ruling in *Misc. Application No. 662 of 2023* was to be delivered on 19th August, 2024.

The Respondents now contend that they never received the said 25 notification on their email address registered with ECCMIS and that they only got to know about the ruling on 6th September, 2024, to which they filed the amended plaint.

On the other hand, the Applicant avers that the Respondents were served with the ruling session notice through their email address 30 [michaelmayambala@gmail.com.](mailto:michaelmayambala@gmail.com)

5 The Respondents disputed this allegation, contending that their registered address is [kasolo@kasolokhidduadvocates.com.](mailto:kasolo@kasolokhidduadvocates.com)

According to the ECCMIS notification, annexure **"A"** attached to the affidavit in support, a copy of the ruling session notice was sent to [michaelmayambala@gmail.com](mailto:michaelmayambala@gmail.com) . Counsel for the Applicant explained that

10 the ruling session notice was sent on the said email because Counsel Michael Mayambala, as per the Court record, was in personal conduct of the Respondents' case before **Hon. Lady Justice Anna B. Mugenyi**.

I have perused the pleadings in *Misc. Application No. 662 of 2023* on the Court record, and established that the Respondents' (the Applicants

15 therein) pleadings, were drawn and filed by M/s Kasolo & Khiddu Advocates.

Also, according to the Court record, on 25th September, 2023, the Respondents were represented by Counsel Michael Mayambala and therein, the trial Judge stated that the ruling would be on notice. This

20 position was maintained in the subsequent hearings/mentions/sittings of 29th February, 2024, 26th March, 2024 and 9th September, 2024, wherein the matter was adjourned to 10th September, 2024. Therefore, the ruling date was changed from 10th September, 2024, to 19th August, 2024.

As to whether the Counsel for the Respondents received the notice of 25 change of the ruling date; the Applicant avers that they were duly served with the notice via email but on the other hand, the Respondents contend that they never received the same.

According to annexure **"A"** attached to the affidavit in support, the ruling session notice was sent to [michaelmayambala@gmail.com](mailto:michaelmayambala@gmail.com) the 30 Respondents' Counsel's email, among others. The Respondents dispute

5 the said email on the basis that their ECCMIS registered email address is [kasolo@kasolokhidduadvocates.com.](mailto:kasolo@kasolokhidduadvocates.com)

I have reviewed the ECCMIS file and under the parties and related User; the Respondents, on 9th November, 2022, registered **Mayambala Michael,** Email Address as [michaelmayambala@gmail.com](mailto:michaelmayambala@gmail.com) and the phone number

10 as 709253038 as a related User, and not the email address of [kasolo@kasolokhidduadvocates.com](mailto:kasolo@kasolokhidduadvocates.com) as alleged.

On the Applicant's part and related User side, I have found that it bears two registered related Users, that is; User Ellis Kasolo, email: [kasolo@kasolokhidduadvocates.com](mailto:kasolo@kasolokhidduadvocates.com) and contact as No. 752760049

15 registered on 15th March, 2022 and User Simon Tendo Kabenge Advocates, email as [simontendo@gmail.com](mailto:simontendo@gmail.com) and contact as No. 701095467.

This information is provided for the purpose of notification whenever there are developments in the case, and the notifications are auto-generated to all parties linked to the case. The foregoing supports the Applicant's 20 averment that an email notification was sent on 15th August, 2024, informing the parties that the ruling in *Misc. Application No. 662 of 2023,* was scheduled to be delivered on 19th August, 2024.

I have established that the Respondents' Counsel Michael Mayambala, in personal conduct of the matter, registered as a related User party on the

25 ECCMIS profile of the Respondents' case, received a notification showing that the ruling in *Misc. Application No. 662 of 2023,* was scheduled to be delivered on 19th August, 2024 as evidenced by annexure "**A**" attached to the affidavit in support.

Accordingly, there is sufficient evidence showing that the Respondents' 30 Counsel Michael Mayambala, who was representing the Respondents, as

- 5 per the Court record, and was registered as a related User party on the ECCMIS profile of the Respondents, received the notification to the effect that the ruling in *Misc. Application No. 662 of 2023* was scheduled to be delivered on 19th August, 2024. - Learned Counsel for the Respondents also argue that by 2024, Mr. Michael 10 Mayambala was not working with their firm, though no evidence to that effect was presented. The Respondents also did not adduce any evidence to show that they changed their User party contact in ECCMIS to remove Mr. Michael Mayambala, the registered User party since they allege that he was not working with them in 2024. However, I have also noted from 15 the letter head of the law firm of M/s Kasolo & Khiddu Advocates vide their letter to Court dated 7th May, 2025 that Mr. Michael Mayambala is indicated as a Senior Associate in the firm. Further, Mr. Michael Mayambala is also registered as a related user party in this instant application. Therefore, this Court is convinced that Counsel for the 20 Respondents received the ruling notification when it was sent on - [michaelmayambala@gmail.com](mailto:michaelmayambala@gmail.com) on 15th August, 2024. It should also be noted that the Respondents once they discovered that the ruling had been delivered and were out of time still did not file an application for extension of time for filing the amended plaint or seek leave of Court. - 25 The Respondents' Counsel, having admitted to have filed the amended plaint on 6th September, 2024, they filed the same out of time without first seeking leave of Court, as per **Order 6 rule 25 of the Civil Procedure Rules**.

In the circumstances, issue No. 1 is answered in the affirmative.

5 Issue No.2: What are the remedies available to the parties?

Having resolved issue No. 1 in the affirmative, the following orders are issued:

- 1. The Respondents' amended plaint filed in Court on 6th September, 2024, is struck off the record. - 10 2. Costs of this application shall be in the cause.

I so order.

Dated, signed and delivered this **12th** day of **June, 2025**.

Patience T. E. Rubagumya

15 **JUDGE** 12/06/2025

## 5 **Ruling read in Chambers**

12th June, 2025

9:30am

## **Attendance:**

Mr. Simon Tendo Kabenge, Learned Counsel for the Applicant.

10 Mr. Trevor Turyagenda, Company Secretary of the Applicant. Learned Counsel for the Respondents and the Respondents are absent. Mr. Augustine Bwambale, Court Clerk.

15 Patience T. E. Rubagumya **JUDGE** 12/06/2025