Kabagambe & 2 Others v Kenafric Limited & Another (Miscellaneous Application 157 of 1993) [1994] UGHC 87 (3 January 1994)

Full Case Text

THE REPUBLIC OP UGANDA

: APPLICANTS VERSUS : RESPONDENTS1 BEFORE: THE HON. MR JUSTICE E"S. LUGAYIZI: R U L I N G: J. KABAGAMBE MARTIN LULE FELISTA NANDUDU KENAFRIC LTD.. KAMAU MWANGI 1. 2. 3. **5 5 :::** 1. 5 ::: 2. IN THE HIGH COURT OF UGANDA AT KAMPALA MISC. APPLICATION NO. 157 OF 1993

This application was made by way of chamber summons 25 and 26 of the Civil Procedure ' Rules for leave to serve summons out of the jurisdiction. The Applicants are Plaintiffs in two High Court Civil Suits Nos. 75A of"'1993 and 755 of 1993 and their application is supportf^by an affidavit sworn by their counsel under Order 5 rules 25(c), Mr. Rwakafuuzi.

giving rise to this application are as follows: On 8th January 5 "cc ider?t o the first Respondent being master of the second Respondent. affidavit, As per counsel's affidavit, and pleadings in issue (which are reformed to in the said affidavit) the facts' KXR 701, he rammed . UPK 527 while the second Respondent was driving motor-vehicle registration No. into the first Applicant's mini-bus registration No This took place immediately .after the Busi.a-Jinja Road junction on the Jinja-Tororo off Road at the Uganda Revenue ■•authority check point,, Damage was occasioned to the said mini-bus and personal injury to the second and third Applicants who were lawful passengers in the said mini-bus at the time of the accident. Both Respondents are Kenyans;,,u, a limited liability Company ahcl!' 1993,

I must say that I am mindful this court' must exercise The wise words below, V Korner (2) /79517 2 All 3. R. 554 at p.559 \$ p . 540 are still fresh in my mind© He said:- Right at the outset, of the degree of carefulness in dealing with this application© of Lord Radcliffe in Vitkovice Horni A Hutni Tezirstvo

n o o ''Service out of the juristic bion is, of course, an exceptional measure© The ordinary principles of international comity are invaded by permitting it, and quite apart from the question whether judgment will, or will not, ultimately be given against the persons served© It is only natural therefore, that the courts should approach with circumspection any request for leave to issue a writ against such a person .

Rule 25 of Order 5 which is visibly part of the law under which this application was brought, provides as follows:

- "25. Service out of the jurisdiction of a summons or notice of a summons may be allowed by the court whenever - o . (a) O O O o o o coo 000 - (b) OOOOOOOOOOOOOOOOOOOQOQOOOOOO - **•'(c)** any relief is sought against any person domiciled or ordinarily resident within the jurisdictiono"

blish that the Respondents are domiciled or are ordinarily neither of the two aforesaid made any attempt in that respect© According to 25, the above irregularity is serious enough to cause court to refuse an applicant leave to serve summons outside the jurisdiction\* Rudd J's ruling in a Kenyan case C©CO No\*54-1 of 1964- which is quoted in Donnebaum Vo Kurt Mikolaschek Z^9667 'S. A\* One would have therefore expected that counsel for the Applicants' affidavit or the pleadings herein'would estaresident within Ugandao Unfortunately,

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Be that as it may, I thought it appropriate to examine this application a little more. Rule 25 of Order 5 of the Civil Procedure Rules which is another vital portion of the law under which this application was made provides as follows:

> "25o Every application for leave to 1 serve such summons or notice on a defendant out of the Jurisdiction shall be supported by affliddvit or other evidence, stating' that! in the belief of the deponent the plaintiff has a good cause of action and showing in what place or country such defendant is or probably may be found, and whether such defendant is a commonwealth citizen or British protected person or not, and the grounds on which the application is made; and no such leave shall be granted unless it shall be made sufficiently to appear to; tSne' cou"t that the case i~ a oroper one for service out of the Jurisdiction! under this Order *o*"

it is evident that apart from a few other details such as the place or country where the defendant may be found, whether he is a commonwealth citizen or a good cause of action and that his case is a proper one for service out of the Jurisdin ction under the Order. mayfound, British protected person, an applicant seeking court's leave to serve summons out of the Jurisdiction has to show that he has Prom the above,

A study of the English and East African decisions such Solo as Vitkoviae hori.l ,'u ?Iutni Tezirstvo Ve Kovner (supra) Bonnebaum Vo Kurt Mikolaschek (supra) and Assanandl &.-ilsoriai \_ I . ' | | 'Ji IIH)! hlIIJJl (U) Ltd. Ve S. Ao Records /^952./ EoA\* 560 in the above resp^flit,

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to reveal that the to prove his case or substantiate it *o* action,, probable cause of action" Of course the applicant is not at this point expected All the court <would courts would readily grant out of the jurisdition0 appears leave to an applicant to serve summons ction if he established that he had "a good arguable at the time of the applicacase" i | be looking for from .the applicant at this juncture is whether he has a good arguable case or a probable cause of or "a

then the decisive factor in this application is whether the applicants herein have good arguable cases or probable causes of action entitling them to being granted leave by this court to serve summons out of the jurisdiction - If the above is the position of the law,

In answer to the above, counsel's affidavit merely averred that his clients' case is are With respect I all citizens of the Republic of Kenyao" have not found that helpful*<>* "a proper case for service outside the jurisdiction because the respondents/defendants

However **9** still on a further search for evidence on <record, ■of 1995 which were referred to in counsel's affidavit) I was able to discover that the said pleadings do not contain an averment to the effect that at the time of the accident the court had a closer look at the pleadings (i0e0 the two plaints in High Court Civil Suits Nos0 75^ ^nd 755 in issue, the second Respondent was acting in the course of his employment as the servant of the first Respondento

In the case of Mrso Kazoora Vo Attorney General Civil reported in /197j>/H • C • B •, p o 115 that an ommision in the Sgit No0 it was held, among other things, MMB 1 of 1972,

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capable of disclosing a cause **P lings such is the one at hand is a serious one because1**: | it readers the ::1«-idir.^s of actiono

the ruling in the above case was so I am willing to follow7 it herein as good I find that the pleadings herein do not disclose a—e^us^sujf action« lawo As **a** result, I am not aware that overturned,

that the Applicants herein have no good arguable cases or probable causes of action,, I am unable to grant them leave to serve the summons herein out of the jurisdiction., I accordingly dismiss the application., For that reason, It follows from the above therefore,

EoSo Lugayi>izJ-

**rwa>\*wi** AGo J U D G 5 5/1^99^0

3/1/199^: 3«20p.mo:

for the Applicants,, Ruling read in the presence of Mro Rwakafuuzi— Counsel

Mr, Byarnugisha - Court/Clerko

EoSo **Z'Z** *5 /* **Lu^a.yizi**

JU D G E AGo 5/1/199^0