Buyinza and 8 Others v Nakakande and Another (Miscellaneous Application No. 941 of 2020) [2023] UGCommC 6 (11 January 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## (COMMERCIAL DIVISION)

## **MISCELLANEOUS APPLICATION No. 941 OF 2020**

#### (ARISING FROM CIVIL SUIT No. 255 OF 2020)

$10$

$\mathsf{S}$

| | BUYINZA GEORGE | | | |----|---------------------|---------------|-------------------| | | 2. MUJUMBA RICHARD | | | | | 3. WAMAKARE MOSES | | | | | 4. WASHI RASHID | | | | 15 | 5. WATENYERA RONALD | | | | | 6. KULOBA ISA | | | | | 7. NAMANDA JAMES | | | | | 8. NAMUDOLO AKIM | | | | | 9. TEBANDEKE SOWEDI | . | APPLICANTS | | 20 | | VERSUS | | | | 1. HALIMA NAKAKANDE | | |

2. ALISAT NALUWOZA ......................................

## BEFORE: HON. LADY JUSTICE SUSAN ABINYO

## **RULING**

#### **Introduction**

This application was brought by Notice of Motion under Order 36 Rule 4 of Civil Procedure Rules, SI 71-1, where the Applicants seek for orders that:

- 1. Unconditional leave be granted to the Applicants to appear and defend the main suit. - 2. Costs of this application be provided for. - 30

# s Focls

This opplicolion is supported by the offidovit of Buyinzo George, for ond on beholf of the Appliconts, ond on his own beholf, deponed in porogrophs l-l l, ond summorized os follows:

Thot it is not true thot ony of the Defendonts (Appliconts herein), owes money lo the Plointiffs (Respondents herein), ond thot it is the ls' Plointiff (l5r Respondent herein) who went missing wilh more ihon UGX .l00,000,000(Ugondo Shillings One Hundred Million Shillings only). 10

Thot the l'1 Plointiff wos o treosurer of the Associolion of conot sellers, ond disoppeored without occounting for more thon UGX ,l00,000,000(Ugondo Shillings

t5 One Hundred Million Shillings only).

> Thot the Respondents ore owore thol lhere is no cloim by the Appliconts ogoinst ihem, ond ore only fighting them for whol is known, ond thot it is in lhe interest of justice thot this opplicotion is ollowed.

The Respondents did nol file ony offidovit in reply

20 Reoresentotion

This motler wos fixed for heoring, ond the Appliconts were represented by Counsel Kolule Fredrick of M/S Fred Kolule & Co. Advocoles while Counsel Muhumuzo Rodgers of M/S Rwobwogo & Co. Advocotes oppeored for the Resoondents.

- Counsel for the Appliconls wos directed io serve Counsel for the Respondents with lhe opplicotion. which wos not yet served upon the Respondents, ond ihis Court directed Counsel for the porties herein, to file writlen submissions once the pleodings ore complete on record. - 30 This Courl hos looked ot the offidovil of service filed with the Court Registry on 251h . Jonuory, 2022, ond finds thol the process server overred in porogroph 2- 3 thot he received heoring nolices to be served upon the Respondenls. Thoi the Choirperson colled the Respondenls who informed him thot they were outside bul would pick lhe nolices from his office upon their return, ond ihot copies of the notices were left with the Choirperson who refused 10 sign the copy returned to - 35 Court.

It is worth noting that Counsel for the Applicants served the Respondents with $\mathsf{S}$ hearing notices, and did not serve the Respondents with the application as directed by this Court.

In the given circumstances, this Court finds that the Applicants did not comply with the order of the Court to serve the Respondents with the application; such

conduct by the Applicants amounts to abuse of Court process. (See Uganda Land 10 Commission Vs James Mark Kamoga & Anor SCCA No. 8 of 2004 on what amounts to abuse of Court process)

The Applicants who seek justice must be seen to do justice.

In the result, this application is dismissed for non service under Order 5 Rule 3(1) (a) of the Civil Procedure Rules, SI 71-1. 15

Dated, signed and delivered electronically this 11th day of January, 2023.

SUSAN ABINYO **JUDGE** $11/01/2023$

$20$