Nalongo Kezia and 2 Others v Sentamu and 3 Others (Miscellaneous Application No. 1766 of 2021) [2023] UGHCLD 56 (9 March 2023)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

# **MISCELLANEOUS APPLICATION NO.1766 OF 2021**

## (Arising from Civil Suit No.593 of 2015)

#### 1. NALONGO KEZIA BAYIGA

- 2. SSEMWANGA BLASIO - 3. YIGA GEOFREY::::::::::::::::::::::::::::::::::::

$\mathsf{S}$

## **VERSUS**

- 1. AIDA SENTAMU - 2. JOSEPH SENTAMU - 3. KASIBANTE PETER (Administrators of the estate of the late JAMES SENTAMU - 4. KASUMBA DAVID (Administrator of the estate of the late 15 **BLASIO** NAKATANZA):::::::::::::::::::::::::::::::::::

## Before: Lady Justice Alexandra Nkonge Rugadya.

# Ruling.

This application brought by notice of motion under the provisions of **Order 9** rule 22 & 23 and Order 52 rule 1 of the Civil Procedure Rules SI 71-1 seeks orders that the order dismissing **Civil Suit No.593 of 2015** be set aside, and Civil Suit No.593 of 2015 be reinstated and heard on merit. It also seeks that costs of the application be provided for.

# Grounds of the application:

The grounds in support of the application are contained in the affidavit in support of Mr. Yiga Geofrey, the 3<sup>rd</sup> applicant herein who deponed that the

(In lost)

applicants instructed M/s Ktgemba & Matorru Adrncates to represent them in Ctril Sutt .l\Io.593 oJ 2075 and that the said lawyers have been vigorous in following up the same, and that all the necessary documents were filed but the suit was dismissed on 23'd April,2O2l on grounds that no steps had been taken by the applicant.

However it came to the attention of court that one of the parties against whom the suit was fiIed Sentamu James died before the case could be completed. The respondents were tasked to apply for a grant of letters administration which was granted on 19ft June, 2O 19 by the Chief

Magistrates Court of Luwero. 10

> This court gave directives to have the pleadings amended pursuant to which an amended plaint was filed in this court on 1Sft September, 2020 while the respondents filed their amended written statement of defence.

The l"t to 3rd defendants filed an amended WSD on l"t October, 2020.

On 23,4 April2021, the Deputy Registrar of this division dismissed Ctvtl Sutt . I\Io.593 of 2O21on grounds that no steps had been taken by the applicants since 3.d December,2O19 obviously in error given the fact that all pleadings were found to have been filed ready for hearing. 15

Since the respondents have been made aware of this application and instead of filing a reply on the merits of this application opted to raise the objection about what they believed was an irregularity in service of this application, I have weighed that against the prejudice the applicants are likely to suffer if denied the chance to be heard and I find that the balance is tipped in favour of the applicants. More so, as the decision to dismiss was based on the mistaken belief that nothing concerning this suit had been taking place from 3'd December, 2019. 20 25

It is therefore in the interest of justice that the order of this court dismissing Ctntl Sult J\Io.593 of 2015 is set aside, the case reinstated and heard on its merits.

30 No award of costs.

\'J"'t,

auho eff

Alexandra Nkonge Rugadya

Judge

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9<sup>th</sup> March, 2023. $\mathsf{S}$