Sensonga and 2 Other v Kalungi and & 7 Others (Civil Appeal No. 62 of 2021) [2023] UGHCLD 105 (18 April 2023)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## **LAND DIVISION**

## CIVIL APPEAL NO. 0062 OF 2021

## (Arising from Kajjansi Misc. Application NO. 084 of 2021)

- 1. SULAIMAN SENSONGA - 2. MUTAKABALA ABDUL RAHMAN::::::::::::::::::::::::::::::::::: - 3. ADAM JUMA ISLAMIC NURSERY & PRIMARY BOARDING SCHOOL

## **VERSUS**

- $10$ 1. FAHADI KALUNGI - 2. HABIB SEBANDEKE - 3. HARUNA WALAKIRA - 4. ADAM AHTAR .................................... - 5. FATUMA YUSUF - 6. RAHMA MUTUMBA 15 - 7. AMINA ZZIWA - 8. ASHA AMIR

## Before: Lady Justice Alexandra Nkonge Rugadya

$\mathsf{S}$

#### **JUDGMENT:**

## **Background**

This is an appeal against the ruling of His Worship Gimugu K. K, Magistrate Grade one at Kasangati upholding a preliminary objection while dismissing the 25 appellant's **Misc. Application No 084 of 2021** seeking a temporary injunction

Onlarg

against the respondent' acts of continued trespass onto the 3'd appellant's premlses.

The appellants l-rled llflsc. Appllcatlon No, 84 of 2O2l under Order 47 nrles 7(a), 2 c;nd 9 of the C'ltil Procedure Rules 51 77-7, seeking orders that <sup>a</sup> 5 temporary injunction be issued against the respondent restraining them and their agents from further access to the suit property until the final disposal of the main suit.

The grounds of the application are as detailed in the joint affidavit of the l"t and 2"d appellants Sensonga Sulaiman and Mutakabala Abdul Rahman respectively, which I need not reproduce here.

Through their counsel, the respondents however filed a preliminary point of law that the appeal was incompetent for not having been served within time and neither have the respondents applied for leave to serve the appeal out of time.

That to date the appeal has never been served on the respondents, save for the submissions which had been sent to the respondent through a WhatsApp message ot grh May, 2022. 15

He cited Order 49 Rule 2 of the Clull Procedure Ru les S. 77-7 to the effect that all orders, notices and documents shall be served in the manner provided for under service of summons.

20 However, that the same have never been served on the respondents to date and the time for doing so has already expired. The respondents accordingly prayed that the present appeal was incompetent and moved court to dismiss the same, with costs to the respondents.

The appellants did not file any rejoinder to this point law.

Ct"'"6 <sup>2</sup>

## Represe,1t(rtlon,:

Appellants were represented by M/s Katuntu & Co. Adrtocottes, while the respondents were represented by JII/s Credo Advocates.

# Consld.eratlon of the oblectlon bu court:

5 I have considered the submissions of counsel and considered the case law as cited.

An appeal is a suit within the deirnition of sectlon 2x oJ the Clvil Procedure Act, Cap. 77.(Orl.ent Bank Ltd as Avl Enterprlses Ltd C'tutl Appeal No. OO2 of 2013).

10 The memorandum of appeal and amended memorandum of appeal in this case were lodged by the appellants in this court on the l"t December,2O2l and 9th of December 202 1, respectively.

The mode of service of memorandum of appeal is not specihcally laid out in order 43 oJ the CPR., Recourse is therefore made to order 49 rute 2 of the CPR

15 which provides All orders, notices and documents reEtired to be serued...... sholl be serued in a manner prouided for in the seruice of summons.

Orders 5 of the CPR gives guidance on the manner of such service. In the case ot EJab Fannllg Inaest n,en,ts and T?adlng Compang Ltd. us Centenary RIJRAL Det elopment Bank LTD IICCS IVo, OOl of 2014, court noted that the use of the word shallunder order 5 rule 1(2) oJ the C'lull Procedure Rules prima facie makes mandatory the requirement to effect summons within twenty-one days.

Order 5 ntle 3 (b) of the CPR allows a party however to apply for extension of time where there is failure to adhere to the twenty-one days' rule. Without the application, court is required to dismiss the suit, without any notice.

It is also vital to note that under Order 5 ntle 76 ol the CPR a serving ofl-rcer is required in ali cases in which summons have been served to make, annex or

3 S"W'8

cause to be annexed to the original summons an affidavit of service, to state the time when and the manner in which the summons was served and the name and address of the person if any, identifying the person served and witnessing the delivery of or tender of the summons.

On this court record, there appears to be no such service effected on the $\mathsf{S}$ respondents. Accordingly, failure to effect service within the time as directed or stipulated by law and absence of any application to seek leave to file out of time are some of the irregularities that this court cannot possibly ignore or sanction. (Refer: Grace Nakiyemba Nakate vs Ssemugenyi Godfrey & 4 others HCCS 397 of 2016). 10

It therefore also goes without saying that whereas communication via WhatsApp is a modern and recognized form of communication, it was not intended to do away with **order 49 rule 2 of the CPR** or replace the procedural requirements for service as guided under **order 5 of the CPR.**

I therefore strike out the appeal with costs, as it is incompetently before this 15 court.

Alexandra Nkonge Rugadya

20 Judge

18<sup>th</sup> April, 2023

Delivered by email<br>on $15/4/2023$