Matayo Kyaligonza v Kayokamu EWngineering Limited (Civil Miscellaneous Application No. 1802 of 2020) [2021] UGHCLD 90 (30 July 2021)

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

# **MISCELLANEOUS APPLICATION NO. 1802 OF 2020**

## ARISING FROM CIVIL SUIT NO. 698 OF 2020

MATAYO KYALIGONZA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

KAYOKAMU ENGINEERING LIMITED::::::::::::::::::::::::::::::::::::

# **BEFORE: HON. JUSTICE JOHN EUDES KEITIRIMA**

## **RULING**

This is an application brought by way of Chamber Summons under Section 98 of the Civil Procedure Act Cap 71, Order 5 Rule 1 (1), (2) & (3) of the Civil Procedure Rules S I 71-1.

The Applicant is seeking for orders for:

- 1. A declaration that the Respondent never served the Applicant with the summons and the plaint at all. - 2. A declaration that the purported dropping or dumping of the summons and plaint at the Secretary Foreign Affairs Ministry in Kampala perse without leave of court was unlawful and does not amount to service of the applicant in law. - 3. That the suit vide H. C. C. S No. 698 of 2020 be dismissed with costs under Order 5 Rule 1 (3) of the Civil Procedure Rules. - 4. In the alternative, the applicant be granted leave to file his defence out of time.


5. The respondent pays the costs of this application and the main suit.

The grounds of the application are contained in the affidavit of the applicant who deposes inter alia:

- 1. That the applicant was not served with summons to file a defence. - 2. That the Respondent never sought leave of this court to serve the applicant out of jurisdiction in Burundi. - 3. That the purported delivery of the summons and the plaint at the Foreign Affairs Ministry in Kampala without leave of Court is unlawful and does not amount to service on the applicant. - 4. That in the alternative, the applicant's failure to file a defence within the prescribed time is not due to his fault. - 5. That the interests of justice is in favour of granting the reliefs sought.

In his affidavit in reply **Ssalongo Gaster Wamala** states on behalf of the Respondent that:

- 1. That he is the Director in the respondent company. - 2. That he is informed by his lawyers that this Court on the $16<sup>th</sup>$ day of September issued out court summons to be served on the defendant. - 3. That through their lawyers the Applicant being a Ugandan Ambassador to Burundi (Public Service), service of the court process was served through the Permanent Secretary Ministry of Foreign Affairs by their lawyers. - 4. That it is therefore not true that the Applicant was not served with summons in this case as he alleges and the applicant due to his character of frustrating service of court process on him, their lawyers have always effected service of court process on him through the

$m$ erma<br>2012 12021

Permanent Secretary Ministry of Foreign Affairs since he is a Public Servant.

- 5. That the Applicant previously has received court process served through the Permanent Secretary Ministry of Foreign Affairs and indeed on that occasion he even instructed his lawyers M/S WYMO Advocates to defend him and therefore he cannot claim that he was not served with Court Summons. - 6. That the purported letter by a one Sseremba Mark is full of falsehoods and it is strange to claim that they have never facilitated the Permanent Secretary to effect service of the Court process on the Applicant yet previously the Applicant has been served through the same office without requesting for any money as delivery cost. - 7. That he has been informed by the defendant's lawyers that the purported letter by a one Sseremba Mark dated 10<sup>th</sup> November 2020 and marked as annexture "G" has never been served on them and lacks proof of service. - 8. That it is strange that almost two months from the date of service onto the Permanent Secretary a one Sseremba Mark purports writing to Court returning summons unserved. That this clearly shows the connivance with the Applicant to defeat the course of justice. - 9. That since the Applicant seeks among other things an order to file a defence out of time, this was a clear acknowledgement of having been served with the court process and therefore is estopped from claiming that he was never served with the Court process. - 10. That the applicant was in the Country contesting in the Central Executive Committee member race representing western region therefore was in the country and he is only trying to frustrate the cases against him which actions he has done on several occasions previously.


- 11. That he has been advised by his lawyers that since the Applicant seeks leave of court to file his defence out of time this court should be pleased to grant him his prayer. - 12. That he has been advised by his lawyers that this application is moot and an abuse of court process and this court should strike it out with all the contempt it deserves.

Counsel for the applicant and counsel for the respondent filed written submissions the details of which are on record and which I have considered in determining this application.

## The issues to determine now are:

- 1. Whether service on the applicant by the respondent was done. - 2. If service was not effected whether H. C. C. S No. 698 of 2020 should be dismissed. - 3. In the alternative whether the applicant can be granted leave to file a defence out of time.

I will combine all the issues while resolving them as they can be resolved concurrently.

The Respondent justifies his service of the Court summons on the Permanent Secretary Ministry of Foreign Affairs because the Applicant is a Ugandan Ambassador to Burundi and therefore a Public Servant. The Respondent stated that the Applicant had ever been served through the Permanent Secretary of the Ministry of Foreign Affairs.

Order 5 Rule 20 (1) of the Civil Procedure Rules provides that "Where the defendant is a public officer in civil employment, or is the servant of a railway company or local authority, the court may, if it appears to it that the summons may be most conveniently so served, send it for service on the defendant to the head office in which he or she is employed, together with a copy to be returned by the defendant."

I agree with the submission by counsel for the applicant that it is for court to determine the most convenient way to effect service on a public officer in civil

May 17071

$\mathbf{4}$

employment. So ideally the respondent should have moved court to be allowed to serve the respondent through the Permanent Secretary Ministry of Foreign Affairs.

The applicant now acknowledges that he finally got the court summons and Plaint as a result of this court providing them to him.

The applicant has pleaded in the alternative that he be granted leave to file his defence out of time.

In the interests of substantive justice, I will allow the applicant to file his defence out of time. This should be done within a period of 14 days from the date hereof. I will grant the costs of this application to the Applicant.

Jne gr

Hon. Justice John Eudes Keitirima 30/07/2021