Henry Mpima and Others v Nambwere Erina Bisobye Nalongo and Others (Miscellaneous Application No. 3296 of 2024) [2025] UGHCLD 112 (20 June 2025)

## **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

**MISCELLANEOUS APPLICATION NO. 3296 OF 2024**

## **ARISING FROM CIVIL SUIT NO. 823 OF 2024**

#### **1. HENRY MPIIMA**

- **2. FR. LWEMALIKA EUSTACHIUS** - **3. KYEYUNE ISAAC ……………………………. APPLICANTS**

#### **VERSUS**

**1. NAMBWERE ERINA BISOBYE NALONGO 2. SSEBULIME ERIC**

**3. MUYANJA TOM …………….. RESPONDENTS**

#### **BEFORE HON. LADY JUSTICE FLAVIA NASSUNA MATOVU**

## **RULING**

- 1. This application was brought under the provisions of S.98 of the Civil Procedure Act, 0.6 r.26 and 30, 0.8 r.9, 0.9 r8&11(2) plus 0.52 rr 1,2, &3 of the Civil Procedure Rules. It was seeking for orders that; - a) an order be issued striking out the joint written statement of defence filed in HCCS. No. 823 of 2024 and the said suit be fixed for formal proof. - b) an order be issued striking out the counter claim in HCCS. No. 823 of 2024 against the 2nd and 3rd counter defendants for want of service and that costs of the application be

provided for. It was brought by notice of motion which was supported by affidavits that ware by the applicants.

- 2. Grounds of the application were laid in the notice of motion and affidavit in support. Briefly the grounds were that; - a) The 1st applicant filed HCCS. No. 823 of 2024 against the respondents on 3/9/2024 and Summons to file defence were duly served on the respondents on 19/9/2024. - b) The respondents filed written statement of defence via ECCMIS on 3/10/2024 at 5.52 pm and also filed another written statement of defence and counter claim on the same day at 9.03 pm without withdrawing the previous written statement of defence or even seeking leave of court to amend the previous written statement of defence. - c) In the said written statement of defence and counter claim the respondent added the 2nd and 3rd applicants as counter defendants but never served them. - d) That the 2nd and 3rd applicants only learnt of the counter claim much later through the 1st applicant. - e) That the subsequent written statement of defence was not signed. - f) That for all the reasons advanced above the application should be allowed. - 3. The respondents were duly served with this application but did not file any affidavit in reply and did not also appear in court on the day the application was scheduled. The matter therefore proceeded exparte in accordance with the provisions of 0.9.r.20 of the Civil Procedure Rules.

4. Counsel for the applicants filed written submissions which I carefully studied and need not reproduce them here.

# **5. DECISION OF COURT**

After carefully studying the entire record of proceedings, the submission of counsel for the applicant and the relevant law I have established as follows:

- a) HCCS. No. 823 of 2024 was filed at court on 3/9/2024 and Summons to file defence were issued by court on 18/9/2024. - b) The respondent/defendants filed written statement of defence and counter claim on 3/10/2024 at 9.03 pm and the same was endorsed by Deputy Registrar on 10/10/24 at 1.22 pm. - c) The written statement that was allegedly filed on 3/10/2024 at 5.52 pm as claimed by counsel for the applicants is not reflected on the ECCMIS. It is therefore clear that the defendants filed only one written statement of defence on 3/10/2024 at 9.03 pm. Perusal of said written stamen of defence and counter claim shows that the same was duly signed by counsel for the defendants on 30/9/2024 and there is therefore no need to strike it off as prayed by counsel for the applicants. - d) However, perusal of the said written statement of defence and counter claim shows that it introduced new parties to the case i.e.2nd and 3rd applicants. 0.8 r. 9 provides that where any person mentioned in the counter claim is not a party to the suit, he or she shall be summoned to appear by being

served with a copy of the defence, which shall be served in accordance with the rules for regulating service of summons. I must note that the rules regulating service of summons are enshrined in O.5 of the Civil Procedure Rules. 0.5 r 1(2) provides interalia that service of summons shall be effected within 21 days from the date of issue. 0.5 r 1(3) provides that where the said service is not effected within 21 days from the date of issue the suit shall be dismissed without notice.

- e) In the instant case it is clear that the counter claim was endorsed by court on 10/10/2024. The same ought to have been served on the 2nd and 3rd applicants within 21 days from 10/10/2024. There is nothing on record to show that this was done and for that reason the same is accordingly hereby struck off as against the 2nd and 3rd applicants/counter defendants. - f) Counsel for the applicant also called upon court to strike off the counter claim for non-payment of court fees. However, perusal of the record shows that a sum of Ug.shs. 150,000/= was paid as court fees on 3/10/2024. I have therefore not found reason to strike off the written statement of defence and counter claim as against the 1st applicant.

## **6. FINAL ORDERS.**

This application is partially allowed as follows;

a) The counterclaim in HCCS. No. 823 of 2024 against the 2nd and 3rd applicants /counter defendants is hereby struck of for want of service.

- a) HCCS. NO. 823 of 2024 between the respondents / plaintiffs and 1st applicant should be heard on merit - b) Since the respondents did not oppose this application, the applicant shall meet their costs for the same.

**DATED at Kampala this 20th day of June 2025.**

**JUDGE.**