Nanvubya & 4 Others v Kanyerezi & Another (Miscellaneous Application 921 of 2024) [2024] UGHCLD 189 (18 July 2024)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION**

**MISCELLENOUS APPLICATION NO. 921 OF 2024**

*(ARISING FROM CIVIL SUIT NO.1369 OF 2023)*

- **1. JOICE NANVUBYA (Suing through her lawful attorney Fred Wamala)** - **2. HUSSEIN KAWOOYA** - **3. CISSY MILLY NABUNYA** - **4. EDWARD MUKIBI** - **5. RAYMOND MUGWANYA (All suing as beneficiaries to the estate of the late Eva Manjeri Nalwanga) ::::::: APPLICANTS**

# **VERSUS**

# **1. DANIEL KANYEREZI**

**2. MILLY NANSIKOMBI KANYEREZI :::::::::::::::::: RESPONDENTS**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

- 1. This was an application by notice of motion brought under Section 98 of the Civil Procedure Act, Order 8 rule 1,2 and Order 52 rules - 1, & 3 of the Civil Procedure Rules (CPR) for orders that: - - i) That the written statement of defence filed by the respondents in Civil Suit No.1369 of 2023 be struck off record for having been filed out of time.

ii) Costs of the application be provided for.

#### *Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by the 4th applicant which briefly states as follows; - i) That on the 21st of November 2023, the applicants filed Civil Suit No.1369 of 2023 against the respondents and one Ronald Lubowa and Robinson Sentongo for orders among other reliefs a declaration that they were in breach of the land sharing agreement executed among themselves and the applicants. - ii) That court issued summons in the said suit on the 28th day of November 2023 and the same were duly served upon the respondents on the 4th day of December 2023. - iii) That the respondents had 15 days from the 4th of December 2023 to comply with the said summons. - iv) That the 15 days lapsed on the 19th of December 2023 without the respondents filing their written statement of defence on record.

- v) That we later learnt from a search via ECCMIS that the respondents had filed their written statement of defence on the 8th day of February 2024 that's 50 days out of the prescribed time. - vi) That the respondents have never filed any application for extension of time within which to file the said written statement of defense neither have they ever filed any application seeking leave of court to validate the said written statement of defense filed out of time.

#### *Respondent's evidence;*

- 3. The application was responded to by an affidavit in reply deponed by the 2nd respondent which briefly states as follows; - i) That the instant application stands overtaken by events, misconceived, incompetent tainted with falsehoods. - ii) That I leant of the main suit during court in a criminal matter at the Entebbe chief magistrate court where the lawful attorney of the 1st applicant is an accused person and the 1st respondent as a complainant.

- iii) That I requested counsel for the applicant to effect service upon lawyers of M/s Barnabas D. K Dyadi & Co. Advocates Kiira house Kampala, however the applicant's process server instead served M/s Eric-Kiingi & Co. Advocates Kiira House the next law firm. - iv) That M/s Eric-kiingi & Co. Advocates are unknown to the respondents and they do not have instructions to represent the respondent. - v) That the written statement of defense was filed on the 8th of February 2024 after me availing to my lawyers the copy of the plaint which I got from Entebbe court during criminal proceedings in February 2024.

# *Representation;*

4. The applicant was represented by Fahim Matovu of M/s Katende, Ssempebwa & Co. Advocates whereas there was no representation from the respondents though they were dully served. Both parties filed their affidavits only which I have considered in the determination of this application.

#### *Issues for determination;*

- **i) Whether the written statement of defence in Civil Suit No.1369 of 2023 should be struck off record for being filed out of time?** - **ii) What remedies are available to the parties;**

#### *Resolution and determination of the issues;*

- 5. It is a principle of law that a defendant who has been served with summons to file a defence shall unless some other further order is made, file his or her defence within 15 days from after being served with the said summons. *(See; order 8 rule 1(2) of the civil procedure rules and Hadondi Daniel vs Yolam Egondi CA 67 of 2003)* - 6. In the instant application, the applicants aver that the respondents were served with the plaint and summons to file a defense through their lawyers' M/S Eric-Kiingi & Co. Advocates as instructed by the respondents, however the respondents claim that they have never instructed Eric-Kiingi & Co. Advocates to represent them in this matter.

- 7. The respondents further aver that their lawyers M/s Barnabas D. K Dyadi & Co. Advocates got to know of the said suit when the respondents availed to them the copy of the plaint in February 2024 and the said lawyers filed the respondents written statement of defense in the 8th of February 2024 as per the ECCMIS record. - 8. The perusal of the affidavit of service indicates that the applicant's process server contacted the respondents regarding the service of the plaint and summons to file a defence, the respondents advised the process server to effect service of the said pleadings onto M/s Eric-Kiingi & Co Advocates. - 9. The respondents later aver that M/s Eric-Kiingi & Co. Advocates have never represented them and that the lawyers that have instructions to represent the respondents are M/s Barnabas D. K Dyadi & Co. Advocates which is located next door after Eric-Kiingi & Co. advocates and that there is a possibility that the applicant's process server was mistaken about the address of the respondents' lawyers, something that was not rebutted by the applicants. - 10. I take note of the averments made by both parties, this court is vested with inherent powers to ensure that the ends of justice are met.

- 11. For purposes of administering substantive justice and for the interests of justice, this honorable court is of the view that the written statement of defense filed out of time by M/s Barnabas D. K Dyadi & Co. Advocates who happen to be representing the respondents is hereby validated by this court. - 12. In the result, the instant application fails and the same stands dismissed by this honorable court with no orders as to costs.

# **I SO ORDER.**

#### **NALUZZE AISHA BATALA**

**JUDGE**

**18th -07-2024**