Registered Trustees of Kampala Arch Diocese v Muyimba & 50 Others T/A Nsambya Market Vendors Association & Capital Shoppers (Miscellaneous Application 2117 of 2024) [2025] UGHCLD 18 (22 January 2025)

#### **THE REPUBLIC OF UGANDA**

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

#### **(LAND DIVISION)**

#### **MISCELLENEAOUS APPLICATION NO.2117 OF 2024**

#### **(ARISING FROM CIVIL SUIT NO. 707 OF 2017)**

#### **REGISTERED TRUSTEES OF KAMPALA ARCH**

**DIOCESE::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

# **1. MUYIMBA MICHEAL & 50 ORS T/A NSAMBYA MARKET VENDORS ASSOCAITION**

**2. CAPITAL SHOPPERS LTD :::::::::::::::::::: RESPONDENTS**

#### **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA**

# **RULING**

#### *Introduction;*

1. The applicant hereinafter referred to as the Registered Trustees of Kampala Arch Diocese brought this application against Muyimba Micheal and 50 others

together with Capital Shoppers Ltd hereinafter referred to as the respondents for orders that:

- i) Third-Party Notice by the 2nd Respondent be struck out for having been filed out of time. - ii) In the alternative, leave be granted to the Applicant to file its Written Statement of Defence (pursuant to the Third-Party Notice) out of time. - iii) Costs of this application be provided for.

# *The applicant's evidence;*

2. The application is supported by the affidavit of Francis Buwule Kabonge which briefly states as follows:

i) That the Third-Party Notice was filed and served by the 2nd Respondent to the Applicant.

ii) That he mistakenly did not assign a colleague to respond to the Third-Party Notice something he had planned to do before proceeding for his leave.

iii) That he only realized this mistake upon his return from his leave and the time to file a defence had expired. iv) That it's only just that the Third-Party Notice be struck off the record for having been filed out of time or

leave is granted to the Applicant to file the Written Statement of Defence out of time.

#### *The respondents' evidence;*

3. The 2nd respondent responded to the application by way of an affidavit in reply deponed by Opio Moses which briefly states as follows:

i) That on 30th May 2024, Miscellaneous Application No. 811 of 2024 which sought to file a third party notice out of time and leave to serve a third-party notice upon the Registered Trustees of Kampala Arch Diocese came up for hearing.

ii) That the parties consented in court to have the Third-Party Notice filed out of time and that the third party (The Registered Trustees of Kampala Arch Diocese) be served with the third-party notice in respect of Civil Suit No. 707 of 2017.

iii) That the third-party notice was filed on 26th June 2024 and served upon the third party on 10th July 2024 within the required statutory period of 21 days.

iv) That from my experience as an advocate there is no law which requires a third-party notice to be filed within

15 days from the date the order is made.

v) That in regards to the Applicant filing its Written Statement of Defence out of time, the 2nd Respondent has no objection to the prayer.

# *Representation;*

4. The applicant was represented by Counsel Nsimbi Timothy of M/S Buwule & Mayiga Advocates whereas the 2nd respondent was represented by Sekabanja & Co. Advocates.

# *Issues for determination;*

- *i) Whether the third-party notice should be struck out for being filed out of time without leave of court?* - *ii) Whether the Applicant has demonstrated sufficient cause for the delay to warrant leave to file its Written Statement of Defence out of time.*

# *Resolution and determination of the issues;*

#### *Issue 1;*

5. Counsel for the applicant submitted that under Order 1 rule 14(4) of the Civil procedure rules, a thirdparty notice ought to be filed within the time limited for filing a defence.

6. Counsel added that the time limit for filing a defence is 15 days according to Order 8 rule 1 subrule 2 of the Civil Procedure Rules and that the 2nd respondent had 15 days to file the third notice after it was granted to it. 7. The respondent obtained leave to issue a third party notice on 30th May 2024 however the notice was filed on 26th June 2024 way beyond the prescribed timelines. 8. Order 1 rule 14 (1) of the Civil Procedure Rules provides thereof that where a defendant claims to be entitled to contribution or indemnity over or against any person not party to the suit, he or she may, by leave of court, issue a notice to that effect.

9. Order 1 rule 14(4) of the Civil Procedure Rules states that the said notice shall state the nature and grounds of the claim and shall *unless otherwise ordered* by court, *be filed within the time limited for filing a defence*.

10. Order 8 rule 1(2) provides that a written statement of defence unless court directs otherwise should be filed within 15 days after service of summons.

5 *11.* To that end, a defendant that is found to be out of time ought to seek leave of court for sufficient cause to file the defence out of time or rely on it*. (See; Stop and See (U) Ltd v Tropical Africa Bank Ltd MA No.333/10).*

*12.* I believe and from established practice and the law, that for purposes of filing a third party notice the time within which it should be filed starts counting from the date of the order granting the applicant leave to issue the notice to the third party.

*13.* I have carefully looked at the third-party notice filed by the 2nd respondent and it expressly states that the 2nd respondent filed the same on the 26th day of June 2024 when issuing such notice was granted on the 30th day of May 2024.

*14.* I have also read the affidavit in reply for the 2nd respondent for any explanation to justify the delay but none was stated therein. The affidavit in reply for the 2nd respondent in rebuttal and in what seems as a justification for filing the notice out of time only states that the deponent knows of no law that requires a thirdparty notice to be filed within 15 days from the date the order is made.

*15.* It is the finding of this court that the third-party notice by the 2nd respondent, without a sufficient cause, was filed out of time contrary to the requirements in Order 1 rule 14(4) of the Civil Procedure Rules and is hereby struck-out.

*16.* In the premises, the application succeeds with the following orders:

i) The third-party notice by the 2nd respondent filed on the 26th day of June 2024 is hereby struck out for having been filed out of time.

ii) The 2nd respondent shall bear the costs associated with the application.

# **I SO ORDER**.

#### **NALUZZE AISHA BATALA**

#### **Ag. JUDGE**

# **22nd/01/2025**

# **Delivered Electronically via ECCMIS on the 22nd day of**

# **January 2025.**