[2023] UGHCCD 38
The court found that the plaintiff failed to serve the summons upon the defendant within the statutory period of 21 days as required by Order 5 rule 1(2) of the Civil Procedure Rules. Furthermore, the plaintiff did not apply for an extension of time to serve the summons within the additional 15 days permitted by the...
Source-derived case information.
- Citation
- [2023] UGHCCD 38
- Parties
- Plaintiff: Zephania Nakimera; Defendant: Mpanga Tea Growers Factory Co. Ltd
- Court
- HC: Civil Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- Civil Suit No. 5 of 2020
- Procedural Posture
- Civil Suit / Ruling
- Outcome
- suit dismissed for non-service of summons
- Judges
- Wagona, J
- Legal Topics
- Service of Summons, Dismissal for Non Service, Extension of Time, Return of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zephania Nakimera
Plaintiff
Mpanga Tea Growers Factory Co. Ltd
Defendant
Procedural Posture
Civil Suit / Ruling
Legal Issues
- 1 Whether the summons to file a defense were served upon the defendant within the prescribed time period.
- 2 Whether the plaintiff applied for extension of time to serve the summons as required by law.
- 3 Whether the suit should be dismissed for non-service of summons and lack of application for extension.
Ratio Decidendi
The court found that the plaintiff failed to serve the summons upon the defendant within the statutory period of 21 days as required by Order 5 rule 1(2) of the Civil Procedure Rules. Furthermore, the plaintiff did not apply for an extension of time to serve the summons within the additional 15 days permitted by the rules. The absence of an affidavit of service and any application for extension meant that the mandatory requirements for service were not met. Consequently, under Order 5 rule 1(3), the suit stands dismissed without notice for non-service of summons. The court exercised its discretion to dismiss the suit accordingly, with no orders as to costs.
Court Disposition
suit dismissed for non-service of summons
Orders
- Civil Suit No. 005 of 2020 is dismissed under Order 5 rule 3 of the Civil Procedure Rules for non-service of court summons.
- No orders as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
## **THE REPUBLIC OF UGANDA**
### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**
### **CIVIL SUIT NO. 005OF 2020**
# **ZEPHANIA NAKIMERA ::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**
5 **VERSUS**
### **MPANGA TEA GROWERS FACTORY CO. LTD ::::::::::: DEFENDANT**
### **BEFORE HON. JUSTICE VINCENT WAGONA**
### **RULING**
The plaintiff filed this suit on 14th 10 January 2020 against the defendant and the summons to file a defense were issued by court on 19th March 2020. Since then no taken was done by the plaintiff on the file. There is no proof on record of service of the summons upon the defendant.
### **Decision:**
15 Order 5 rule 1 provides thus:
*(1) When a suit has been duly instituted a summons may be issued to the defendant—*
*(a) ordering him or her to file a defence within a time to be specified in the summons; or*
20 *(b) ordering him or her to appear and answer the claim on a day to be specified in the summons.*
*(2) Service of summons issued under subrule (1) of this rule shall be effected within twenty-one days from the date of issue; except that the time may be extended on application to the court, made within fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the extension.*
- *(3) Where summons have been issued under this rule, and—* - *(a) service has not been effected within twenty-one days from the date of issue; and* - *(b) there is no application for an extension of time under subrule (2) of this rule; or* - 10 *(c) the application for extension of time has been dismissed, the suit shall be dismissed without notice.*
It is a mandatory requirement that the summons issued by court must be served within 21 days from the date of issue and return of service must be filed in court.
15 Where service has not been done within 21 days, then the plaintiff must within 15 days seek an extension of the summons. If the same are not served within 21 days and there is no application for extension of time within which to serve, then the suit stands dismissed without notice.
In the present suit the summons were issued on 19th March 2020 and thus were to be served within 21 days which lapsed on 10 20 th April 2020.
There is no proof of service of the summons upon the defendant which must be by an affidavit of service and no application was made by the plaintiff for extension of time within which to serve.
In the premises, I dismiss Civil Suit No. 005 of 2020 under *Order 5 rule 3* of the Civil Procedure Rules for none service of the court summons with no orders as to costs.
I so order.
Vincent Wagona
High Court Judge
FORT-PORTAL
27.02.2023
