Immanuel Agro Limited v Express Airway Services Limited (Miscellaneous Application 111 of 2022) [2022] UGCommC 187 (7 October 2022)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION)

### MISC. APPLICATION NO. 111 OF 2022

## IMMANUEL AGRO LIMITED ::::::::::::::::::::::::::::::::::::

#### VERSES

### **EXPRESS AIRWAY SERVICES LIMITED T/A BIDAIR CARGO ::::::::::::::::::::::::::::::::::::**

### **BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI**

#### **RULING**

I have read the pleadings and written submissions of the parties in this matter.

Counsel for the Respondent raised a preliminary point of law to the effect that the Notice of Motion was served on the Respondent out of the prescribed time and the Application is therefore incompetent and should be dismissed under Order 5 rules (1) (2) and (3) of the Civil Procedure Rules.

Misc. Application 111/2022 was filed in Court on 31/1/2022 and was endorsed by the Registrar on 28<sup>th</sup> February 2022. The said Application was served on the Respondent on 2/6/2022; more than three months after the endorsement of the same by Court. Order 5 rule $1(2)$ of the CPR provides:

"Service of summons issued under sub-rule (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."

Counsel for the Respondent cited case law that establishes that a Notice of Motion on Chamber Summons are treated as summons and must be served in the manner and within the time prescribed in Order 5 of the CPR; which I fully associate myself with (see Diary Corporation v Opio (2001-2005) HCB 113; Fredrick James Junju &

## Another v Medhvani Group Limited & Another M,A, 688/2015; Orient Bank Ltd v Avi Enterprises Ltd C. A OO2/2003),

In the present matter, the Applicant ought to have served the present Application within twenty-one days from 281212022 when the said application was endorsed and issued by Court i.e. by 2L1312022; but did not do so.

Further, the Applicant did not apply to Court to have time extended to serve the application in issue as provided under Order 5 rule 1(2) of the Civil Procedure Rules.

In the premises; I find that the present application was seryed out of time prescribed by law and no application for extension of time to serye the same was made by the Applicant; and the same is accordingly dismissed with costs to the Respondent.

I do not find it necessary to address the rest of the issues raised by the Respondent's Counsel at this point.

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HON. LADY JUSTICE ANNA B. MUGENYI DATED l.tp..!lsl.t