Nakibinge and 2 Others v Arise and Shine International Outreach Ministries Limited (Miscellaneous Application No. 906 of 2022) [2023] UGHCLD 45 (27 February 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

#### **MISCELLANEOUS APPLICATION NO.906 OF 2022**

(Arising from Civil Suit No.419 of 2022)

- 1. NAKIBINGE MUHAMAD - 2. KALEMERA EDWARD - ZALWANGO KEZIA::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 10 ARISE AND SHINE INTERNATIONAL OUTREACH MINISTRIES LTD::::::::::::::::::::::::::::::::::::

#### Before: Lady Justice Alexandra Nkonge Rugadya.

#### Ruling.

#### Introduction:

This application is brought by way of Chamber summons under Section 98 of the Civil Procedure 15 Act, Cap. 71 and Order 5 rules 18 & 32 of the Civil Procedure Rules SI 71-1 for orders that the time for service of summons to file a defence to the plaint in Civil Suit No. 133 of 2022 on the respondent be extended, fresh summons issue, and that service of the summons on the respondent be effected by way of substituted service, by affixing a copy of the same in some conspicuous place in the court house, and/or publishing the same in any of Uganda's widely read Newspapers like New Vision 20 or Daily Monitor. It also seeks that the costs of the application be provided for.

The application is based on the grounds set out in the affidavit in support thereof deponed by Ms. **Komujuni Jane,** a court process server attached to *M/s Max Mwebembezi* & Co. *Advocates*. Briefly, that while Civil Suit No.133 of 2022 was filed on 11th February 2022, and the summons to file a defence issued, she received copies of the same to be served on the respondent from counsel for the applicants on 20th February, 2022.

That with the help of the 1st applicant who introduced her to counsel Muyanja Eddie, the deponent embarked on the process of locating the defendants in the matter, including the respondent herein and that they successfully traced and served the 1st & 3rd defendants.

However, they failed to trace the respondent ( $2nd$ defendant), its directors or secretary so as to serve 30 them as required by the Companies Act and the Civil Procedure Rules after all due diligence, reasonable inquiries and searches for their whereabouts were made but proved futile.

That neither the applicants nor their counsel have knowledge of any possible place or address to find the respondent so as to serve it in the ordinary way, and that because the applicants are still interested in pursuing their case to its logical conclusion, they would like to effect service on the respondent

35 through substituted service.

Verlovy

# Conslderatlon of the q',ollcotlon.

The issue ior consideration is whether or not this application merits the grant oforders to extend time for service of summons to flle a defence to the plaint in Clull Srrlt No.479 ol 2022 and for fresh summons rssue

# 5 Atq.lusls of the lsw.

Service of Court process is clearly provided in Order 5 of the Clvll Procedure Rules which stipulates that

o7. When a sult h.ls been dulg lnstltuted a summons mag be lssued to the defevdqnt-

orderlng hl'ar\_ or her to lTle a detence wlthl,r a tlme to be speclfled ln the sumtnot\$ or

10 otdering htm or her to qppear qnd qnsuer the clolm on a dag to be specfTed ln the summons.

2. Servlce of sum:mons lssued under subrr e 17) of thls ,'ule shqll be elfected wlthla twentg on.e dqgs from the date of lssue; except thqt the tlm'e mag be ertended on q,ppllcotlo,l to the court, ',l,q.de wttht l, J7fi,een dags afier the explrqtlon ol the tweatv 15 one dags, shot1Jlng sulficlent req,son,s lor the ertensloa."

The time within which to effect service may be sought by a party who has failed to effect service within the stipulated time under Order 5 rule lf2i but such application for extension must be made within 15 days after the expiration of the llrst 2l days mentioned above.

ln the instant case, the summons to file a defence issued on the 151h day of Febntary,2022 and should 20 have been served by gth March, 2022. "fhe application for extension of time within which to serve the summons on the respondent ought to have been filed 15 days laler, by 22"d March, 2022. The instant application was however filed on 20th May 2022, over a month later.

According to the ECCMIS, the applicants submitted this application for filing on 2oth l,Nlay, 2022 at 07:20pm. The record in respect of Clull Sult No.479 of 2022 reveals that on the same day, a letter

25 from ItI/s Klbuka Roshld & co. Adttocates d^ted 17th March, 2022 addressed to the Registrar of this court was uploaded onto the system at 07:06pm.

The contents of the above mentioned letter indicate that the firm .lws lfibuk(l Ro,shld & Co. Advocqtes had received instructions to represent the 1"r defendant in the main suit, as well as the respondent company. Counsel for the respondent in that letter also sought to have the matter dismissed on grounds

30 of non-service.

What is not clear however is whether or not the applicants herein or their representatives had knowledge of the above mentioned letter before filing this application. It is noteworthy that the applicants have since through the Electronic Court Case Management Information System filed their reply to the 3.d defendant's written statement ofdefence on 6th July 2022, a consent with the 3.d defendant filed on l4th July, 2022 and on 1 tth October 2022. The record also indicates that the applicants have since instructed

The applicants after receiving the notice of instructions cannot now claim that they have not been made aware of the respondent's address of service through the notice of instructions filed by its lawyers.

\tl"Z 2

While substituted service is a recognized mode of service of process in accordance with Order 5 rules 18(1) of the Civil Procedure Rules, it was meant to cater for circumstances where ordinary service upon a defendant within jurisdiction has been deemed impossible. The applicants in this case have not demonstrated that ordinary service upon the respondent is not possible or that it has been rendered futile.

On account of the fact that the matter in any case is to proceed against the 1st and 3rd defendants; and that it is the same firm representing the respondent and the 1st defendant, in the interest of justice therefore, I will allow the application to the extent that leave is granted to effect ordinary service to the respondent through his counsel.

$\mathsf{S}$

$\cdot\, .$

Alexandra N conge Rugadya

Judge

27th February, 2023.

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