[2022] UGHCFD 29

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) MISCELLANEOUS APPLICATION NO. 442 OF 2022 (ARISING FROM MISCELLANEOUS APPLICATION NO. 730 OF 2021) (ARISING FROM CIVIL SUIT NO. 201 OF 2018)**

**MUTUMBA PHAD......................................................................... APPLICANT**

# **VERSUS**

**GODFREY KIRUMIRA.............................................................. RESPONDENT**

# **BEFORE: HON. JUSTICE ALICE KOMUHANGI KHAUKHA**

## **RULING**

### **Introduction**

This ruling is in respect of an application brought by way of Notice of Motion under sections 96 and 98 of the Civil Procedure Act, Cap.71, Order 51 Rule 6 and Order 52 Rules 1, 2 & 3 of the Civil Procedure Rules S. I 71-1 for Orders that:

- i. This Honourable Court validates Miscellaneous Application No. 730 of 2021 which was served out of time; - ii. Costs of this application be in the cause.

## **Appearance and Representation**

When the matter came up for hearing, the applicant was represented by Counsel Patience Kokunda while the respondent was represented by Counsel Vennie Kasande Murangira. Both counsel for the applicant and the respondent filed written submissions which have been considered in this ruling.

#### **The application**

The application seeks that this Honourable Court validates Miscellaneous Application No. 730 of 2021 which was served out of time. The application is supported by the affidavit of Mutumba Phad (hereinafter referred to as the applicant). The grounds contained in the application and the affidavit can be summarized as follows:

- (a) That the applicant filed Chamber Summons in respect to Miscellaneous Application No. 730 of 2021 on 23rd November 2021 and the said Chamber Summons were endorsed by the Registrar on 24th November 2021; - (b)That the applicant was informed by his lawyer that the application was only allocated a date some time in January or beginning of February or thereabout and that the lawyer was only able to extract the application from Court's file on 2nd February 2022, which is the very date that the respondent was served with the said application; - (c) That the delay in service was at the instance of Court and that mistake should not be visited on the applicant; and - (d)That if this application is not granted, it will occasion a great injustice to the applicant.

On the other hand, the respondent's affidavit in reply by sworn by Godfrey Kirumira who opposed the application as follows:

(a) That his lawyer raise preliminary objections to wit: that this application was endorsed by Court on 25th May 2022 but was served upon his lawyers on 6th July 2022, which was out of time and the application was incurably defective;

- (b)Miscellaneous Application No. 730 of 2021 has been pending ruling since 29th March 2022. As such the application for validation of a matter pending a ruling is affected by law to the extent that the application is frivolous and vexatious, it is an abuse of Court process and a nullity at law. - (c) That Miscellaneous Application No. 730 of 2021 is incurably defective and the Orders sought for cannot be validated by Court because the grounds upon which it is premised are baseless. - (d)That the applicant is different from the applicant in Miscellaneous Application No. 730 of 2021 and Civil Suit No. 201 of 2018 and that the affidavit in support of this application was sworn by Mutumba Phad, who is not the applicant which makes the application unsustainable in the eyes of the law. - (e) That the application should be dismissed with costs.

#### **Submissions**

Counsel for the applicant, relying on the case of *Molly Kyalikunda Turinawe & 4 Others Versus Engineer Ephraim Turinawe & Another SCCA No. 27 of 2010*, submitted that the conditions for enlargement of time are: whether the applicant has established sufficient reasons for the court to extend the time..., whether the applicant is guilty of dilatory conduct and whether any injustice will be caused if the application is not granted.

Counsel for the applicant further submitted that it was clear from the applicant's affidavit of service that the delay in serving the Chamber Summons in Miscellaneous Application No. 730 of 2021 was due to the misinformation by the Court officials and there was no dilatory conduct on the part of the applicant. This could be evidenced by the fact that the applicant served the Chamber Summons on the Respondent immediately after the said Chamber Summons were retrieved by Court.

It was also Counsel for the applicant's submissions that there will be no injustice caused to the respondent since the Chamber Summons is an application for amendment of the applicant's pleadings out of time, the parties have already filed all the necessary pleadings and submissions in Miscellaneous Application No. 730 of 2021 that only awaits a ruling. That the applicant only seeks validation of Chamber Summons already served on the respondent and a denial of this application would be a denial of the applicant's right to a fair hearing. Counsel thus prayed that this Honourable Court be pleased to validate the service of the Chamber Summons in Miscellaneous Application No. 730 of 2021 that was already effected on the respondent though out of time.

On the other hand, Counsel for the respondent submitted on the preliminary objections that Miscellaneous Application No.442 of 2022 was served out of time thus the application was incurably defective since it was served 42 days later contrary to Order 12 Rule 3 (2) of the Civil Procedure Rules S. I 71-1 (hereinafter referred to as **the CPR**) and as per the cases of *James Jjunju & Another Versus Madhvani Group Limited & Another M. A No. 688 of 2015* and *Kanyabwera Versus Tumwebaze [2005] E. A 86 at page 93*. That this application cannot be heard by this Honourable Court before the delivery of the pending ruling in Miscellaneous Application No. 730 of 2021 which in itself is defective and cannot be validated by this Honourable Court. Also, that the application contravenes Order 6 Rule 1 of the CPR.

Counsel for the respondent further contended that the applicant does not qualify for an order for the enlargement of time as per the case of *Molly Kyalikunda Turinawe & 4 Others Versus Engineer Ephraim Turinawe & Another SCCA No. 27 of 2010* because he failed to prove the conditions provided therein. That the delay in service was due to the applicant's negligence to serve the respondent within the prescribed time stipulated within Order 12 Rule 3(2) and that there will be an injustice caused to the respondent if the application is granted. That the application is barred by law and the grant of this application will be deemed an abuse of court process and an illegality within the law itself. That as much as justice ought to be exercised, it must be done within the ambit of the law. The defects in the application are incurable and so the application is barred by law on that ground. As such the application should be dismissed with costs.

In rejoinder, Counsel for the applicant reiterated her earlier submissions which I shall not reproduce herein again.

#### **Court's consideration of the application**

In resolving this application, I shall restrict myself to the issue concerning Miscellaneous Application 442 of 2022, which is whether this Honourable Court can validate the service of the Chamber Summons in Miscellaneous Application No. 730 of 2021 that was served upon the respondent out of time.

However, without prejudice to the above, I will give a background of how Miscellaneous Application 442 of 2022 comes about for better appreciation of the Orders that are going to be made hereinafter.

Civil Suit No. 201 of 2018, which is the main suit, first came up for mention before me on 26th October 2021. Counsel for the plaintiff (now applicant) informed Court that she intended to make a formal application to amend the plaint because new matters had come up concerning this very case. Civil Suit No. 201 of 2018 was adjourned to 6th December 2021 to allow Counsel for the applicant to file an application for amendment of the plaint out of time and for Court to deliver a ruling on the preliminary objections that were raised by Counsel for the Defendant (now respondent) in the Written Statement of Defence (hereinafter referred to as **the WSD**).

On 23rd November 2021, Counsel for the applicant filed Miscellaneous Application No. 730 of 2021 by way of Chamber Summons in this Honourable Court. The said Chamber summons were endorsed by the learned Registrar on the 24th day of November 2021. When Civil Suit No. 201 of 2018 came up for delivery of the ruling on the preliminary objections that had been raised by Counsel for the defendant (now respondent) on 6th December 2021, Counsel for the plaintiff (now applicant) informed Court that she had filed Miscellaneous Application No. 730 of 2021 for leave to amend the Plaintiff's pleadings out of time and as of 3rd December 2021, the said application had been allocated to the Deputy Registrar (Her Worship Ajio Hellen) but it had not been fixed for hearing. Counsel for the respondent who was in Court on that day did not object to Counsel for the applicant's prayer to adjourn Civil Suit No. 201 of 2018 until Miscellaneous Application No. 730 of 2021 had been dealt with. Civil Suit No. 201 of 2018 was then adjourned to 15th February 2022 for mention. On 17th December 2021, Counsel for the applicant wrote a letter to the Deputy Registrar of this Honourable Court reminding her to fix the matter for hearing.

When the Civil Suit came up for mention on 15th February 2022, Counsel for the applicant informed Court that Miscellaneous Application No. 730 of 2021 had been fixed for hearing before the Deputy Registrar for 7 th March 2022. Civil Suit No. 201 of 2018 was then adjourned further to 17th March 2022 for mention. On 17th March 2022 when the matter came up for mention, Counsel for the respondent informed Court that Miscellaneous Application No. 730 of 2021 had been adjourned by the Deputy Registrar to 29th March 2022 but a question as to whether she had the jurisdiction to handle the said application when the main suit was before me had arisen and this position was agreed to by Counsel for the applicant too. At that instance the matter was adjourned to 30th May 2022 for mention.

On 29th March 2022 while at the Deputy Registrar's Chambers, both Counsel agreed that the Miscellaneous Application No.730 of 2021 could be better handled by me since I was handling the main suit. As such, the Deputy Registrar too adjourned Miscellaneous Application No.730 of 2021 to 30th May 2022 pending forwarding the said file to me. During this period of adjournment, Counsel for the applicant filed Miscellaneous Application No. 442 of 2022 on 20th May 2022 seeking for an order that Court validates Miscellaneous Application No. 730 of 2021 which was served upon the respondent out of time.

When the matter came up for mention on 30th May 2022, Counsel for the applicant in agreement with Counsel for the respondent informed Court that the Deputy Registrar did not have jurisdiction to handle the Miscellaneous Application No. 730 of 2021 since the main suit that is, Civil Suit 201 of 2018 was already before me. As such, Counsel for the applicant prayed that Court should make an order directing the Deputy Registrar to forward Miscellaneous Application 730 of 2022 to me to handle. It is on those premises that Civil Suit No. 201 of 2018 was adjourned to 11th July 2022 for mention and Miscellaneous Application No. 730 of 2021was fixed for hearing on that same date.

When Civil Suit No. 201 of 2018 came up for mention on 11th July 2022, the matter was adjourned to 5th September 2022 for mention on ground that the applications, that is Miscellaneous Application No. 730 and Miscellaneous Application No. 442 of 2022, (both of which were now before me since they were arising out of Civil Suit No. 201 of 2018) had to first be heard. I then thought it fit that Miscellaneous Application No. 442 of 2022 be handled first since it sought to validate service out of time of the Chamber Summons in Miscellaneous Application No. 730 of 2021. I then instructed Counsel for the respondent and Counsel for the applicant to file their respective documents that were not yet on the file and the matter was adjourned to 5 th September 2022 for a ruling in Miscellaneous Application No. 442 of 2022.

Therefore, with the above background and having considered the affidavit evidence of both parties and the submissions by the lawyers of both parties, I am of the view that this Honourable Court can validate the Chamber Summons in Miscellaneous Application No. 730 of 2021 that was served upon the respondent out of time for the following reasons:

Firstly, I would like to acknowledge that there was delay on the part of Court in allocating Miscellaneous Application No. 730 of 2021 a hearing date. It is not true that the delay to serve the Respondent with the Chamber Summons in Miscellaneous Application No. 730 of 2021 was due to the applicant's negligence as Counsel for the respondent alleges in her submissions. It should be noted that it was the applicant who lodged Miscellaneous Application No. 730 of 2021 and I believe she has no reason as to why she would be negligent concerning her own application. There is evidence of a letter dated 17th December 2021 where Counsel for the applicant was requesting the Deputy Registrar to fix Miscellaneous Application No. 730 of 2021 for hearing so that the matter could be heard expeditiously. The said letter can only indicate that Counsel for the applicant had been following up on her application and that is how she was able to establish that the said application had not yet been fixed for hearing. I also believe that Counsel for the respondent is aware of the procedure of service of such applications. That Chamber Summons cannot be served upon the opposite party unless they have been given a hearing date by the responsible judicial officer before whom the file is placed irrespective of the date of when the said Chamber Summons were endorsed. It would therefore occasion a miscarriage of justice if the delay occasioned by Court in giving a hearing date is visited upon the applicant.

In connection to the above, I find that according to the case of *Molly Kyalikunda Turinawe & 4 Others Versus Engineer Ephraim Turinawe & Another SCCA No. 27 of 2010* (cited by Counsel for the applicant), which laid down the principles upon which Court can enlarge time for filing a notice of appeal, the said principles are applicable in this matter to wit: that the applicant must establish sufficient reasons for the court to grant such an application; that the applicant is not guilty of any dilatory conduct; and that no injustice will be caused if the application is granted. It is my finding that the applicant has adduced sufficient reason for Court to grant this application. Having acknowledged that the delay was occasioned by Court to allocate a hearing date thereby causing the applicant to serve the respondent with the said Chamber Summons out of time, I find that the applicant and/or his Counsel are not guilty of any dilatory conduct. I am inclined to agree with Counsel for the applicant that she served the Chamber Summons in Miscellaneous Application No. 730 of 2021 upon Counsel for the respondent as soon as she got them that was, on 2 nd February 2022 which was without delay.

More so, I also find that there will be no injustice occasioned if this application for validation of Miscellaneous Application No. 730 of 2021 is granted. Both parties have already filed all the necessary pleadings pertaining to Miscellaneous Application No. 730 of 2021. I find it surprising that Counsel for the respondent could raise the issue of delayed service and yet she has been active in this matter and has been abreast with its progress. There is no step that Counsel for the applicant has taken in the adjudication of this matter that Counsel for the respondent and/or the respondent are not aware of. I believe that it is in the interest of justice for both parties that this application is allowed so that Miscellaneous Application No. 730 of 2021 and eventually Civil Suit No. 201 of 2018 can be disposed of too on their merits.

In the premises, this application is allowed with the following Orders:

- (a) That Miscellaneous Application No. 730 of 2021 that was served out of time is validated; - (b) That Miscellaneous Application No. 730 of 2021 shall be heard on its merits; and - (c) That costs shall be in the cause.

I so order.

## **Obiter Dictum**

Before I take leave of this matter, I would like to note that the issue being addressed in this matter is very common at the Family Division of the High Court. This is because applications of this nature are always endorsed by the Registrars who cannot allocate the hearing dates because they have no jurisdiction to handle such matters. As such, by the time the file/application leaves the Registrar's Chambers to be allocated to the Judge who gives the hearing date, the time within which to effect service of the said applications in most cases has elapsed. Therefore, if we are to take a strict approach in handling these matters, the following will happen: firstly, so many cases of such extensions will be filed thereby increasing our workload on top of the already existing backlog; secondly, matters shall not be heard and/or disposed of expeditiously since a lot of time will be spent hearing such applications; thirdly, it will occasion a miscarriage of justice especially to people who have been genuinely following up there matters but have been caught up by time. I am cognizant of the fact that litigation is not cheap and the longer it takes, the more expenditure on the part of the parties in issue.

However, this issue is being handled administratively. I believe that sooner than later, the judicial officers at the Family Division are going to come up with a solution that will address these kinds of issues in a bid to administer justice to all. In the meantime, Counsel should endeavor to explain to their clients such technicalities and co-operate with each other and with Court so that justice is dispensed expeditiously instead of instituting unending applications.

## **Dated at Kampala this 5 th day of September 2022.**

………………………………

Alice Komuhangi Khaukha **JUDGE** 5/09/2022