Peter Kaswarra Sanyu Kagoro v Sam Murungi Kagoro (HCT-01-CV-MA-0106-2024) [2025] UGHC 538 (14 July 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL HCT-01-CV-MA-0106-2024 (ARISING OUT OF HCT-01-CV-CA-AC-0135-2009) PETER KASWARRA SANYU KAGORO :::::::::::::::::::::: APPLICANT VERSUS SAM MURUNGI KAGORO :::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA**

# **RULING**

## **Introduction**:

- 1. The Applicant filed this Application under Section 237 and 332 of the Succession Act as Amended, Section 98 of the Civil Procedure Act, and Order 52 Rules 1 and 3 of the Civil Procedure Rules. The Applicant seeks Orders that; - - **(1)The Respondent distributes and completes the administration of the estate of the late Tefiro Rusoke Kagoro to the rightful beneficiaries.** - **(2)The Respondent be ordered to file the inventory and give full account of the estate of the late Tefiro Rusoke Kagoro.** - **(3)The Respondent be restrained from exclusive occupation, use and ownership of the residential holding of the late Tefiro Rusoke Kagoro.**


### **(4)Costs of the Application be in the cause.**

### **Grounds of the Application**:

- 2. The grounds upon which this Application is based are set out in the Applicant's Affidavit which is annexed to the Application. The brief grounds of the Application are that; - - (1)The deceased died intestate and the Applicant was named as a guardian in the last will together with Swizin Muganda, Benezeri Nyakubiiha, Selevasta Karatunga and Eric Sabiiti Komunguli Kagoro who are now also deceased and the Applicant is the only surviving guardian. - (2)The Respondent has since the obtaining of letters of administration been mis-administering the estate property and misapplying the estate's process from the residential holding and adjoining land. - (3)The Respondent has not filed the inventory and a true account of the estate despite being ordered by Court and has exclusively taken over the residential holding and is using it for his sole benefit. - (4)The Respondent has no right under the Succession Laws to keep, occupy and use the residential holding in exclusion of other rightful beneficiaries and the Respondent is in blatant contempt of Court which required him to distribute the estate property to the rightful beneficiaries.


- (5)The residential holding and adjoining land was to be utilised as family burial grounds but the Respondent cannot allow the relatives to be buried there. - (6)It is in the interest of justice that this Application be allowed.

## **Representation and hearing**:

3. The Applicant was represented by *M/s Abeine-Buregyeya & Co. Advocates*, who filed written submissions. However, the Respondent remained unrepresented and crucially, did not file an Affidavit in Reply. The court record reflects that the matter was scheduled for hearing on 6 th January 2025, and subsequently on 17th February 2025. On both occasions, neither the Applicant nor the Respondent appeared before the Court. Furthermore, and of paramount concern to this Court, there is no evidence by way of an affidavit of service on the court file indicating that the Respondent was ever duly served with the Application.

# **CONSIDERATION BY COURT**:

4. This Court has given due consideration to the procedural posture of this Application. Two fundamental issues stand out: service upon the Respondent and the non-appearance of both parties.

## Service upon the Respondent:


- 5. Service of court process is not merely a formality; it is a cornerstone of natural justice and a constitutional imperative for a fair hearing. **Article 28(1)** of the **Constitution of the Republic of Uganda, 1995**, guarantees every person the right to a fair hearing. A fair hearing necessarily implies that a party must be aware of the proceedings against them and be given an opportunity to present their case. - 6. **Order 49 Rule 2** of the **Civil Procedure Rules** provides that: "*All orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons."* **Order 49 Rule 2** implies that the rules under **Order 5** of the **Civil Procedure Rules** also apply to Applications like the instant one. (See: **The Registered Trustees of Madi West Nile Diocese vs. Lucia Eyotaru and 7 others, HCMA. No.43 of 2021**). **Order 5 Rule 10** of the **Civil Procedure Rules** is to the effect that service of summons shall be made to the defendant in person or his/her appointed agent. **Order 52 Rule 1** of the **Civil Procedure Rules**, under which this application is partly brought, requires that all applications be made by motion and ordinarily implies notice to the opposing party unless explicitly stated otherwise. **Order 52 Rule 2** provides that; *"No motion shall be made without notice to the parties affected by the motion…"* - 7. The Supreme Court of Uganda, in numerous decisions, has emphasized the indispensability of proper service. In **Yahaya Kasule vs. The Attorney**


**General, Civil Appeal No. 11 of 1998**, the court reiterated that "service of court process is fundamental. Where there is no service or proper service, any judgment or order flowing from such proceedings is a nullity." Without proof that the Respondent was put on notice of the claims against him, it would be a grave injustice to proceed. The court cannot assume knowledge or simply rely on the Applicant's submissions without ensuring that the other party has been afforded their right to respond. The absence of an affidavit of service confirming personal service or a recognized substituted service on the Respondent leaves this Court with no assurance that the Respondent is aware of the allegations and the relief sought against him. This is a fatal defect that goes to the root of the court's jurisdiction over the Respondent.

#### Non-Appearance of Parties:

8. **Order 9 Rule 17** of the **Civil Procedure Rules** states that*; "when neither party appears when the suit is called on for hearing, the court may make an Order that the suit be dismissed."* Parties are expected to diligently prosecute their cases and none attendance may be interpreted to mean that they lost interest in the matter. On two separate occasions, 6 th January 2025, and 17th February 2025, the matter was called, and both the Applicant and the Respondent failed to appear. While the primary issue is the lack of service on


the Respondent, the Applicant's failure to attend court despite having filed the application also points to a lack of diligent prosecution.

9. **Section 37** of the **Judicature Act, Cap. 16**, empowers the High Court to grant "all such remedies as any of the parties to the cause or matter is entitled to in respect of any legal or equitable claim so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicity of legal proceedings avoided." However, this power must be exercised within the bounds of established procedure and natural justice. To proceed or simply adjourn indefinitely without ensuring proper service and diligent prosecution would be an abuse of court process and lead to an indefinite pendency of cases.

#### **Conclusion**:

10. The absence of proof of service on the Respondent renders this application procedurally incompetent. Furthermore, the failure of both parties to attend court on the scheduled hearing dates demonstrates a lack of diligent prosecution, particularly on the part of the Applicant who initiated these proceedings. The Court cannot countenance an Application where the opposing party has not been properly notified, nor can it indefinitely hold a file where parties show no interest in prosecuting their claims.


11. For these reasons, the Court finds that it cannot proceed with the merits of this Application. Therefore, this Application, **HCT-01-CV-MA-0106-2024**, is hereby dismissed with each party to bear his own costs given the procedural irregularities and the non-appearance of both parties.

**Dated at Fort Portal this 1st day of July 2025**


Vincent Wagona

**High Court Judge**

# **FORTPORTAL**

**Ruling delivered on 14th July 2025**