[2025] UGHC 358

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE CIVIL SUIT NO. 0002 OF 2023**

# **RUGIRA SALIM**::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PLAINTIFF**

## 10 **VERSUS**

**JAKOBU ENTERPRISES LTD (aka Jaguar Buses)**:::::::::::::::::::**DEFENDANT**

### **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

#### **RULING**

15 The Plaintiff brings the instant Suit against the defendant seeking an award of general damages, special damages, costs of the Suit arising from an accident that occurred on the 03/07/2017.

When this matter came up for hearing Mr. Eriako holding brief for Mr. Karoro Counsel for the defendant raised a preliminary objection that the instant Suit is

20 time barred and should be dismissed with costs under **Order 17, Rule 11 (d**) of the **Civil Procedures Rules** and **Section 3 (i) (d)** of the **Limitation Act**.

It is the argument of the defendant's Counsel that the Plaintiff instituted this claim for an accident that occurred on 03/07/2017 and it was dismissed for being instituted against a none existent party, after which the Plaintiff filed this claim.

25 Counsel contends that the cause of action arose in 2017 and the Suit was filed 6 years later in 2023.

Counsel relies on the decision in **Demani Dominic versus Eyani Godfrey HCCA No. 0017** of **2016** in which the Court held that limitation is a creature of statute from which Court obtains its jurisdiction and when time has ceased Courts are 5 rendered incompetent in hearing such matters. Counsel for the defendant therefore prays that the instant Suit is dismissed with costs.

Mr. Masereka Godwin for the Plaintiff in his written submissions in reply contends that the Plaintiff's action is not time barred as there is no action for damages for negligence or breach of duty in respect of personal injuries to any

- 10 person in his claim thus making the limitation on period for the Plaintiff's cause of action 6 years. It is the argument of Counsel that the Plaintiff under paragraph 5(a) and 9 shows that the Plaintiff's claim is in respect of loss of income arising from the loss of business due to the damage caused to his vehicle in 2017 and not in respect of personal injuries. Counsel for the Plaintiff further presses the point - 15 that the Plaintiff filed his action on the 19/04/2023 six years from 03/07/2017 when the cause of action arose and which would expire on 03/07/2023 and thus 3 months before the 6 years limit.

To buttress his case Counsel relied on the authority in **James Mundele Sunday versus Pearl of Africa Travels** and **Tours HCCS No. 0089** of **2011**.

20 The Defendant in rejoinder argues that the Plaintiff's claim under loss of income is devoid as the entire Plaint is on negligence and that the Plaintiff has to first prove that the Defendant was negligent before he proves loss of income and therefore that his claim for loss of income is unsustainable.

To buttress his argument that the Plaintiff's case was premised on negligence 25 Counsel relied on the decision in **Nabwami Grace versus Attorney General HCCS No. 0223** of **2015.**

### 5 **Determination.**

**Section 3 (1)** of the **Limitation Act** provides as follows: -

- (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action arose: - - *(a) "actions founded on contract or on tort;* - 10 *(b) actions to enforce a recognizance;* - *(c) actions to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture or sum by way of penalty or forfeiture, except that in the case of actions for damages for negligence nuisance or breach of duty (whether the duty* 15 *exist by virtue of a contract or of provision made by or under an enactment or independently of such contract or any such provision) where the damages claimed by the Plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person this sub section shall have the effect as if for the* 20 *reference to six years there were substituted a reference to three years"*

The provisions above provide for two sets of limitation in regard to actions raised as follows: -

(1) under **Section 3 (1) (a)** of the **Limitation Act**, for an action premised on a tort the party claiming is limited to instituting a claim within six 25 years from when the cause of action arose.

5 (2) under **Section 3 (1) (d)** of the said **Limitation Act** an action for damages for negligence which is to be instituted within three years from when the cause of action arose.

It is imperative to note that the Limitation statute is strict in nature and inflexible because it is not concerned with the merits of the case and non – compliance

10 renders a Suit a nullity.

**See Hilton versus Suiton Steam Laundary (1956) 1KB 73;**

**Madhvan International S. A versus Attorney General SCCA No. 0023** of **2010**.

It therefore follows that if a Suit is brought after the expiration of the period of limitation and this is apparent from the Plaint and no grounds of exemption are

15 shown in the Plaint, the Plaint must be rejected.

**See Uganda Railways Corporation versus Ekwaro D. O and 504 others CAMA No. 0185 of 2007.**

I will now consider the contents of the Plaint filed on 19/04/2023.

I will reproduce only the relevant excerpts of the same.

20 *"3 (1) The Plaintiff brings this Suit against the Defendant for;*

*(1) An award of general damages, special damages, costs of the Suit arising from an accident that occurred on the 03/07/2017 and any other reliefs deemed fit by the honourable Court.*

*4…. (c) That while the Plaintiff was driving from Kabale to Kisoro with* 25 *four passengers in his Motor Vehicle Registration No. UAS 920K Premio grey in colour at around 6:45 PM, Jaguar bus Registration No. UAT 686C*

- 5 *coming from Kisoro heading to Kampala rammed into him in his own driving lane at Omurugano towards Kanaba in Kisoro District and knocked his vehicle…* - *(d) That the Plaintiff was in his own driving lane and the driver of the bus found him in his own lane.* - 10 *8. The Plaintiff shall further aver that he sustained bodily injuries including chest pain which he went to Kisoro Clinic once and Rugarama Hospital twice for an X-ray"*

The Plaintiff also seeks special damages for the number of times he visited the hospital.

- 15 It is quite plain from the contents of the Plaint that the Plaintiff interalia seeks damages sought for personal injuries that he sustained in the accident. I would therefore agree with the Defendant's Counsel that for the Plaintiff to prove his claim on these special damages he has to prove that the driver of the defendant was negligent. - 20 The Plaintiff's Counsel sought to rely on the decision in **James Mundele Sunday versus Pearl of Africa Travel and Tours (Supra)** but the facts in that case are quite distinguishable from that in this case.

In the former the Plaintiff sought return of his motor vehicle from the Defendant and the Court held that an action for the return of the Plaintiff's motor vehicle

25 cannot be barred by limitation because the defendant does not assert that the Vehicle vested in it.

5 The Plaintiff seeks unconditional return of the vehicle in a sound mechanical condition or its value then. The Court also went further to hold as follows in regard to **Section 3 (d)** of the **Limitation Act**.

"*A claim for damages on a cause of action of negligence, nuisance or breach of duty in respect of personal injuries to any person are the only instances where the* 10 *limitation period is three years from the date the cause of action arose."*

The instant cause of action arose on 03/07/2017 and the instant Suit ought to have been filed on or before 03/07/2020. I am of course alive to the fact that the Plaintiff first instituted HCCS No. 0006 of 2019 but the same was dismissed for having been instituted against a non-existent party before he filed the instant Suit

15 on 19/04/2023. Be that as it may the same does not accord the Plaintiff an exemption and the Suit in this respect must be subject to the Limitation Act. It therefore follows that the claim to personal injuries is barred by the Limitation Act having been filed more than five years after the cause of action arose.

The Plaintiff's Counsel in an attempt to rescue this action argues that the Plaint 20 under paragraph(s) 5(a), (b) and 9 makes a claim in respect of loss of income arising from the loss of business due to the damage caused to his Motor Vehicle in 2017 and not in respect of personal injuries.

I find merit in this submission. Paragraph 5 (a) and (b) of the Plaint make reference to damage caused to the dashboard, Airbag, wiring system, steering 25 system, Gearbox, Front bumper, Bonnet, Head lamp, shock absorber, Suspension flat, Oil Pump and Engine mounting of the Motor Vehicle. While in paragraph 11 the Plaintiff avers to having made a loss of business earnings of UgX

5 126,720,000/= due to the accident which deprived him of work since 03/07/2017 because his car was parked at Kisoro Police Station.

It would appear to me that this claim on its own arising from negligence would stand. This is because the same is not premised on negligence that consists of personal injuries that is limited to the three years rule under **Section 3 (1) (d)**

10 but rather loss of income arising from the loss of business due to damage caused to his car by negligence that is a tort and falls under **Section 3(1) (a)** that must be instituted with in six years from when the cause of action arose. The instant Suit was instituted 3 months before the six-year cap.

The Supreme Court in **Eridad Otabong versus Attorney General SCCA No.** 15 **0006** of **1999** held that where there are two claims in the same Suit and one claim is barred by limitation, the Court ought to severe the claims and hear the claim not affected by limitation of time.

In the result the Plaintiff's claim for negligence in respect of personal injuries is hereby rejected. The hearing shall proceed on the remaining claim of damages in

20 relation to the Motor Vehicle and loss of income as raised by the Plaintiff.

It is so ordered.

Before me,

……………………………………….. **Samuel Emokor** 25 **Judge 10/04/2025.**