[2025] UGCommC 188

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL ON) MISCELLANEOUS APPLICATION NO. 0815 of 2025 (ARISING FROM CIVIL SUIT No. 0228 of 2025)**

**MUYANJA PAUL ] APPLICANT**

**VERSUS**

15 **PAXON MURAGE MAINA ] RESPONDENT**

# **Before: Hon. Justice Ocaya Thomas O. R**

## 20 **RULING**

# **Introduction:**

This application was brought by way of Chamber Summons under Section 98 of the Civil Procedure Act, and Order 5 Rules 22 and 26 of the Civil Procedure Rules, seeking the following orders: -

- 25 1. That leave be granted to the Applicant to effect Service of Summons and other court processes in Civil Suit No. No. 0228 of 2025 unto the Respondent (Defendant) outside the Jurisdiction of Uganda in Kenya, Walmwa Buildings HSE 12B near Kasarani Police Station, Thika Road, Address: 229200100 Nairobi. - 2. The costs of the Application be provided for. - 30

The grounds of the Application are contained in the affidavit of the Applicant, Nankabirwa Mary, an advocate of the Plaintiff vide Civil Suit No. 228 of 2025 and she stated that the Applicant/Plaintiff instituted against the Defendant, Civil Suit No. 0228 of 2025 on the 4th day of April 2025 and that the cause of action in the Civil Suit No. 0228 of 2025 arose within


5 the Jurisdiction of this Honorable Court in Kampala District particulars of which are set out in the Plaint.

That the Respondent/Defendant resides in Kenya, Walmwa Buildings HSE 12B near Kasarani Police Station, Thika Road, Address: 229200100 Nairobi and the 10 Applicant/Plaintiff has a good and maintainable cause of action against the Defendant/Respondent as stated in the Plaint therein arising from breach of Contract and recovery of UGX 66,000,000/=.

That it is necessary and in the interest of Justice that this Application be granted to serve 15 Summons and other court processes upon the Defendant/Respondent at the address stated in Paragraph 4 above to enable the Plaintiff to ably prosecute his case and that service be effected in Kenya through the Registered Postal Address and Courier which is a lawful and an effective mode of service.

20 That no prejudice will be occasioned to the Respondent (Defendant) by granting this Application, as the Defendant will be accorded ample opportunity to respond to the suit.

### **Representation and Submissions:**

The Applicant was represented by the Law firm of M/S SAAC Advocates, and they filed 25 Written submissions in support ofthe application which the court considered before arriving at the decision below.

### **Evidence:**

The Applicant led his evidence by way of an affidavit in support of the Chamber summons 30 deposed by Nankabirwa Mary, an advocate in the firm representing the Plaintiff.

### **Issues:**

- 1. Whether there are sufficient grounds to warrant the granting of leave to effect service of summons and other court documents outside of jurisdiction in Civil Suit No. 0228 of - 35 2025**?**

### 5 **Decision:**

**Issue 1: Whether there are sufficient grounds to warrant granting of leave to effect service of summons and other court documents outside of jurisdiction in Civil Suit No. 0228 of 2025?**

Counsel for the Applicant submitted that Order 5 Rule 22 of the Civil Procedure Rules 10 provides for service out of the Jurisdiction and Counsel cited the case of *Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan and 3 Others [2019] KLR*, where the court emphasized that the manner in which such Jurisdiction is assumed by the court is that; firstly, the Plaintiff has to seek leave of the court to serve such Summons outside the court's Jurisdiction. The purpose of seeking leave is to enable the

15 court to weigh the reasons/evidence adduced by the Plaintiff and determine whether a proper case has been made out for service of Summons outside its Jurisdiction.

Counsel further submitted that the Applicant filed this Application accompanied with an Affidavit with the Plaint and Summons as Annexures which lay down the grounds on which 20 this Application is premise and that in Paragraph 3 of the Affidavit in support of the Application states that the cause of action in Civil Suit No. 0228 of 2025 rose within the

- Jurisdiction of this Honorable Court in Kampala District particulars of which are set out in the Plaint, thus gives this court inherent powers to hear this matter under Section 98 Civil Procedure Act Cap 282, further that the Memorandum from which the cause of action of 25 Breach of Contract arose was made with in Uganda and was to be performed in Uganda as the Defendant was to pay a balance of UGX 60,000,000/= and that under Clause II, the - Plaintiff is at liberty to institute Civil Proceedings against the Defendant incase Breach arose in either in Uganda to recover what is owed. - 30 That it is the Applicant's Submission that the Defendant/Respondent submitted to the Jurisdiction of Uganda and counsel cited the Hon. Justice Wambuzi CJ (as he then was) in *Bank of Uganda Vs Transroad Ltd S. C. C. A. 031 of 1997*, where he defined submitting to the Jurisdiction to mean to put oneself under the power of the court to adjudicate over the matter in issue. Under S. 3 (2) (b) Code of Civil Procedure; (See Mulla on the Code of Civil Procedure, - 35 14th Edition), 2 instances of submission are given. In one case, a party appears in a foreign

- 5 court in answer to a process of that court to participate in the adjudication, and in the other, a party agrees beforehand to have the dispute resolved in the Jurisdiction of the foreign court. Accordingly, "otherwise to submit to Jurisdiction must mean some other act, which a party performs in that court to give Jurisdiction to adjudicate on the particular matter. - 10 Counsel further submitted that the cause of action arose within the Jurisdiction of this Honorable Court as in accordance to Section 15 (c) Of the Civil Procedure Act as the contract was concluded within Uganda and that it is in the interest of justice that, the Defendant who has no registered address in Uganda be notified of the suit by the grant of leave to serve them Summons which were issued by this Honorable Court on the 15th day of April 2025 and other - 15 court proceedings at their country of residence, this was emphasized by Aburili, J. in *Law Society of Kenya vs Martin Day & 3 Others (Supra)* as he stated that, It is not sufficient for a Plaintiff to institute suit against a party. That party must be invited to submit to the authority of the court in Order for the Legal Process of setting down the suit for trial to commence. The circumstances of this case are such that Summons must be served in the manner provided - 20 for in the rules to enable the Defendants who have no registered office or business in Kenya to submits to the Jurisdiction of this court. It therefore follows that their knowledge of the existence of the suit is not sufficient to proceed against them. They may be aware of the suit, but unless they are prompted by the summons in the manner provided for in the rules, the Jurisdiction of this court is not invoked.

Counsel also submitted that the Respondent is a necessary party to the suit as stated under Paragraph 5 of the Affidavit in support of the Application which states that, the Applicant/Plaintiff has a good and maintainable cause of action against the Defendant/Respondent as stated in the Plaint therein arising from Breach of Contract and

30 recovery of UGX 60,000,000/=, as per the plaint and its annexures therein attached under Paragraph 2 of the Affidavit, the Respondent was the Second Party on the Contract who failed to perform his part of the Contract.

In conclusion, counsel submitted that the Applicant has proposed a lawful and effective 35 mode of service, under Paragraph 8 of the Affidavit in support, to be effected in Kenya

5 through the registered post of the Respondent or the Courier. As in accordance with Order 5 Rule 26 of the Civil Procedure Rules.

This application proceeded ex parte for the obvious reasons of its nature, and the enabling law is Order 5 Rule 22, which provides that - Service out of the jurisdiction of a summons or 10 notice of a summons may be allowed by the court whenever—

(a*) the whole subject matter of the suit is immovable property situated within the jurisdiction (with or without rents and profits);*

*(b) any act, deed, will, contract, obligation, or liability affecting immovable property situate within the jurisdiction is sought to be construed, rectified, set aside, or enforced in the suit;*

15 *(c) any relief is sought against any person domiciled or ordinarily resident within the jurisdiction;*

*(d) the suit is for the administration of the personal estate of any deceased person, who at the time of his or her death was domiciled within the jurisdiction, or for the execution (as to property situate within the jurisdiction) of the trusts of any written instrument, of which the*

20 *person to be served is a trustee, which ought to be executed according to the law of Uganda; (e) the suit is founded on any breach or alleged breach within the jurisdiction of any contract, wherever made, which, according to the terms of the contract, ought to be performed within the jurisdiction.*

*(f) any injunction is sought as to anything to be done within the jurisdiction, or any nuisance*

25 *within the jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect thereof;*

*(g) any person out of the jurisdiction is a necessary or proper party to a suit properly brought against some other person duly served within the jurisdiction; or*

*(h) the suit is founded on a tort committed within the jurisdiction.*

It follows in Order 5 Rule 24 that every application of the current nature, for leave to serve the summons or notice on a Defendant out of the jurisdiction shall be supported by affidavit or other evidence, stating that in the belief of the deponent the Plaintiff has a good cause of action, and showing in what place or country the Defendant is or probably may be found,

35 and whether the Defendant is a Commonwealth citizen or British protected person or not,

5 and the grounds on which the application is made; and no such leave shall be granted unless it is made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction under this Order.

The peculiar nature of this application is based on the principle that law works within a given 10 jurisdiction and it does not apply *ultra vires* its jurisdiction. The High Court in *J. Kabagambe and Others V Ken Africa Limited and Others, HCMA No. 157 of 1993* cited and quoted the words of Lord Radcliffe in *Vitkovice Horni. A. Hutni Tezirstvo v Korner, (1951) 2 ALLER.* ''Service out of the jurisdiction is, of course, an exceptional measure. The ordinary principles of international comity are invaded by permitting it, and quite apart from the question 15 whether judgment will, or will not, ultimately be given against the persons served, it is only natural therefore, that the courts should approach with circumspection any request for leave to issue a writ against such a person."

In the instant case, I have perused the Applicant's affidavit in support and in annexure "A" to 20 the affidavit in support is a copy of the pleadings in the main suit, wherein in paragraph 2, the Applicant identified the Defendant being a Kenyan National and in paragraph 4, the deponent stated that the Defendant resides in Kenya, Walmwa Buildings HSE 12B near Kasarani Police Station, Thika Road, Address: 229200100 Nairobi.

25 The above coupled with other facts of the case thus far are sufficient to show that the Defendant does not reside in Uganda and is likely to reside in Kenya, in the above known place.

Therefore, it also follows as required in Order 5 Rule 24 that an Applicant has to satisfy Court 30 that the Plaintiff has a good cause of action; showing in what place or country the Defendant is or probably may be found, and whether the Defendant is a Commonwealth citizen or British protected person or not, and the grounds on which the application is made; and no such leave shall be granted unless it is made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction under this Order.

5 On what amounts to a "good cause of action" for an application to be considered a proper one fit for the grant of the leave, the court in *Assanand and Sons (U) Ltd v E. A Records, (1952) EALR*, stated that – what the courts will be looking for from the Applicant at this juncture is whether he has a "good arguable case" or "a probable cause" at the time of the application. of course, the Applicant is not at this point expected to prove his case or

10 substantiate it.

The import of the foregoing is that the Courts upon an Applicant satisfying the other requirements, will look at the case to establish if it *prima facie* shows any dispute for court's consideration at all to make a probable cause and in this instant application, in answer to a

- 15 probable cause, the deponent in paragraph 5 of the affidavit in support stated that the Applicant has a good cause against the Defendant arising from breach of contract. Further, in paragraph 3 of the main suit pleading, the deponent stated that the cause of action arose from the jurisdiction of this Court, in Kampala. In annexure "A", which is the pleading, the Plaintiff averred in paragraphs 4 (a), (b), (c), and (d) that the parties entered into a logistics - 20 agreement wherein the Defendant was supposed to transport tyres from Mombasa, Kenya, to Kampala, Uganda. That upon delivery, some tyres were discovered lost in transit and the Defendant was found liable and offered to pay for them to the tune of UGX 60,000,000/= in a memorandum signed on 24th October 2022 in Kampala, Uganda. - 25 Having perused the memorandum of understanding signed by the parties on 24th October 2022, it is prima facie a binding document, and it was signed in Kampala, Uganda, giving this Court jurisdiction over its implementation, and further, it is the document from which the cause of action arose in the main suit arose as the Applicant sued for breach of contract and recovery of the UGX 60,000,000/= in the main suit. - 30

In the premises, I am inclined to grant the application and give the Applicant leave to serve summons outside of jurisdiction, which in this case is Kenya and the costs shall abide the main suit.

### 35 **In Conclusion:**

I accordingly make the following orders,


- 5 a) That this Application is allowed. - b) Fresh summons to issue for service. - c) The Applicant/Plaintiff is granted leave to serve the Respondent/Defendant with the pleadings in Civil Suit No. 228 of 2025. - d) The costs of the Application shall abide by the main suit. - 10

I so order.

**Dated** this\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_2025, delivered electronically and uploaded on **ECCMIS** 20th June

15 **Ocaya Thomas O. R Judge, 20th June, 2025.**

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