Nalwanga and Others v The Administrator of the Estate of the Late Muwanga Yoweri Kaddu (Miscellaneous Application 983 of 2023) [2023] UGHCLD 195 (11 July 2023)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

## MISCELLANEOUS APPLICATION 0983 OF 20223

(Arising from Miscellaneous Cause No.080 of 2022)

- 1. NALWANGA LWANGA - 2. FRANCIS MUBIRU - 3. PAUL MUBIRU

$\mathsf{S}$

- 4. MUBIRU DAVID - 5. ABDUL NSUBUGA 10 - 6. NAMUSANGA MUBIRU:::::::::::::::::::::::::::::::::::

### **VERSUS**

# THE ADMINISTRATOR OF THE ESTATE OF THE LATE MUWANGA YOWERI KADDU:::::::::::::::::::::::::::::::::::

#### Before: Lady Justice Alexandra Nkonge Rugadya. 15

### Rulina.

The applicants through their lawyers *M/s Haguma Law Chamber & Advocates* filed this application under Section 98 of the Civil Procedure Act cap. 71, Order 1 rule 8 and Order 52 rules 1, 2, & 3 of the Civil Procedure Rules SI 71-1 (as **amended**) seek *ex-parte* orders that this court varies its orders made on directing 20 the applicants to serve the notice of the suit personally, and that the applicants be allowed to effect service by way of advertisement in a newspaper of wide circulation.

### Grounds of the application:

The grounds of the application are contained in the affidavit in support of Namusanga Namubiru, one of the applicants who stated inter alia that this court in 25 its ruling delivered on 1st December 2022 directed the applicants to effect personal service of the notice of the suit onto the intended persons on whose behalf/benefit the suit was intended to be instituted.

That this court also granted the applicants leave to represent other beneficiaries on the suit land, but the applicants have failed to effect personal service because the 30

Jules

intended persons are many, and scattered in different geographical areas which has made it hard to access them.

The applicants then prayed that court allows them to serve the intended persons by way of advertisement in a ne\Mspaper of wide circulation.

# 5 Deterrnlnation bu court:

The applicants in the instant case instituted Mlscellaneous Cause No. OOSO of 2O22, seekrrtg among others leave to represent the intended plaintiffs who have an actual existing interest in the land comprised in Busiro Block 555 Latud dt Bugerq Locdted ct Eussd Island reasurlng approxlmdtelg 660 o.cres.

<sup>10</sup> This court in granting the said application noted at page 3 th^at the applicants had attached a full list of 1O0 other interested parties and that their signatures had been appended, and that they had authorised the applicants to represent their interest in this matter.

15 It is evident from the above that the intended plaintiffs were very well known to the applicants who are presumed to have knowledge of their whereabouts and the fact that they can be reached.

I am disinclined to believe the applicants' assertion that the intended applicants cannot be found or accessed since they are scattered. In any case, the applicants have not adduced any proof that any attempts were made to effect service ofthe said notice on the intended plaintiffs.

Order 49 rute 2 oJ the Ctull Procedure Rules stipulates that all other court processes must be served in a ma-nner provided for service of summons. Such processes in the opinion include a notice of an intended suit.

25 Order 5 Rule 75 provides the procedure when a party refuses to acknowledge receipt. The process server is required to file a return to indicate the circumstances of the service and under Rule 17, the server may be examined to establish the circumstances and declare whether such service was duly effected or make other orders necessar5r.

30 According to Order 5 twte 76 oJ the Ctutl Procedure Rules, proof of service of summons is by an affidavit of service, stating the time when, the manner in which summons was served, and the name and address of the person, if any, identifying the person served and witnessing the delivery of summons.

In the present case, there is no such evidence to prove there was an attempt to effect service on the intended plaintiffs and in the absence of such evidence and no grounds therefore to warrant the grant of the prayers sought.

Accordingly, this application is dismissed.

$\mathsf{S}$

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### No orders as to costs.

I so order.

Alexandra Nkonge Rugadya $10$

Judge.

11<sup>th</sup> July, 2023.