CIVIL PROCEDURE NOTES

TOPIC 1;
Introduction to Civil Procedure
 Civil procedure deals with the process through which civil legal disputes are
resolved, either through court system or alternative dispute resolution
mechanisms; See the structure of courts in Uganda and their respective
jurisdiction.

 Civil litigation connotes a process through which civil disputes are resolved
through the court system; right from the pre-trial through the trial, post
judgement and appellate or remedial systems.[See the scope and implications
of litigation in especially an adversarial system.See also the modern approach
towards civil litigation.

 On the other hand; Alternative Dispute Resolution (ADR): is a process

designed to help the parties amicably resolve their disputes without need for
formal legal proceedings. [however note the court based arbitration and
mediation]

 See the various modes of ADR; Negotiations: Mediation: the facilitation of

negotiation among parties by a neutral party. See the Judicature (Commercial
Court Division) Mediation Rules 2007; See essence of mediation in the High
court Commercial Division] Read the case of Betuco (U) Ltd & Anor. V
Barclays Bank of Uganda Ltd HCT-00-CC-MA-0507-2009

 Arbitration: the process in which a 3rd party who is neutral after hearing the
evidence and arguments of the parties in a relatively informal hearing makes a
binding decision resolving a dispute. See; the Arbitration and Reconciliation
Act Cap 4. EADB V Ziwa Hotcultural Exporters Ltd [1997-2000] UCLR 247;
Fulgencious Munghereza V Price Water House Coopers[1997-2000] UCLR 45;
See the attitude of the courts towards parties compliance with arbitration
clauses.

 Court based arbitration; during conferencing or in the course of trial leading to

consent judgements or compromises; Betuco (U) Ltd & Anor. V Barclays Bank
of Uganda Ltd HCT-00-CC-MA-0243-2009; Peter Muliira V Mitchell Cotts
[1997-2000] UCLR 118 It also entails ways of resolving the disputes between
the parties; the steps to be taken before the case come for trial [mediation by
CADRE]. See Scheduling conference;
 Mediation at conferencing and significance of a scheduling conference; See;
Tororo Cement Co. Ltd V Frokina International Ltd SCCA NO.2 OF 2001.
Tsekooko JSC holding that O. 11 CPR provides for the holding of a scheduling
conference in civil cases and that the requirement is mandatory. That the
principal objective being to enable court to assist parties to dispose of cases

Draft Notes on Civil Procedure 1 Muk 1 2010-2011 by Joseph Kyazze Esq.

 expeditiously by sorting out points of agreement and disagreement or
assessing the possibility of mediation, arbitration and other forms of settling
the suit. See; Stanbic Bank Ltd V Uganda Cros Ltd SCCA 4/2004;
 Consider the benefits of ADR as compared to litigation;
 It saves time:, notion of ‘Justice delayed is justice denied’. [See Article
126 of the constitution].
 Reduction in backlog of cases in formal courts.
 Effective participation by the parties and privacy
 In ADR there is a win-win situation, where all parties are bound to lose
or gain something.

Litigation and the Modern Trend;

 ADR flourishes more in developed countries than in Less Developed
Countries. The courts are also reluctant to allow parties to litigate where ADR/
Arbitration was provided for as a means of settling disputes; See Fulgennsius
Mungereza V Price Water House Coopers Africa Central SCCA NO.18/2002.
See also East African Development V Ziwa Hortcultural Exporters Ltd
[1997-2000] UCLR 247

Litigation:
 The definition of law involves substantive and procedural law.
 Substantive law defines the rights and liabilities of persons.
 Procedural law sets out the rules, which regulate the way in which the
rights and liabilities of parties are enforced (defended) in proceedings in
court of law.

Importance of the law of Civil Procedure;

 The law of procedure regulates the steps, which must be taken by the
party in litigation.
 From the time the party commences the legal proceedings up to the time
of enforcement of the judgment, the law entails determination of a
document a party must use to set the law in motion i.e. filing documents
by the party.
 It entails the ways in which the party must bring the proceedings to his
adversary [exchange of pleadings].
 However, failure to hold a scheduling conference is not fatal and a
ground of appeal unless it causes any prejudice to the aggrieved party.
 The conduct of the trial, enforcement of judgment costs of the case.
Corrective remedies of the court are available to the parties. It also
includes revisiting the decision of the court.
 Civil procedure deals with the procedure as laid out in the Courts of
judicature and Magistrates courts and other fors established by law;
The Law Applicable, Procedure & Practice :
 Applicability of the CPR; Procedure in the High Court, Chief Magistrate
and Magistrate Grade 1 Court is regulated by the Civil Procedure Rules ;

Draft Notes on Civil Procedure 1 Muk 2 2010-2011 by Joseph Kyazze Esq.

 Read s. 219 of the MCA; [ Principal legislation being the CPA and the
MCA all subject to the constitution and other relevant legislation and
rules highlighted on the reading list] Read Nakabago Co-operative Society
V Livingstone Kyanga [1992] III KALR 137; For the principle hat the CPRs
( specifically O.36 on summary procedure) are inapplicable to a court
presided over by a Magistrate Grade 11.

 For Grade 11 Magistrates, applicable rules are in the third schedule to the
MCA; Read Yeseri Waibi v Edisa Lisi Byandala 1972 HCB 28I; For the
principle that the Civil Procedure Rules are not applicable to courts
presided over by a Grade 11 Magistrate; the applicable rules are in the 3rd
schedule to the MCA. Read s. 219 of the MCA

 The CPA is not exhaustive on procedure and other special procedure

expressly provided for in specific statutes may be resorted to; Read; Re
Kenshavlal Punja Shah (1955) 22 EACA 381; for the principle that it is a
rule of construction that every procedure is to be understood as
permissible till it is shown to be prohibited by law.

 Procedure in the CPA and CPRs may apply if a remedy is created but no
procedure is provided for in any other specific legislation; Oil seeds 9U)
Ltd vs The AG CACA No. 127 / 2007 for the principle that where no
specific procedure is provided for under a particular legislation, the
appropriate procedure in the CPA may be adopted. Read Charles Harry
Twagira V AG[2008] HCB 28 for actions under Article 50 for enforcement
of human rights being commenced by either plaint or for declarations by
way of Notice of Motion

 Where no procedure is available, the High court may adopt procedure

that is appropriate or justifiable in the circumstances. Read S. 39
Judicature Act Cap 13; Read LDC V Edward Mugalu & Anor. [1990-91]
KALR 103. on the procedure of revision, not provided for under any law
and can even be by way of a formal letter. Read; Kakooza Mutale V AG
and Anor.[ 2001-2005] HCB 110 on applicability of s.39 Judicature Act.

 In case no remedy is provided for in the Act or the rules, recourse is had
to s.98 of the CPA which permits court to grant any remedy or make an
order as the interests of justioce may dictate; See restrictive application
of S.98 CPA Read; Aya Investiments V M/s Kibeedi & Co. Advocates
[2008] HCB 130
 Adonia V Mutekanga (1970) EA 429,432; G.W Katakwandi V Biraro
(1977) HCB; Rawal V Mombasa Hardware Ltd [1968] EA 392;
Standard Chartered Bank V Clouds 10 Ltd [1988-90] HCB 84; for
the principle that the inherent jurisdiction enshrined in s.98 of the
CPA can not be invoked where an express remedy is provided for

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 under any law.

 The rules apply subject to the constitution; Article 126 (2) (e) is normally
invoked to cater for administration of justice without undue regard to
technicalities;
 See Limitations; Athanassus Kivumbi Lule v Hon. Emmanuel Pinto CA
const. Petition No. 5 /1995 – article 126 (2) (e) was not intended to
wipe out rules of procedure of the courts but the rules should be
applied as hand maids of justice depending on cicrustance

 Note; Article 126 (2) is not of general application and will only be invoked
in fitting circumstances. Read; Tororo Cement Co. Ltd V Frokina
International Ltd SCCA NO.2 OF 2001; Nelson Sande Ndugo V EC HCT EP
0004/2006 Mohammad Buwule Kasasa V Sirasi Buyonga Bwogi CACA
No. 42 2009

TOPIC No. 2;

Forum For Filing Proceedings:

Read;; Article 139 (1) Constitution, S.14 Judicature Act

Read; also the Arbitration & Conciliation Act Cap 4
Read; The Employment Act 2006
Read;Jurisdiction of Registrars of the High court; O.50 CPRs and Judicial
Powers of Registrars (Practice Direction No. No.1 of 2002
Read; Kuloba; Judicial Hints on Civil Procedure
Read; The Magistrate’s Courts (Magisterial Areas) Instrument No.45/2007
The High Court (Circuits) Instrument No.20/2004

 Jurisdiction in simple language means the power of court or a judge to

hear and entertain an action , matter or other proceedings Alamanzani
Zziwa v Angello Kintu HC MIS app No 37/1993; See also; Mukasa v
Muwanga HC Misc App No. 31 / 1994.

 Jurisdiction of a court is not a matter for implication but must be

prescribed by law; Read Ahamed Kawooya Kaugu V Bangu Aggrey Fred
and Anor [2007] HCB 35 SC

 Jurisdiction constitutes both geographical and pecuniary jurisdiction;

Abbey Semakula V Eldad Rubarenzya [1996] II KALR 22 Mangalita
Namirembe V Kalamatu Tebukola [1995] IIIKALR 84;

 In pleadings, it is a requirement that the parties plead facts which bestow

juridiction upon the court; Alexander Mutongole V NYTIL CA No. 94 of
1968(1971) HCB 114; See also Bisuti V Busoga District Admin HCCS No.

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 83/1969

 Courts are established directly or indirectly by the constitution and their

respective jurisdictions are accordingly derived from the constitution or
other law made under the authority of the constitution. Baku Raphael
Obudra and Obiga Kania v AG SC court. App No. 1/2005 Mulenga JSC

 Where a court entertains a matter falling outside its constitutional or

statutory mandate, it will be assuming jursidction not given to either by
Parliament or any other law; A court can not and should not exercise
jurisdiction not given to it by law; Athanassus Kivumbi Lule v Hon.
Emmanuel Pinto CA const. Petition No. 5 /1995

 No court can confer jurisdiction upon itself and if it does , such

proceedings are a nullity, and it is well established principle of the law
that judgment of a court which acts without jurisdiction is a nullity. Desai
v Wansaw (1967) EA 351

 However, the courts are obliged and mandated to exercise their

respective jurisdiction in accordance with the law: Makerere University V
Rajab Kagoro [2008] HCB 103

General rule on Jurisidction in Civil Matters:

S.5 CPA. Any court shall subject to the provisions of this Act have jurisdiction to
try all suits of civil nature excepting suits of which its cognisance is expressly
or impliedly not barred by the law. Read and Compare S. 208 of the MCA.

Jurisdiction of the Magistrates’ Courts:

See the distinction between pecuniary and geographical jurisdictionof
Magistrate’s courts; See also considerations in determining the court that has
jurisdiction.
 MCA as amended limits the pecuniary jurisdiction of Magistrates courts
to matters whose pecuniary value does not exceed 50m/= for a Chief
Magistrate, 20/= for Grade 1 Magistrate and 500,000/= for Grade II
Magistrate. See s. 207 (1) a-c

 Chief Magistrate to have unlimited jurisdiction in disputes relating to

conversion, damage to property and trespass see s. 207 (1) (a).

 In all causes or matters governed only by civil customary law, the

jurisdiction of the Chief Magistrate and Magistrate Grade 1 shall be
unlimited Read s.207 (2) MCA as amended.

 See Hierachy in terms of filing suits in respective magistrates courts;

read s.208 MCA. Read also The Transfer of Jurisdiction to Magistrates

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 Courts Circular No. 1/2007

 Geographical jurisdiction is dependant on the subject matter of the suit;

Read; sections 11 to 15 of the CPA and S. 212 to 215 of the MCA; Read;
The Magistrate’s Courts (Magisterial Areas) Instrument No.45/2007

 See also jurisdiction of LC Courts under the LC Courts Act 2006. Read;
Joweria Nalukwago v Admin. General HCC No 102 /1995 / 1997 IU KALR
139 for the principle that Local council courts exercising jurisdiction in
land disputes relating customary tenure are not restricted by the
monetary value of the subject matter. Read; S.10 and the 3rd schedule
Local Council Courts Act No. 13 /2006 on civil Jurisdiction of LC courts.

Jurisdiction of the High Court

 Jurisdiction derived from Article 139(1) of the constitution. High court
vested with unlimited original jurisdiction in all civil and criminal matters.
Read; Larco Concrete Products Ltd vs Transair Ltd (1988 – 90) HCB 80;
The Highcourt in its civil and criminal jurisdiction is vested with power
over all persons and over all causes and matters in Uganda criminal or
civil and inspite of the contract being made in England, that alone could
not oust the jurisdication of the high court unless it has been stipulated
in in the agreement to that effect in no uncertain terms .

 The constitution read together with the Judicature Act S.14 (2) grant the
High court original jurisdiction in all maters. In the absence of a provision
in the contrary excluding jurisdiction of the H.C, it has jurisdiction;
Eastern and Southen African Trade and Anor vs Hassan Basajjabalaba
and Anor HCT -00-CC-CS – 0512 – 2006;

 The High Court cant dismiss a matter before it merely because other
lower Magistrates courts may have jurisdiction to entaertain it; See
consequences; Read P. Munyagwa Vs Lucy Kamujanduzi [1972] EA, 332
(U).[1972] HCB 117. Counsel for the defendant objected that the suit was
bad on ground of jurisdiction. Held:That the High Court is a court of
unlimited jurisdiction, which could entertain any action and this, does not
render the suit defective. That the plaintiff would be awarded costs at the
rate of the lower court.

 NB; as general rule: Actions must be instituted in lower courts otherwise

a party who files the suit in a higher court, where a lower court has
jurisdiction, the party would stand the risk of a low award of costs.
Francis s/o Mwijage V Boniface s/o Kabalemeza Civil Appeal 84-68(HCD)
341; Read and compare s. 208 MCA

 The Juridiction of the High Court derives from the constirution and cant

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 be ousted by implication in a statute which creates an alternative forum;
Read M/S Robo Enterprises (U) Ltd V Commissioner General of Uganda
Revenue Authority CACA No. 55 of 2003;. Contention that the High court
had no original jurisdiction over tax matters[ Power vested in the Tax
Appeals Tribunal]. Held that the jurisdiction of the High court is basically
found in Article 139 of the constitution and s.16 [now 14] of the
Judicature Act, which confers unlimited jurisdiction on the High court in
all matters. That such Jurisdiction is only subject to the constitution
meaning that the jurisdiction of the High court may only be changed by
amending the constitution. Read; the Judgement of Kanyeihamba JSC;
The Commissioner General URA V Meera Investments Limited SCCA No.
22 of 2007 on the implications of Article 139(1) of the constitution

 Provisions of the Arbitration and conciliation Act requiring matters

subject to arbitration clauses do not oust the jurisdiction of the High
Court; Read Pheobe Mugabi V Print Pak (U) Ltd (1994) 1 KALR 29;
Kayondo V The Cooperative Bank Ltd CA No. 19/91

 However, the High Court may refer the matter to arbitration where there is
a valid, operative and enforceable arbitration clause if a proper
application is made by a party thereto; Read; EADB V Ziwa Hotcultural
Exporters Ltd [1997-2000] UCLR 247; AG & UCB V Westmont [1997-2000]
UCLR 191; Fulgencious Munghereza V Price Water House
Coopers[1997-2000] UCLR 45

 NB; The High Court has inherent power to make such orders as may be
necessary for the ends of justice or to prevent abuse of the process of
the court; Aya Investiments (U) Ltd V M/S Kibeedi & Co. Advocates [2008]
HCB 130

 The Registrars ( including Deputy Registrars/ assistant registrars of the

High court also have juridiction over specified matters like specififed
interlocutory applications; Read; Gomil (U) ltd v Latax (u) Ltd 1990 – 91
KALR 194 on whether a High court registrar or a district registrar can
entertain interlocutory application such as application to grant an interim
injunction.
 Read; Jurisdiction of Registrars of the High court; O.50 CPRs
 Judicial Powers of Registrars (Practice Direction No. No.1 of
2002;
 Read; The High Court (Circuits) Instrument No.20/2004
 Read; Dairy Corporation V Opio [2001-2005] HCB 113 for the other
functions of registrars

Jurisdiction of the High Court in matters with an international

element;

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  The question that arises is whether it has jurisdiction in matters having
an international element. Read; Sebagala & Sons Electric Centre Ltd V
Kenya National Shipping Lines Ltd HCCS No. 431 of 1999 [1997-2001]
UCLR 388.The issue was whether court had jurisdiction to entertain a
matter involving the defendant which operated business outside Uganda.
Held; that following the provisions of s.15 (3) of the Civil Procedure Act,
the question of whether or not a court has jurisdiction in a matter arising
from the contract is dependent on where the cause of action arose in
terms of where the contract was made, or where it was performed and
completed, and where payment was effected. In this case, completion of
the contract was to be effected in Kampala hence the court had
jurisdiction. That secondly, the defendant having filed a defence
submitted to the jurisdiction of the court and could not dispute its
jurisdiction at the hearing. Read; Larco Concrete Products Ltd vs Transair
Ltd (1988 – 90) HCB 80; Eastern and Southen African Trade and Anor vs
Hassan Basajjabalaba and Anor HCT -00-CC-CS – 0512 – 2006;

 If a government or one of its departments goes into the market places of

the world and engages in straight forward commercial transactions, then
it is within the territorial jurisdiction of the courts of the foreigh sovereign
and cant claim immunity in respect of such transactions. Eddie
Rodrigues V The British High Commission SCCA NO.8/87; Read
Ndibarekera V The United States of America HCCS NO.786/97; Somali
Democratic Republic v Treon SCCA No.6 of 1998; Manzur Alam V The
Embassy of Saudi Arabia HCCS NO.402 OF 2002
Objections to Jurisdiction and Procedure
Read; O. 9.r 3(1) (f) CPRs
 Defendant wishing to object/ dispute to the Jurisdiction of court
may give his/her intention to defend the proceedings or apply
within the time limited for service of a defence to court; See the
conditions in Mark Graves V Balton (U) HCMA No.158 of 2008.

 Note; Where a defendant doenot file a defence, it is deemed that

he/she excluded him/herself from court and has no locus standi
before the court; and can not sustain any application in the
proceedings. AG & UCB V Westmont Land (Asia) Bhd & Others
[1997-2001] UCLR 191

 However, a defendant may object the jurisdiction of the court even

where no defence is filed if he has made an application under O.9
R.3 as long as the application is made within the same time as that
of filing a defence. The filing of a defence is not a pre-condition to
the filing of the application and is thus optional; Mark Graves V
Balton (U) HCMA No.158 of 2008.

Draft Notes on Civil Procedure 1 Muk 8 2010-2011 by Joseph Kyazze Esq.

  That a defendant having filed a defence submitted to the
jurisdiction of the court and could not dispute its jurisdiction at the
hearing. Ssebagala & Sons Electric Centre Ltd V Kenya National
Shipping Lines Ltd HCCS No. 431 of 1999 [1997-2001] UCLR 388.[
Note the practice]

 The filing of a defence where the defendant has filed an

application under O.9 r. 3 is not treated as a submission to the
jurisdiction unless court orders so or dismisses the application.
Mark Graves V Balton (U) HCMA No.158 of 2008.

 Where a defendant who has filed a defence doesnot make the

application, such a defence will be treated as a submission by the
defendant to the jurisdiction of the court in the proceedings unless
the defence is withdrawn with leave of court under O.25(1)(3)
CPRs Mark Graves V Balton (U) HCMA No.158 of 2008.

Effect of proceeding before a court with no jurisdiction;

 It is settled law that a judgment of a court without jurisdiction is a

nullity and as such it is something which a person effected by it was
entitled to have et aside ex debits justitiae; Read; Mubiru & vs Kayiwa
(1979) HCB 212. Also read; Byanyima Winnie v Ngoma Ngime Civil Rev
No. 9/2001

 That anything done by court without jurisdiction is a nullity. Read;

Makula International V Cardinal Nsubuga [1982] HCB;

 Jurisdiction is a creature of the constitution and statute and where a

matter is filed in a court that has no jurisdiction, it must be struck out.
Read; Sgt Kalemera Frank vs Uganda SCCA No. 18 /94; Athanasius
Kivumbi V Hon Emmanuel Pinto Constitutional Petition No. 5 of 1997

 Note the distinction between a wrong court and a court that has no
jurisdiction;

Transfer and Withdrawal of Cases:

S. 18 CPA provides for transfer and withdrawal of cases. Read also s. 217
and 218 of the MCA; Power execrcisable by the High Court;
 Considerations include; balance of convenience of the parties, the
expense involved, the interest of justice, the possibility of undue
hardship. See Matayo K. Kaboha V Abibu Bin Abdalla (1942) 6 ULR 121
(U);
 Cost or expense and witness are relevant considerations; In David
Kambugu V Zikalenga Misc. Appl 36/1995[1995] KALR 48; Okello J held

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 that the Plaintiff has a right to choose his court. The expense which the
plaintiff was likely to incur in transporting and maintaining numerous
public officers from Kampala to Kabale to attend as witnesses was
bound to be prohibitive as to deny him justice. Therefore if the
application was not allowed, it would amount to shutting the plaintiff
behind the doors of justice.

 A suit that is instituted in a court that lacks jurisdiction cannot be

transferred and will be dismissed; Kagenyi V Musiramo [1968] EA 43(U).
The order for transfer of a suit cannot be made unless the suit has been
in the first instance instituted in a court, which has jurisdiction. Read; Sgt
Kalemera Franck vs Uganda SCCA No. 18 /94

The Procedure of commencing suits:

 Read; S. 19 CPA O.4 r 1, O.36, O.37, O. 52 CPRs; etc:

 Definition of suit: Suit is defined as all proceedings in whatever manner

commenced. See s. 2 of the CPA. Mansion House ltd Vs Wilkinson (1954)
22 EACA 98 Held: A suit is any civil proceedings commenced in any

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 manner prescribed by rules made by the Rules Committee to regulate the
procedures of courts under the civil procedure Act.

 Nakitto & Brothers Ltd V Katumba [1983] HCB 70; that the suit is defined
as all proceedings commenced in any manner prescribed. That this
included a notice of motion. Read the case of Meera Investiments
Limited V Jeshang Popat Shah CACA No. 56 of 2003

 S.3 CPA; In all cases when there is no special procedure resort should be
had to the Civil Procedure Rules and its application can only be excepted
by procedure contained in any other Act. [See election petitions law; See
notes on applicable law]

 General rule on procedure of instituting suits is laid down in S.19 CPA;

Every suit shall be instituted in such a manner prescribed by the in the
rules [CPR; rules apply as far as practicable to all matters arising under
the CPA; Meera Investments Ltd V Jesgang Popat Shah CACA No. 56 of
2003

Relevant steps / Considerations before commencement of

suits

 Concurrence of Civil and Criminal Proceedings; In some instances, an

aggrieved party may be in a dilemma as to whether to take civil or
criminal proceedings against the intended defendant.[examples include
negligent driving and bounced cheques]

 The question is whether it is possible to pursue criminal and civil

proceedings concurrently arising from the same claim; Read Esso
Standard (U) Ltd V Mike Nabudere HC No. 594/1990. The defendant
applied to stay civil proceedings on ground that there were pending
criminal proceedings derived from the same facts; Karokra J; Held that
the plaintiff’s demand for damages in the civil suit did not in any way
prejudice the criminal proceedings in the criminal court and there is no
justification for staying the civil suit. Additionally, the plaintiff was only to
prove his case on the balance of probabilities and the resultant
judgement had no evidential value in the prosecution of the defendant,
since there, proof was required beyond reasonable doubt. In any case,
police investigations take too long to be completed and such delay
should not constitute a bar against the plaintiff’s rights of action. The
common law rule that barred commencement of a civil suit during the
pendency of criminal proceedings is no longer applicable to Uganda.

 The other relevant consideration relates to the relevancy and effect of

Criminal proceedings /judgement in Civil Suits; Read; Erinesti Ochieng V

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 Obedo Nyambito Civil Appeal No. 92 of 1973; it is trite and rudimentary
that proceedings in a criminal case could not be used to prove a cause of
action in a civil suit – although the record of the record if the criminal
court case could be used for certain purposes such as contradicting a
witness by facing him with what he stated in the trial of a criminal case.

Notice of intention to sue and Statutory Notice

Read; The Civil Procedure & Limitation (Miscellaneous Provisions) Act Cap 72
Read; R.39 A dvocates Remuneration and Taxation of Costs rules

Notice of intention
 There is no mandatory legal requirement to serve an ordinary notice of
intention to sue. S.19 CPA, all suits to be commenced in the manner
provided in the rules; CPR has no provision for Notice of intention to sue.

 However, where no notice of intention is served, taking into

circumstances of the failure, the plaintiff may be penalised in costs. In
Wambugu V Public Service Commission [1972] EA 29, Chanan Singh J
held that a notice of intention should always be given in all cases unless
the plaintiff’s interests are likely to be harmed by the notice if given, the
rationale being that failure to serve a notice could prejudice the position
of the defendant in as much as he would wish to settle or admit liability
and avoid court action. Costs would therefore not be awarded to the
plaintiff. Read; R.39 A dvocates Remuneration and Taxation of Costs
rules and the conditions therein.

 Note; The ordinary Notice of intention to sue is served on any intended

defendant other than those specified in the The Civil Procedure &
Limitation (Miscellaneous Provisions) Act Cap 72

 Note; In suits founded on dishonoured negotiable instruments/ cheques,

the failure to take relevant steps to serve a notice of dishonour of a bill of
exhange may discharge the drawer from liability; Such failure disentitles
the payee from the right of recourse against the drawer on the
bill/cheque; Obed Tashobya V DFCU Limited HCT-00-CC-CS-742-2004;
Read S.50(2) Bill of Exchange Act cap 68; See also Simba Motors Limited
V John Sentongo & Anor HCT-00-CC-CS-0733-2000

 Note; An ordinary Notice of intention to sue is by way of a formal letter.

Statutory Notice
 On the other hand, it is a mandatory and statutory requirement to serve a
statutory Notice to the relevant parties under the Civil Procedure and
Limitation (Miscellaneous Provisions Act.

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  The parties include; Government, Scheduled Corporations and Local
Governments: Read; S. 3 and S. 7 of the Local Governments Act.

 [ NB; scheduled corporations may be included in the Act by a subsequent

Statutory Instrument. Read; Sarah Kafrika Mbonabukya V NPART
Tribunal Case No. 24 of 1999.
 Also note that; not all Statutory corporations/corporation soles are
scheduled corporations.[See Administrator General]
 Note the distinction between a company, a statutory corporation
and a scheduled corporation.

 The law on statutory notice is S.(1) and S.2(1) (a) of the Civil Procedure
and Limitation (Miscellaneous Provisions) Act Cap 72 [note the
amendment to the Act, reducing the requisite days formerly from 60 to
45 currently] Katwe Butego Division LGC V Masaka Municipal Council
MHCCS No. 0011/2005;

 Legal Position is that no suit can be instituted against the government

until the expiry of 60[now 45] days next after the written notice has been
delivered or left at the office of the A-G, stating the name, description and
place of residence of the intending plaintiff, the name of the court in
which the suit is to be filed and facts constituting the cause of action.
Rwakasoro Vs Attorney General HCCS No. 711 of 1977.The plaintiff filed
a suit against the A-G and sent a statutory notice to the A-G but the
defendant’s counsel raised a preliminary point of law that the notice did
not disclose a cause of action.

 Nature of statutory Notice;unless sufficient facts are disclosed in the

statutory notice Government may not know what the claim is about. In
the instant case the information given in the notice was meaningless
because nothing was shown about the deceased and the accident to
make the government vicariously liable for damages. It was good
practice for the advocate to annex a copy of the intended plaint to the
statutory notice so that all relevant and necessary facts are known to the
person to who the notice is given. No valid notice was given to the A-G
and time has not lapsed. Rwakasoro Vs Attorney General HCCS No. 711
of 1977.

 Form of a statutory Notice; A statutory notice should ordinary constitute

facts giving rise to the cause of action and should be consistent with the
pleadings . Dr. J.W Rwanyarare & ors v AG HMA No 85/93

 The object a statutory notice is to give government the opportunity of

settling the claim or enable government to investigate the alleged cause
of complaint and to make amends if thought fit before it is impleaded in

Draft Notes on Civil Procedure 1 Muk 13 2010-2011 by Joseph Kyazze Esq.

 the suit. The object is satisfied if the notice informs the defendant
generally of the nature of the suit intended to be file and the relief sought
to be claimed. Dr. J.W Rwanyarare & ors v AG HMA No 85/93

 However, the contents of a statutory notice are directed or limited by the

peculiar circumstances of each case; See Katwe Butego Division LGC V
Masaka Municipal Council MHCCS No. 0011/2005 See also S.43 of the
Interpretation Act on substance of statutory forms.

 Suits Against Scheduled Corporations and Local Authorities:Pamba Vs

Coffee Marketing Board HCCS No. 186 of 1975 The Plaintiff sued the
defendant as scheduled corporation for damages for personal injuries.
The defendant denied liability contending that the suit was incompetent,
as no statutory notice had been served as required under S.1 of the CP
and Limitation Miscellaneous Provisions Act. Held: That by virtue of S.1
of that Act no suit can be instituted against a scheduled corporation
unless a written notice has been delivered to or left at the office of the
corporation and since no notice had been left or served the procedure
had not been followed and no suit against the defendant corporation.

 Service of a statutory Notice; The CP and Limitation Miscellaneous

Provisions Act provides for the recipients of the notice; Chief
Administrative Officer [CAO] or Town clerk, AG; See Katwe Butego
Division LGC V Masaka Municipal Council MHCCS No. 0011/2005; The
statutory notice was served upon the chairman of the defendant who
allegedly transmitted it to the Town Clerk and the question was whether
serve was duly effected. Service deemed to be effective in view of the
available evidence that the notice was received by the Town clerk for
action.

 Whether notice must be delivered to specified officer; Katwe Butego

Division LGC V Masaka Municipal Council MHCCS No. 0011/2005; Held;
that the provisions of S.2 of the Act in as far as it relates to delivering or
leaving the notice at the specified office of the specified officer is only
directory and not mandatory.[see Article 126(2)(e)

 Proof of Service of a Statutory Notice; The burden of proving that the

notice was duly served is on the plaintiff; Kampala City Council V
Nuluyati [1974] EA 400

 Effect of failure to plead that Statutory Notice was served; it is good

practice to always indicate in the pleadings that statutory notice was
served and a copy of the served notice must be attached; Kateme Ltd V
Management Training & Advisory Center[1998] 11KALR 18; Kibuuka
Musoke Ag J. held that failure to plead that statutory notice was served
and to annex it on the plaint was breach of a mandatory requirement.

Draft Notes on Civil Procedure 1 Muk 14 2010-2011 by Joseph Kyazze Esq.

 However, it was ancillary to the requirement to serve the notice, which
was in this case served. The omission to plead service was therefore
curable by way of amendment and the application for leave to amend
would be granted.

 Effect of failure to file a statutory notice; See M/S Cheap Super Quality &
Fancy Stores Ltd & Another V UCB HCCS No. 9 /1992 [1994] IV KALR 18
A suit filed without compliance with the provisions of the Act is bad in
law and a nullity. See Gulu Municipal Council V Nyeko Gabriel and othrs
HCCS No. 77/1996 [1997] IKALR 9; That the provision requiring a suit
against a local authority to be filed 60[now 45] days after the service of
the statutory notice is mandatory and non compliance is fatal to the
proceedings.Read also Francis Waniala V Bugisu District Administration
[1982] HCB 128 NIC V Kafeero[1974] EA 477 at 480

 Whether service of a statutory notice may be directory in special

circumstances. In special circumstances, the word ‘shall’ in the Act may
be construed as directory and not mandatory; Sarah Kafrika Mbonabukya
V NPART Tribunal Case No. 24 of 1999. A suit filed before the NPART
Tribunal against NPART, which was a scheduled corporation. Objection
raised that the suit was premature and unmaintainable because the
notice of 60 days prescribed under the CP & Limitation [Miscellaneous
Provisions Act was not given to the defendant.[ An ordinary notice of
intention to sue had been served]. Held; that the provision requiring
service of a statutory notice must be construed in relation to the NPART
Statute and its objects. The Act was a special enactment, which in case
of conflict must be given effect over the other enactments, which existed
before it in order that its special scheme may be attained. That the court
would thus construe the word ‘shall’ as directory in order to achieve the
objects of the NPART Act. That insufficiency of the notice was a
procedural irregularity, which could only be said to be fatal if it would
cause substantial prejudice; [Distinguish this case from Gulu Municipal
Council V Nyeko Gabriel and others HCCS No. 77/1996 [1997] IKALR 9;

 Exceptions to the requirement of a Statutory Notice; Statutory Notice may

be waived in cases involving applications for enforcement of
fundamental rights and freedoms guaranteed by the constitution; See
TEAN V A-G /NEMA Misc. Application No. 29 of 2001, BATU V TEAN HCC
Application No. 27/2003; action founded on provisions of the
constitution in relation to protect and prevent violation of human rights
not to be constrained by statutory procedural requirements as such
provisions would hinder administration of substantive justice. Read; Dr.
Rwanyarare & Othrs V AG HCMA No.85/199;

 Circumstances where a statutory notice is waived on ground of

unfairness and public interest; See Kanyeihamba JSC in; The

Draft Notes on Civil Procedure 1 Muk 15 2010-2011 by Joseph Kyazze Esq.

 Commissioner General URA V Meera Investments Limited SCCA No. 22
of 2007

 Objection to a suit based on want of service of a statutory Notice must be

raised as a preliminary objection [ except where it may require formal
proof]; Read; Apollonia Nakirya V Ssekataba and Anor CACA No. 38
/2003 for the proposition that the question of statutory notice being
wanting should be raised as a preliminary point of objection for
determination and should not be raised after trial. Katwe Butego Division
LGC V Masaka Municipal Council MHCCS No. 0011/2005;

Institution Of Suits:

 Suits are filed in the relevant court registry by lodging the relevant court
papers[ pleadings] within the stipulated time[ see limitation of actions] Read
W.H.R Wanyama V KCC & Anor. [2008] HCB 111 for the principle that an offer
to negotiate terms of a settlement between the parties to an action has no
effect whatsoever on when to serve a statutory notice or file an action. It is
incumbent on those who need to file documents to do so in time.

 Note; when and where to file suits; court documents are required to be filed in
the registry of the appropriate court[ see divisions of the High Court]
Athanasius Kivumbi V Hon Emmanuel Pinto Constitutional Petition No. 5 of
1997

Payment of court fees:

 Court fees must be paid in accordance with the Court Fees, Fines and
deposits Rules. [See copy of the fees structure] Read Order 9 r.16 and
O.7 r.11(c) on implications of non payment of fees and payment of
insufficient fees.

 Court fees depend on the value of the subject matter of the suit and
proceedings are deemed to be filed when the fee is paid; Musango Vs
Musango(1979) HCB 226 Held: That the proceedings were deemed to be
filed when the appropriate fees is paid in court such fees being
dependent on the valued of the suit.

 General rule is that as a matter of the law, documents can not validly be
filed in the civil matter until fees have either been paid or provided for by
a general deposit from the filing advocate which authority has been given
to decide court fees. Read; UNTA Exports Ltd Vs Commissioner of

Draft Notes on Civil Procedure 1 Muk 16 2010-2011 by Joseph Kyazze Esq.

 Custom [1970] EA 43 (U Read Noah Bukenya V M/s Global Credit
Management Company HCMA No. 254/09

 The document is deemed to be legally filed on the date of payment of the

fees and if time for UNTA Exports Ltd Vs Commissioner of Custom
[1970] EA 43 (U): It was shown that the consequential action was filed on
14th September but the court fees file and the fees receipt showed the
date of 16th September. The defendant contended that the action was
time barred. Held: That as a matter of the law, documents can not validly
be filed in the civil matter until fees have either been paid or provided for
by a general deposit from the filing advocate which authority has been
given to decide court fees. The main entry in the column of the register or
not by a clerk on the back of the court file, can not avoid omission to pay
or provide the necessary fees at the time of the alleged filing. The plaint
was filed out of time, having not been properly filed until fees paid on 16th,
September 1968. Read Noah Bukenya V M/s Global Credit Management
Company HCMA No. 254/09 ; Schwertza-v Cunnigham (1954)22 EACA
252; Onopato Della Sania-v Petra (1970) HCB 2

 Non payment of court fees resulting from a mistake by the court registry[
both WSD and Counterclaim attract separate fees; See also; Christopher
Katuramu Vs Mariya:(1991-92) HCB 161; the applicant challenged a
ruling entered for the respondent by contending that no counter claim
existed at the time of the ruling as no filing fees had been paid. [Mistake
of the court official] Held: That there was no action filed unless fees had
been paid. The records of the court file only indicate that fees paid by the
WSD, which embodied the counter claim. There was an irregularity on the
part of the registry staff compared with the fact that the format was not
followed and the respondent could not suffer due to such irregularity.

 Court fees may be paid subsequent to the lodgement of the suit provided
the party is still within time to file the document, though the document
will be deemed to have been filed on the date of payment not lodgement[
Bank Arabe Espanol V Bank of Uganda SCCA No.48 of 1998: A court may
allow any payment of fees later on as long as the time within which
payment must be made has not lapsed. In that case, the fees were paid
shortly after filing the notice of appeal, but within the 14 days limitation.
Court held the notice of appeal as valid provided the fees were paid
within the time allowed by the rules. [See. O 33, suits by paupers].

 A plaint may only be struck out under O.7 r. 11(c) where court orders a
party who had paid insufficient fees to pay the balance but such a party
fails to comply; Byabazaire Grace Thaddeus v Mukwano Industries HC
Misc. Application 909/2000 [2002] 2 EA; for the proposition that where
insufficient fees is paid and the same is brought to the attention of court,

Draft Notes on Civil Procedure 1 Muk 17 2010-2011 by Joseph Kyazze Esq.

 court should just order the defaulting party to pay and if the order is
disobeyed then an order rejecting the plaintiff .

 Where no fees is paid, the court may in appropriate cases order the
defaulting party to pay the proper fees or may dismiss the suit; Lawrence
Muwanga v Steven Kyegwa CACA No. 12/2001. For the proposition that
the proviso to R.6 of the court fees, fines and Deposits rules confers
discretionary power to court to make orders for a defaulting party to pay
the proper fees. Such an order is made in the in the interest of justice and
must be done judiciously. The circumstances of any particular case must
be weighed Read Noah Bukenya V M/s Global Credit Management
Company HCMA No. 254/09

 Non payment of court fees may not affect the validity of a judgement or
court order; Yese Ruzambina V Kimbowa Builders & Construction Limited
(1976) HCB 278;Non payment of court fees could not affect a judgement
entered by consent and the remedy for non payment of fees was to rely
on r.6 of the Court Fees, Fines and Depsosits Rules (Cap41) to order the
defaulting party to pay the necessary fees to the court.

 Non payment of court fees may be remedied by late payment; Amrit

Goyal V Harichand Goyal & Othrs CACA No. 109/2004; That non payment
of fees is a minor technicality that which can be cured by Article 126(2)
(e) of the constitution; The omission to pay fees may be rectified by late
payment;

 See procedure of remedying the non/late payment of fees; Read;

Electoral Commission V Nambooze Betty Bakireke [2007] HCB 52 for te
principle that there is no illegality in late payment of court fees, it’s a
minor technicality curable under Article 126(2) (e)

 Non payment of court fees may be overlooked in an endeavour not to

defeat justice Betuco (U) Ltd & Anor. V Barclays Bank of Uganda Ltd
HCT-00-CC-MA-0243-2009; A complaint against non payment of court
fees is a minor procedural and technical objection which doesnot and
should not affect the adjudication of substantive justice as envisaged in
Article 126(2) (e) of the 1995 constitution of Uganda. It doesnot serve
justice for a judgement reached to be nullified merely for non payment of
the court fees. Justice would be defeated by just a mere procedural and
technical anormally which can be remedied by ordering the requisite fees
to be paid.

 What is the current legal position; Compare the three recent cases;
Lawrence Muwanga v Steven Kyegwa CACA No. 12/2001, Noah Bukenya
V M/s Global Credit Management Company HCMA No. 254/09 Betuco
(U) Ltd & Anor. V Barclays Bank of Uganda Ltd

Draft Notes on Civil Procedure 1 Muk 18 2010-2011 by Joseph Kyazze Esq.

 HCT-00-CC-MA-0243-2009

Modes of commencement of suits

Read s. 19 of the CPA; However, O.4 r.1 provides that every suit shall be
commenced by way of a plaint. [only applicable to suits requiring
considerable amount of oral evidence, suits requiring specific pleading of
particulars like negligence, fraud etc Read O. 6.3 and O.7 ;

Considerations include; the subject matter of the suit, whether a special

procedure is available under the law, the mode of evidence and the
nature of the dispute, the parties involved, the guiding principles for
particular procedure etc.

Originating Summons:
 The law; Read; Order. 37 CPR; states that the circumstances and
categories of persons who may take out originating summons.

 Originating summons is a term of art referring to a limited and special

class of summons and means a motion that originates the proceedings
in question. St Benoist Plantations Ltd V Jean Emile Adrien Felix [1954]
21 EACA 105

 Applicable to relief for vesting orders in clear cases where the purchase
is not contested; R. Hajji Vs Sulaiman Lule: A purchaser of land sought a

Draft Notes on Civil Procedure 1 Muk 19 2010-2011 by Joseph Kyazze Esq.

 vesting order to transfer land into his names and since had not yet been
completed he proceeded under originating summons, O.37 r 3. Held: That
a purchaser of immovable property may take out originating summons
for determination of questions that may arise irrespective of any claim or
questions connected with the fact of sale not being a question affecting
the existing validity of the contract.

 Originating summons should be adopted where the matters are simple

and straight forward otherwise where the suit repates to diputed facts
and complicated question of law, the plaintiff should proceed in the
ordinary way by plaint; Vincent Kawunde t/a Oscar Associates V Kato
HCOS No. 0004 of 2007; Compare Tororo Steelworks Ltd vs Betty Akikoth
HCT -00-CV-05-0001/ 2008 . Uganda Commercial Bank vs. General Parts
(U) Ltd [1993] VI KALR 116 – originating summons and the question of
whether appointment of a receiver is proper for originating summons.

 Inapplicable to complex cases and involve a considerable amount of oral

evidence; Nakabugo Vs Francis Drake Serunjoji [1981] HCB 58: Held: It is
trite law that the disputed facts give complex and involve a considerable
amount of oral evidence; originating summons is the best procedure to
take. That the procedure of originating summons was to enable simple
matters to be settled by court and take up the matter in the usual but not
to determine the matter involving serious questions.

 Suitable in issues of construction of document or statute or one of point

of law. Yesero Mugenyi Vs Registrar of the High court & Ors. [1977] HCB
80; Words other instrument in rule 5 of order 34[now 37] to be read
ejusdem generic meaning that general words must be restricted to those
mentioned. Other instrument means instruments related or similar to
deeds or wills and a practising certificate fell outside that
category.Procedure adopted in cases requiring determination of a point
of law or construction of certain questions of law and straight
interpretation of statutes.

 Inapplicable to disputed questions of fact ought to be obtained Official

Receiver V Sudhev [1970] EA 243; Originating summons is not a
procedure by which decisions on disputed questions of fact ought to be
obtained; that its ordinarily not advisable to employ an originating
summons for hostile proceedings against a trustee and the procedure is
quite unsuitable where the facts are in disputes the evidence is by way of
affidavit.

 Applicable where the statute requires a proceeding to be originated by

summons, E V E [1970] 604; that where the statute requires a proceeding
to be originated by summons, this means originating summons. A
summon may either be a summons by court to a defendant to do an act

Draft Notes on Civil Procedure 1 Muk 20 2010-2011 by Joseph Kyazze Esq.

 or it may be an application to a court for a relief.[ Compare Joseph
Bayego V Chief Registrar of Titles on the difference between summons
and may summon

 Nature of Originating Summons; Patrick Rwekibira V Muwagibu Kamya

[1972] 2 ULR 166; Saed J that O.34 R.7[Now O.37] CPR required that O.S
to be presented ex parte to a judge in chambers with an affidavit setting
forth concisely the facts upon which the rights to relief sought is
founded.

 NB: Simple and speedy procedure and its merits are that no pleadings or
witnesses are involved.Questions for decision are raised directly by the
originating summons and evidence given by the affidavit.[ a deponent
may however be cross examined on the contents of the affidavit see
Order. 19(2) CPR NB; [The application must cite the law under which the
applicant is proceeding though failure to do so or citing the wrong law
may not be fatal if the application is clear as to what remedy is being
sought and there is a law providing for the same. Kawooya V Naava
[1975] HCB.

Notice of Motion: O 52 CPR:

The law; Read; Order. 52(1) on applications by Notice of Motion supported by a
valid affidavit; Kibuuka Musoke v Tour and Travel Center Ltd HCT
-00-CC-MA-0603-2008; All application to court except as otherwise expressly
provide in the rules shall be by motion citation of wrong law if the procedure is
correct is not fatal.

 Form of notice of motion; The notice of motion has to be in the form in the
schedule; Lyakiya Vs Attorney General The Employer received a written notice,
which he returned to the plaintiff’s advocate for signature. When the suit was
called for hearing, the state attorney contended that no notice had been given.
Held: That a written notice had to be in the form of schedule to which included
space for the signature of the plaintiff or his advocate and an unsigned notice

Draft Notes on Civil Procedure 1 Muk 21 2010-2011 by Joseph Kyazze Esq.

 was defective and the action would be dismissed since the provision is
mandatory.

 But See Katwe Butego Division LGC V Masaka Municipal Council MHCCS No.
0011/2005 See also S.43 of the Interpretation Act on substance of statutory
forms.

 Signature and seal on Motion; Joy Kaingana V Dabou Boubou [1986] HCB 59;
whereas in practice, the notice of motion carries signatures of the judge [now
registrars] and the seal of court, these are not a legal requirement and omission
doesn’t render the application fatal.

 The practice of the court is to treat the Notice of Motion as the summons, thus
the Notice of motion ought to be issued by the Registrar/ deputy registrar and
should be signed and sealed as required by 0.5 r.1(5) CPRs; Read; Dairy
Corporation V Opio [2001-2005] HCB 113

 Application to be accompanied by an affidavit; Where the application is

grounded on evidence by affidavit, a copy of that affidavit intended to be used
must be served with the motion. In such cases, the affidavit becomes part of the
application and the notice of motion is incomplete without the affidavit. Joy
Kaingana V Dabou Boubou [1986] HCB 59;

 There is no need for an affidavit where the application rests on a matter of law;
Odongkara V Kamanda [1968] EA 210(U)

 Development Finance company of Uganda Ltd vs Stanbic Bank Uganda Ltd &
Anor cc Misc. application No 88/99; Affidavit accompanying notice of motion
was headed “ affidavit in reply ” held that this was a minor irregularity which
was of no consequence ( mere sly of the pen. But they don’t include where a
party fails to attach the lists mentioned in order 6 r 2 CPR . In effect, non
attachment means a party would have foregone his right to rely on the
witnesses documents or authorities not listed.

 Effect of distinct date on Motion and affidavit; Read Eng. Katwiremu V

Mushemeza Elijah [1997] II KALR 66

 Whether motion must state the grounds on which the application is based;
Mugarula Mukiibi V Colline Hotel Ltd [1984] HCB 35; That the grounds of
application have to be set out in the notice of motion because O.48 r.3 CPR is
mandatory. If the notice of motion doesn’t contain the grounds of the
application, then it is fatally defective. That the affidavit is a separate document
containing a sworn statement of facts in support of the grounds of the
application.

 However, in Notay Engineering Industries V Superior Construction & Engineering

Draft Notes on Civil Procedure 1 Muk 22 2010-2011 by Joseph Kyazze Esq.

 Ltd HCCS No. 702 of 1989, it was held that where the notice of motion
sufficiently makes reference to grounds contained in the affidavit filed with the
notice of motion, by that reference the contents of affidavit were incorporated in
the notice of motion.

 That rules are to be observed but irregularities of form may be ignored or cured
by amendment when they have occasioned no prejudice. In these matters of
form, courts are less strict [see article 126(2)(e) of the constitution. See also
Castelino V Leo Rodrigues [1972] EA 233;

 Whether the notice of motion must state the law applicable; Although the rules
do not specifically require a notice of motion to state the order and rules or
other law under which it is made, that it is usual practice and should be
followed. Salim V Boyd [1971] EA 550[K]. See Hon. MR. Justice Remmy Kasule
V Jack Sabiiti & 2 Others HCCS No. 230 of 2006

 However, the citing of the wrong law doesn’t render the application invalid, as
courts will treat it as a mere technicality. See Kawooya V Naava [supra]

 Notice of motion under wrong law; Paragio Munyangira v Andrew Mutayitwako

HCMA No. 37/1993 . Application brought under 5. 18 CPA and no rule was
cited. Held that the application was defective for failure to cite the rule under
which it was brought to court. See Odonkara vs Kamande (1968) EA 210

 Instraship (U) ltd vs G.M combined (u) Ltd (1994) VI KALR 42 application
brought under the wrong law and question of whether application should be
struck out Lugayizi J. that the question should be whether the irregularity is
serious enough to prevent the court from hearing the application and
determining it on its merits

 Whether Notice must be accompanied by summary of evidence; O.6 r.1 requires

pleadings to be accompanied by a summary of evidence; the question is
whether failure to do so in an application by notice of motion is fatal; Sule
Pharmacy Ltd V The Registered Trustees of the Khoja Shia Hana Shari Jamat
HCMISC. APPL 147/1999. It was held that notice of motion is a pleading and
should be accompanied with the named attachments. The application of O.6 r.1
in this case becomes a mere moot because of the case requires no witnesses,
documents or even authorities except O.48 r.3[now 52 r.3]. Ogoola P.J; that
there are special circumstances that are recognized with CPR in which the rule
does not and can not apply with full force and effect. Non compliance is not
fatal.

 Richard Mirirumbi; Order 6 r .2 CPR was intended to avoid a situation in which

parties ambush their opponents with matters not contemplated

 The requirement that pleading shall be accompanied by a list of authorities is

Draft Notes on Civil Procedure 1 Muk 23 2010-2011 by Joseph Kyazze Esq.

 subject to their being necessary for that pleading . What is to be relied upon is
what should be listed hence where there are no witnesses, no documents nor
authorities to rely on, there is no logic to list NIL though if they are ant not listed,
the applicant risks not being allowed to rely on them. Rajab Kyangwa v Pallis
Town council and Anor HC M. App. No 19 of 2000 Maniraguha J held

 Non compliance with then equivalent of order 6r2 rendered an application

improperly filed before court and could be dismissed Richard Mwirumbo v Jada
Ltd HCCS NO. 978/96

Chamber Summons:
 Parties are summoned in chambers where the application is heard. See O.41 on
injunctions[ compare requisites for notice of motion]

 When to proceed by chamber summons or Notice of motion; Chamber

summons is only resorted where the law expressly provides for the same;
Where a party proceeds by chamber summons rather than notice of motion, that
renders the application incurably defective; Salume Mukasa V Yozefu Bukya
[1966] EA 433[s.98 could only be resorted to if the procedure was correct and
that rules of procedure were not made in vain but to regulate the practice of the
court; Kibuuka Musoke V Tour & Travel Centre Limited HCMA No.603/2008;
Kibuuka Musoke AS V Travobase Center Ltd HCMA No.308/2008; Nasanga V
Nanyonga [1977] HCB 319; Read Article 126(2) (e)

 Chamber summons to be supported by valid affidavit and summary of evidence

especially where essential documents are referred to where affidavit is not
enough , compliance with 0.6 r 1(b) is a must and non compliance renders the
application laible to be struck off Jetha Bros Ltd v Mbarara Municipal Council .

 NB: Notice of motion and chamber summons relate to interlocutory

applications; However, note originating motion and originating chamber
summons;[miscellaneous causes rather than misc. app;ication; Salume Mukasa
VYozefu Bukya [1966] EA 433

 Whether citation of the wrong law renders the application fatally defective;DFCU
leasing Co. Ltd v Nasole Faridah HCT -00-CC-MA 0074 -2007 Application
brought by chamber summons for consolidation of suit under 0.11 r. 1 and 2
CPR SI 75 – 1 – questions whether citation of wrong instrument was fatal; Held
Misquotation of the statutory instrument number could not cause any injustice
and could not have misled the respondent. Just a minor technicality capable of
being ared by articles 126 of the constitution.

 Wrong Procedure being adopted; Kibuuka Musoke as v Travobase Centre Ltd

HCT -00-CC –MA 308 /2008 application dismissed because it was wrongly
brought under 0.27 r 10 and 12 CPR and commenced by chamber summons

Draft Notes on Civil Procedure 1 Muk 24 2010-2011 by Joseph Kyazze Esq.

 rather than notice of motion.

 Hajati M Nagawa v Paulo Kajubu & Anor HCCS No.348/1976; Application by

notice of motion under the wrong law; and instead of chamber
summons.Proceedings to be vitiated for non compliance with rules of
procedure only if injustice is doe to parties .Non compliance with the rules of
procedure of the court which are directory and not mandatory rules would not
usually result in the proceedings being vitiated, if in fact no injustices has been
done to the parties.

 Salime namukasa v Yosefu Bulya (1966) EA 433 UDO Udoma C.J that before
the provisions of section (98) can be invoked, the matter or proceedings
concerned must have been brought to the court, the proper way in terms of the
procedure prescribed by the rules .

 The applicable test is whether the irregularity is serious enough to prevent the
court from hearing the application and determining it on its own merit . If the
non observance of the procedural rules in issue would not lead to injustice,
court should be willing over look it, otherwise should to sanction it would be to
uphold technicalities; Alcon international v Kasirye Byaruhanga and Co
Advocates 1995 ) III KALR 91 – see Intra ship (U) Ltd V GM combined Ltd 1994]
VI KALR 42

 Summary Procedure O.36 CPR; applicable to claims that are liquidated,

commenced by way of a specially endorsed summary plaint; Shelter Ltd V
Anastasia Nakkazi Misc. App.115 /2007

 Lwanyanga Lutima v Ruth Nnankyewa HCT -00—CU –CS -0707 –

2001.Summary procedure – application for leave to appear and defend to be
allowed where there are serious traible issues. see also Uganda micro
enterprises Ass Ltd and Anor v The Micro Finance Support centre LTD HCT
-00-cc –ma – 125/2005

 Summary suit to be commenced by a specially endorsed summary plaint

accompanied by a valid affidavit Shelter ltd v Anastazia Nakkazi HCMA No. 113
/2005

 See also Petitions; Applicable in Divroce matters, election petitions and

constitutional petitions; petitions either accompanied by affidavits or verified
and should be commissioned; Dr. James Rwanyararee & Anor V AG
Constitutional Appeal No. 1 of 1999 Nelson Sande Ndugo V EC HCT -01-CV-EP
0004/2006; Re Edith Nassaazi Adoption Cause No. 6 of 1996

 See other modes; statement of claim, letter; LDC V Edward Mugalu & Anor.
[1990-91] KALR 103

Draft Notes on Civil Procedure 1 Muk 25 2010-2011 by Joseph Kyazze Esq.

 Issue of Summons: O.5 Cpr:
Summons is provided under O.5 CPR and are documents of court issued upon a
party presenting a plaint or any other pleading that commences proceedings in
court.

Types Of Summons:

 Ordinary Summons: O.5: Issued by a court pursuant to a party presenting a

summons and it directs a defendant to file a defence in court within 15 days if
he wishes to defend the claim of the plaintiff.

 Summons on summary suit: O.36 r 4: Document issued by court in cases where

the plaintiff has filed a summary suit. It requires the defendant to apply for leave
of court to defendant the suit.[see distinction between ordinary summons and
summons on a summary plaint] Read Mugume & Anor. V Akankwasa [2008]
HCB 159

 Originating Summons: The requirements of signing and sealing are mandatory

and the originating summons must be accompanied by a plaint. Read; Kaur Vs
City Auction Mart:[1967] EA 108(U

 Notice of Motion; The practice of the court is to treat the Notice of Motion as the
summons, thus the Notice of motion ought to be issued by the Regsitrar/
deputy registrar and should be signed and sealed as required by 0.5 r.1(5)
CPRs; Read; Dairy Corporation V Opio [2001-2005] HCB 113

 See also Chamber summons; Read; DFCU Leasing Co Ltd V Nasolo Faridah
HCT MA 0074/2000 for the pre-requistes

 Hearing notice; requires a party to attend court on a particular day if he wishes

to take part in the proceedings. The notice must be served on the defendant.
Ahmad & Associates V Bauman (U) Ltd CACA 46/2000; The applicant did not
serve the hearing notice for leave to appear and defend on the defendant in a
summary suit. Held; that the applicant didn’t know of the hearing date of the
application to appear and defend in a summary suit. Thus he or his counsel
could not prosecute it. Court allowed the appeal and remitted the application to
the High court to be heard on its merits before another judge. Read; Edison
Kanyabwera V Pastori Tumwebaze[2001-2005] HCB 98 for the principle that the

Draft Notes on Civil Procedure 1 Muk 26 2010-2011 by Joseph Kyazze Esq.

 rules applicable to service of summons apply to hearing notices

 Taxation Hearing Notice: Issued against the Defendant in taxation matters to

attend taxation proceedings[ consider the Advocates Remuneration and
Taxation of Costs Rules

Conditions for and Service Of Summons:

 Purpose of summons; O.5 r 1. When a suit has been instituted by presenting a
plaint in court officer, the summons may issue to the defendant;
a) Ordering him to file a defence within the time specified therein.
b) Ordering him to appear and answer the claim on the day specified therein
The function of summons is to fix the day for appearance.Read; Re. Pritchard
(1963] ALLER 873

 Summons must must be signed by a judge or court officer and sealed with a court
seal. E.A Plans Ltd V Roger Allan Birkford-Smith [1971] HCB 225; According to O.5
r.1 (5) CPR a summon is a command from the court and must therefore always be
signed by the court itself or such officer to whom the court delegates such power.
An advocate was not one such officers and summons signed by him thus lacked
any force of law. Kaur Vs City Auction Mart:[1967] EA 108(U)

 The practice of the court is to treat the Notice of Motion as the summons, thus the
Notice of motion ought to be issued by the Regsitrar/ deputy registrar and should
be signed and sealed as required by 0.5 r.1(5) CPRs; Read; Dairy Corporation V
Opio [2001-2005] HCB 113

 Presumption of authenticity of signature. there is a rebuttable presumption that a

person signing a summons as acting Deputy Chief Registrar has been duly
authorized. A. Bauman and Co. (U) Ltd Vs Nadiope:[1968] EA 306(U);

 That Effect of an incorrect seal; the affixing of an incorrect seal of one court on a
document instead of the seal of another court is mere irregularity and does not
render the summons a nullity. See; O.5 r 2; Nanjibhai and Co. Ltd Vs Standard Bank
Ltd: [1968] EA 670[CA-K]

Service of summons:
Time limit
 O.5: Summons issued under O.5 r1 (a) must be served on the defendant
within 21 days from the date is issue. Century Enterprises Limited V Green
land Bank ( In Liquidation) HCT-00-CC-CS-0877-2004 Elite International
Tobacco (U) Ltd V Marchfair Stationary (U) Ltd [1997-2000] UCLR 253.

Draft Notes on Civil Procedure 1 Muk 27 2010-2011 by Joseph Kyazze Esq.

  The time may be extended on application to court made within 15 days after
the expiration of 21 days showing the reasons for extension. [Procedure is
by Notice of Motion but see the practice]

 Effect of failure to serve within time; O.5 r 3 (a, b, c): If summons are not
served within 21 days and thee is no application for extension of time or
when the application is dismissed without notice, the suit shall be dismissed
without notice.

 However, where a defendant/respondent is served and appears, the court

may exercise its discretion and allow the suit to proceed. Century
Enterprises Limited V Green land Bank ( In Liquidation)
HCT-00-CC-CS-0877-2004[ see special circumstances of the case]

Mode Of Service Of Summons:

 Duplicate to be served with the plaint; Service of summons shall be by

delivering and tendering a duplicate copy thereof signed by the judge or such
officer on his behalf;[ see copy and wording of the summons] Read; Dairy
Corporation V Opio [2001-2005] HCB 113

 The requirement that a duplicate be delivered or tendered is mandatory and if

not complied with, the service is bad. Erukana Kavuna V Metha [1960] 305 (U);
Every summons must be accompanied by a copy of the plaint, brief summary
of evidence, list of witnesses, list of documents to be relied on at the trial and
list of authorities. See, Kaur Vs City Auction Mart, 1967 EA 108;Held:
Originating summons are normally accompanied by a plaint a must both be
served onto the defendant.

 Rationale for serving summons with a plaint; Summons must be accompanied

by a copy of the plaint and served on the defendant. It would be impossible for
the advocate to serve only summons and leave behind the plaint which
contained the basis of the client’s claim against the applicant: Mugume &
Anor. V Akankwasa [2008] HCB 159

 The requirements of signing and sealing are mandatory and the originating
summons must be accompanied by a plaint Kaur Vs City Auction Mart:[1967]
EA 108(U) Read; Robinson V Olwoch [1971] EA 376(K)

 Service by authorised person; When court has issued the summons may be
delivered for service to any person for the time being duly authorized by court,
i.e. court registrars, clerks, advocates, advocate clerks on approval by court to
effect service.O.5 r.7 CPR. Mugume & Anor. V Akankwasa [2008] HCB 159[See
procedure of being approved as a court process server/clerk]

 Service must be personal: O.5 r 11: Service must be effected on the person

Draft Notes on Civil Procedure 1 Muk 28 2010-2011 by Joseph Kyazze Esq.

 upon whom the summonses are directed unless he has an authorized agent.
Erukana Kavuma Vs Metha[supra] The process server for the plaintiff stated
that he did not find the defendant at his shop and served the summons on the
defendant’s wife and obtained an exparte judgment which was challenged.
Held: That O.5 r 9 and O.5 r 11 was not complied with because the duplicate
copy of the summons was tendered or delivered to the defendant’s wife,
service was therefore bad. The process server did not inquire as to the
address of the defendant in India and for how long he will stay there. See O. 5
r 2.

 The function of summons is to fix the day for appearance and must be served
on the defendant in person Re. Pritchard (1963] ALLER 873 .

 Proper effort must be made to effect personal service; Katukulu V

Transocean[1974] 276 (CA-U)Held; That service of a plaint and summons to
enter appearance should be effected on the defendant personally and where it
is nor possible or practicable, the plaintiff should always proceed by way of
substituted service in accordance with the CPRs. The fact that the defendant
was never served personally with court process was sufficient to show that
they had never served the summons.

 NB: That certain steps must be complied with before leaving summons with
another person or affixing it on the premises. Other alternative modes are not
applicable unless there is evidence that the defendant could not be found;
Waweru V Kiromo[1969] EA 172 K; for the principle that merely because the
defendant is not at homewhen the process server went to his home doesnot
mean the defendant cant be found.

 Need for sufficient inquiry about the defendant’s whereabouts; Lalji Vs Devji.
A clerk of the plaintiff’s advocate made several attempts to serve a summons
upon the defendant at his house in vain and served the summons on the
defendant’s wife under O.5 r 14, judgment was challenged on ground that
service of summons was bad. Held: That no proper or sufficient inquiry was
made as to the defendant’s whereabouts or whether the defendant could not
really be found. Accordingly service on the defendant’s wife was not effective.

 Service upon an adult member of the defendant’s family including a wife;

Bulenzi Vs Wandera:[HCCS No.1047/90 The affidavit of service stated that
service was made onto the Defendant’s wife who had revealed to the process
server that she was not living with the applicant as he was then staying
outside the country and that she would make efforts to send the summons to
him. The defendant contended that service was not in accordance with O.5, r
14 which requires that service on the person residing with the person named
in the summons. Held: At the time service was purported to be made on to the
wife of the defendant the wife was not residing with the defendant therefore
this was no service as contemplated by O.5 r 14 when the defendant was not

Draft Notes on Civil Procedure 1 Muk 29 2010-2011 by Joseph Kyazze Esq.

 found at his home. Waweru V Kiromo[1969] EA 172 K;

 The question whether service on an adult member of the defendant’s family

residing with him is proper service may be a mixed question of law and fact
and sometimes of law or fact alone; See also Waweru V Kiromo[1969] EA
172(K)

 Affixing summons on the door or other conspicuous place; Erikanah Omuchilo

V Ayub Machiwa [1966] EA 229(K) The process server accompanied by an
agent of the plaintiff failed to find the defendant at a resident where he
ordinarily stayed to serve a summons on him but the defendant could not be
found there. The process server affixed a copy of the summons on the
entrance door to the house and swore a brief affidavit to that effect. Later
judgment was entered exparte for the plaintiff. Held: That before a process
server could validly effect service by affixing the copy of the summons to the
premises, he must by virtue of O.5 r 14 first use all due and reasonable
diligence to find the defendant or any of the persons mentioned in O5 r 11 and
r 12 and thus on proof of that (that non of them could be found) that he could
affix a copy the summons on the premises, particulars of which should be
given [O. r 16]. The service upon the defendant was wholly ineffective as the
process server had not used all due and reasonable diligence to find the
defendant a person mentioned in O.5 rr 9,11 and 12, accordingly judgment
should be set aside without terms being imposed on the defendant.

 The disclosure of the name and address of the person who identified and
witnessed delivery or tender of the summons to the defendant at the material
time is a statutory duty. M.B Automobiles V Kampala Bus Service [1966] EA
480.

 Day of service, excludes Sundays and Public holidays; Wasswa Vs Ochola,

SCCA No.05/1990; O. 51 r 9; The applicant moved to set aside an exparte
judgment on grounds of non-service, which was purportedly made on Sunday.
The affidavit of service did not disclose how the process server knew the
person to be served. The plaintiff had exparte remedies. Service on sunday is
void within the meaning of O.51 r 9 CPR as no service can be effected on
Sunday. The affidavit of service should complied with O. 5 r 17 where service
is effected under O.5 r 15, the address of the person identifying the individual
to be served should be annexed to the affidavit.

 Service on several defendants:- O.5 r 11: When there are several defendants,
then each of them must be served (see Omuchilo’s case, Supra), EAGEN V
Ntende [1979] HCB 227; Held that since the plaintiff had decided to join all the
six defendants, the plaintiff brought upon himself the duty to effect service on
each of them. Failure to serve all of them was a good cause to set aside the
decree.

Draft Notes on Civil Procedure 1 Muk 30 2010-2011 by Joseph Kyazze Esq.

 O.5 r 11: When the defendant has an agent with power to accept service e.g.
advocate, such service to the agent is sufficient. [See Omuchilo’s case]. See
also O.3r.1 Service on an advocate; See O.3 r.1 advocate as agent of the party
to the suit; Beliram V Salkind [1954] 27 KLR 28; There was no notice of change
of advocate on the file. Service was effected on the advocate who had
withdrawn about a year ago. Held that because of O.1 r.1& 2, by entering an
appearance and giving the address, the advocate became liable for service,
which was deemed as effective as if it was served on the defendant in person.
Twiga Chemical Industries Ltd V Viola Bamusedde CACA No. 9/2002

NB: Service upon several partners is good service See O.5 r 12, O.5 r 13. NB:
See O. 30 r 3 for partnerships Read; Geoffrey Gatete & Anor. V William Kyobe
[2007] HCB Vol.1 54

 NB. Service on an agent in charge of immovable property in the suit for relief
for respecting immovable property is good service.

 Service on an adult member of the family; O.5 r 14: If the defendant can not be
found service on an agent or adult member of the defendant’s family is good
service, see, Omuchilo’s case, See Balenzi Vs Wandera [supra].

 Service on a member of the defendant’s family must be effected on an adult;

Service upon a minor found at the defendant’s home is bad; Betty Owaraga V
George William Owaraga CA No.60 of 1992.

 It is general practice in as far as possible to serve the defendant himself. The

process server must show that he knows the defendant and if not, must get
one who knows the person and must have an affidavit of service.
Tindarwesire Vs Kabale T.C (1980) HCB 33:

 Person identifying the defendant must be mentioned in the affidavit.Frank

Katusiime V Business Systems Ltd HCSC 717/1993; Katutsi J Held; that the
disclosure of the name and address of the person who identified and
witnessed delivery or tender of the summons to the defendant at the material
time is a statutory duty. Failure by the process server to disclose the name of
the receptionist who allegedly pointed out the managing director to him had
the effect of rendering them defective for non-compliance with the provisions
of 0.5 r.16

 Duplicate to be delivered and acknowledgement of service to be given; O.5 r

15: That when a duplicate has been delivered and tendered to the defendant
personally, his agent of the defendant or such other person in required to
acknowledge the original summons provided that if the defendant or his agent
refuses to sign, court may declare such summons to have been served.
Erukana Kavuma Vs Metha(supra) Held: That the requirement that a duplicate
be delivered or tendered is mandatory and if not complied with the service is

Draft Notes on Civil Procedure 1 Muk 31 2010-2011 by Joseph Kyazze Esq.

 bad.

 Service on Corporations: NB: R 14, 16 and 17 do not apply to the corporations

and service on corporations can not be effected in accordance with those
rules [Nzioki S/o Mutumenta Vs Akamba Handcraft industries Ltd] O.29 r 2:
Service on corporations is made upon the secretary, directors, principal officer
of the company (like the general manager) on whom summons may be left or
sent by post to the corporation’s registered office. If no registered office, then
to their premises.

 James Musajjalumbwa V Bitumastic Ltd [1982] HCB 103; Service upon

company secretary, director or principal officer or by leaving the summons at
the registered office or place of business. Read also J.F Ijjala V Corporation
Energo Projekt [1988-90] HCB 157 For the principal that if summons are left at
the principal place of business or head office of the defendant, that is effective
service.

 Augustine Okirol Vs Gerald Lwasa and PMB:Service was effected on the

secretary of the general manager of the company reliance being placed on
O.29 r 2 and the defendants contended that service was bad. Held: That the
secretary of the general manager was not within a class of persons intended
by the rule and could not fall within the ambit of the principal officer of the
corporation hence the service was not effected.

 Substituted Service: Where the defendant cant be found and other modes are
equally not effective, O. 5 r 19: When it is impossible to serve the defendant in
the ordinary way, court shall order that the summons be served by affixing a
copy at some conspicuous place of the court, house, some conspicuous place
on the house where the defendant last resided or such a way as court deems
fit but court must be satisfied that due diligence was undertaken to look for
the defendant. Application by Chamber summons

 That service should be personal or substituted with leave of court otherwise

there will be no proper. UTC Vs Kewaza [1975] EA: see procedure of applying
for substituted service.

 The advertisement of summons without prior leave of court doesnot

substitute for personal service of such summons on the defendant but is
mere notice; Read Kearsley (Kenya) Ltd V Anyumba & Othrs [1974] EA 112

Service of court process by substituted service is deemed as good as service

on the person personally Violet K. Mukasa V Erizafani Matovu[1992-93] HCB
235; However Read; Read; Geoffrey Gatete & Anor. V William Kyobe [2007] HCB
Vol.1 54

Draft Notes on Civil Procedure 1 Muk 32 2010-2011 by Joseph Kyazze Esq.

 Proof of service;
 As a general practice, the court should require an affidavit of service of
summons in every case before entering judgement in default of appearance.
Kanji Naran V Ramji 21 EACA 20; Edison Kanyabwera V Pastori Tumwebaze
[2001-2005] HCB 98

 Service of summons , the affidavit must show that a copy of the plaint and
affidavit in support were served with the summons. Lusiano Lippi v Venice (U)
Ltd [1992] IV KALR 7 .

 The rule in order 5 r.17 that an affidavit of service has to be sworn where the
summons have been served equally applies to hearing notices. The provisions
of the rule are mandatory. The absence of an affidavit leads inevitably to a
conclusion that the defendant was not properly served. Edison Kanyabwera V
Pastori Tumwebaze [2001-2005] HCB 98

 Acknowledgement of service by the defendant: See O.5 r 17:The process

Server is obliged to swear an affidavit stating the time and manner of service
and the name of the person served and witnessing the delivery or tendering of
the summons. See O.5 r.16 CPR Osuna Otwani V Bukenya Ssalongo [1976]
HCB 62; O.5 r.17 is mandatory and is designed to ensure that there is actual
service and that it is carried out properly. Hence it would be dangerous for
courts to accept the fact that there was service of summons when summons
were not actually signed by the defendant/appellant [but see the practical
implication]

 NB; When a defendant is served with summons, he must enter appearance by

filing a defence within the prescribed days in the summons. Time however
does not begin to run against the defendant until he has been properly served.
Musa Kudaga V NIC (1977) HCB 243

 Appearance of a defendant not properly served; Musa Kadunga V NIC [1977]

HCB 243; the summons was defective for it was not signed by the legal
secretary. The fact that both appearance and defence were filed before
service was immaterial. That the time does not begin to run until the
defendant is properly served.

 Where a defendant denies having been served , the burden is on him to prove
to the satisfaction of court that the service was ineefective; Read the case of
Busingye, Bamutonda & Othrs V William Katotsire [2001-2005] HCB 108

 Illiteracy in English is no ground for ignoring summons and the person served
can not rely on that as a ground for not entering appearance; Read F. Magera
& Anor. V Kakungulu [1976] HCB 289

Draft Notes on Civil Procedure 1 Muk 33 2010-2011 by Joseph Kyazze Esq.

 Alemayeli Degafa vs Kin Buwerman 1994] IV) 27; serving summons outside
jurisdiction 0.5r 23, 27 and 33 whether the application not proper because
defendant not ordinarily resident in courts jurisdiction in the same as the
subject matter between the plaintiff and the defendant .

APPEARANCE & DEFENCE

Appearance and Defence;
See O.9 r 17 and 18; S. 20 CPA: Once a suit has been instituted, the defendant
has to appear and answer the claim (O.5 r 3). See different modes of responding
to summons; vide; filing a defence, an application for leave to appear and
defend, an affidavit in reply all depnding on the type of summons.
Filing of a defence:
Order 8 r 1: A defendant may, if so required by court at a time of the issued of
summons or any time thereafter as prescribed by court file a defence within 15
days unless otherwise ordered by court. [ 30 days for Attorney General. Read
Rule 6 of the Government Proceddings Civil Procedure Rules

Draft Notes on Civil Procedure 1 Muk 34 2010-2011 by Joseph Kyazze Esq.

 How is a defence filed
O.9 r1: This is done by delivery of a written statement of defence dated on the
day it is filed, stating the name of the defendant if he is to appear in person or
his advocate and the address of service. The defendant shall file and sent it,
showing the date and return it to the person filing it and the defence shall be
served onto the plaintiff. See copy of the defence.
Effect of failure to File a defence
This depends on the nature of the suit and the subject matter as well as the
defendant in question. Generally, a defendant who fails to file a defence within
the time limited by law is deemed to have excluded themselves from the
proceedings in court. Sebunya Vs Attorney General [The Plaintiff sued the
Attorney general who failed to file a WSD within the statutory period and was
nor represented at the hearing. A state attorney appeared for the defendant.
Held: A defendant who files no defence could not be heard. The state attorney
as in the instant case even if he had appeared in time would have had no locus
standi and could not be heard. AG & UCB V Westmont Land (Asia) Bhd & Others
[1997-2001] UCLR 191

What constitutes Appearance Whether physical or legal:

Appearance is both legal and physical depending on the stage of the
proceedings; O.9 r 1: Opa Pharmacy Vs Howse SMC George(1972) ULR 115:
Held: The appearance under O.9 r 1 connotes legal rather than physical
appearance. That appearance under O.9 r 1 meant simply the delivery of a
written word and memo of appearance stating that the defendant would appear
in person. [ position then, current position is to file a WSD rather than a
memorandum of appearance.
What amounts to appearance in court
Appearance does not mean being physically in court but notifying court of a
party’s presence Kyobe Ssenyange Vs Naks Ltd (1980) HCB 31: This was an
application to set aside a decree granted exparte on ground that neither
applicant nor counsel appeared. Applicant was physically in court as was his
advocate when the application was called for hearing though during the hearing
he did not raise up his hand as requested; Held: That mere presence of the party
alone does not amount to presence as the party must indicate to court that he is

Draft Notes on Civil Procedure 1 Muk 35 2010-2011 by Joseph Kyazze Esq.

 appearing for a matter. Under O.3 r 1 advocates are recognized as agents who
can appear for parties and being holders of powers of attorney.

Legal representation Appearance in person or through an Advocate

 Appearance may be by a party or his advocate; [see hearing notices] Sekyaya Vs
Sebuguli: That if the plaintiff is represented in a case as much as the plaintiff’s
counsel is present and appear on the plaintiff’s behalf, then the plaintiff pursuant
to O.3 r 1 will be said to be legally in court. Harriet Kizito v Ggoloba Godfrey CA
No. 65/2005; Handoni Daniel V Yolamu Egondi CACA No.67 of 2003

 Kawooya Vs Naava:[1975] HCB 314 This was an appeal against a decision of a

chief magistrate dismissing the appellant’s application under O.9 r 24 to set aside
an exparte decree passed against him. Appellant deposed that he did appear at
the hearing due to a sudden change of venue for the hearing, thus his counsel
went to a wrong court. Counsel had been arrested the previous day thus was
unable to appear. The Magistrate had dismissed the grounds as insufficient.
Held: That a decree entered exparte will be set aside if the appellant was
prevented by sufficient cause from appearing when the suit was called for
hearing [O.9 r 24]. Since under O.3 r 1 any person may appear by person or by his
advocate, appearance for purposes of O.9 r 24 means appearance of his
advocate. That the appellant had shown sufficient cause within O.9 r 24 for his
non appearance at the hearing and the exparte decree would be set aside.

 Effect of Failure to appear: If the defendant without sufficient cause fails to

appear in court, the plaintiff will be entitled to proceed exparte by obtaining leave
to prove his case or judgement may be entered in default, or interlocutory
judgement may be entered depending on the nature of the claim.

 The Defendant will have excluded himself from proceedings unless he applies to
show cause as to why he did not file the defence within the time allowed. Mark
Graves V Balton (U) HCMA No.158 of 2008; Bukenya Vs Attorney General (Supra).

Draft Notes on Civil Procedure 1 Muk 36 2010-2011 by Joseph Kyazze Esq.

 Twiga Chemical Industries Ltd V Viola Bamusedde CACA No. 9/2002; Silas
Bitaitana V Emmanuel Kananura CACA No.47/1976; AG & UCB V Westmont Land
(Asia) Bhd & Othrs. [1997-2000] UCLR 191
 Extension of time to file a defence; Extension of time may be when parties have
consented or where the party has applied to court.[see s.96 CPA] Godfrey Magezi
& Brain Mbazira V Sudhir Rupaleria SCCAPP 10/2002. Applicant sought
extension of time within which to file an appeal out of time to appeal against the
decision of the Court of appeal. Held; that court has jurisdiction to extend for the
doing of an act so authorised or required. The omission, mistake or inadvertence
of counsel ought to be visited on the litigant leading to striking out his appeal
thereby denying him justice. Even if the legal advisor’s actions have been
negligent, an extension of time has been accepted. Read; Robert Opio & Anor V
Edward Kabugo Sentengo HCMA No.166-2002 for what amounts to sufficient
cause to warrant extension of time to file a defence
 That the legal effect of extending time to file an appeal out of time when the
appeal had already been filed(out of time) is to validate that appeal or to excuse
the late filing of that appeal. See also Credit Finance Co Ltd V Makerere
Properties SCC Appl No.1 of 2001.

PARTIES TO CIVIL ACTION:

 In the law of pleadings, it is necessary to establish the party to be sued and
each pleading must contain at its head the name of the defendant and the
plaintiff.

Draft Notes on Civil Procedure 1 Muk 37 2010-2011 by Joseph Kyazze Esq.

 It is pertinent to determine the necessary parties or unnecessary parties before
filing a suit.[ Examine the legal significance of determining parties to the suit]

 Plaintiff as Dominae Letis: A plaintiff in civil procedure is free to sue any

defendant whom he thinks he has a claim and can not be forced to sue
somebody. See; Animal Feeds V A – G [1990] HCB; Read Kakooza Mutale V
AG[2001-2005] HCB 110

 A plaintiff is entitled to choose the person whom he/she wishes to proceed

against and to leave out any person against whom he/she doesnot not wish to
proceed against. Read Kakooza Mutale V AG[2001-2005] HCB 110; Dairy
Corporation V Morris Ogwal and Otai Samuel [2001-2005] HCB 115;

 Butemuka Vs Anywar and Another. [1977] HCB 77; A preliminary objection was
raised; that the Applicant had sued the 1st Respondent who would not have been
a party to the suit and against the tenants already in occupation of premises.
Held: That non-compliance with the rules of procedure must not determine the
proceedings if there is no injustice caused to the parties. The present
application fell under the general rule; that the plaintiff is at liberty to sue
anybody he thinks he has a claim against and cannot be forced to sue
somebody.

 Where a plaintiff proceeds against the wrong party, he has to shoulder the
blame Kakooza Mutale V AG and Anor.[ 2001-2005] HCB 110; Read Manzur
Alam V The Embassy of Saudi Arabia

 On effect of suing a wrong party; Where a plaintiff sues a wrong party, court has
to strike out the plaint Butemuka Vs Anywar and Another. [1977] HCB 77; Read
Manzur Alam V The Embassy of Saudi Arabia; [see the distinction between a
wrong party and a non existing party and the remedies available. See O.1 r.
10CPR; See Narrottam Bhatia And Anor V Boutique Zhazim Limited HCCS No.

Draft Notes on Civil Procedure 1 Muk 38 2010-2011 by Joseph Kyazze Esq.

 411 of 1992;

 Importance of identification of parties; The choice of parties is important in

determining the mode of procedure, enforcement of judgments, in obtaining
remedies and costs. The parties must be correctly stated otherwise failure
thereof would result in loss of the remedy against the wrong party as well as
expenses.
Who Can Sue Or Be Sued:
 The general is that all parties with legal capacity can sue or be sued. See RTD
Col Dr. Kiiza Besigye & Others V The DPP & AG Constitutional Petition No.12 of
2006; the constitutional court reiterated the principle that only parties
recognized by law as having a legal existence can sue or be sued. Since the
DPP was not a legal entity but a department of the government that had no
independent legal existence and was not a suable entity.

 A legal person is an entity that has the legal capacity to represent its own
interests in its own name, before a court of law, to obtain rights or obligations
for itself, to imposse binding obligations, to grant ptrevilleges for example as
plaintiff or defendant; It is a status that is conferred by law and not simply
assumable. A legal person exists whenever a law recognises, as a matter of
policy, the personality of any entity, regardless of whether it is naturally
considered to be a person or not. Kakooza Mutale V AG and Anor.[ 2001-2005]
HCB 110

 Note The Commissioner General URA V Meera Investments Limited SCCA No.
22 of 2007 for the proposition that he/she who is empowered to sue is also
made liable by necessary implication to be sued.
 It is a well established proposition that in general only legal persons can sue or
be sued. Legal persons may be individuals, corporations, corporation soles or
companies, firms may sue or be sued in certain circumstances. Eddie
Rodrigues V The British High Commission SCCA NO.8/87. Odoki JSC [ see

Draft Notes on Civil Procedure 1 Muk 39 2010-2011 by Joseph Kyazze Esq.

 Quotation in Manzur Alam V The Embassy of Saudi Arabia HCCS NO.402 OF
2002

 All legal persons can sue and or be sued. There are however differences in
procedure thus it is necessary to establish the right parties to the suit. See
discussion on commencement of suits
 Names of parties to suits: In bringing a suit, the names of the plaintiff must be
set out and the names of every defendant must be clearly indicated thus
ascertaining the parties to the suit.
 Individuals; Adults of sound mind are competent parties and they are
competent to institute a civil action [See S. 116 of the Evidence Act on
competence of witnesses being persons of age and sound mind, [see also
Article 31 of the constitution, on the majority age being 18; Cf age for civil
proceedings being 21 before the 1995 constitution, see Article 273 of the
constitution]. George Paul Emenyu & Anor. V AG [1994] V KALR 109Abdul Basit
Sengooba & Others V Stanbic Bank HCT -00-CC-CS 0184-2001[2006]; Read Kiga
Lane Hotel Ltd V UEDCL HCT-00-CV-CS-0557-2004

 Suit instituted in the name of a donee of a power of attorney should be struck

out for being a nullity. See also M/s Ayigihugu & Co. Advocates V Munyankindi
Muteeri;[1990-91] KALR 194; J.B Mpanga V Dr. Nkamuhayo Rwacumika HCC
Application No. 019/2009’ Narrottam Bhatia And Anor V Boutique Zhazim
Limited HCCS No. 411 of 1992’ Turn Sidpra & Anor. V Uganda Rehabilitation
Development Foundation[1994] 1 KALR 25;

 Suit should be instituted in the names of the donor through the donee; See
sample document; J.B Mpanga V Dr. Nkamuhayo Rwacumika HCC Application
No. 019/2009; Ayigihugu & Co. Advocates V Munyankindi[1990-91] 1KALR 180

 Companies; Companies are competent parties that can sue or be sued in their
corporate names. S.15(2) of the Companies Act Cap 110 is to the effect that a
company upon incorporation becomes a legal entity distinct from its
shareholders and can sue or be sued in its name. Read Nsangiranabo Erasmus

Draft Notes on Civil Procedure 1 Muk 40 2010-2011 by Joseph Kyazze Esq.

 V Associated properties Ltd[2008] HCB 142; Read Kiga Lane Hotel Limited V
UEDCL HCT-00-CV-CS-0557-2004

 In Sentamu V UCB [1982] HCB, the plaintiff was a majority shareholder and
director of a company that borrowed money from the defendant bank and failed
to pay prompting the defendant to cause his arrest and imprisonment. The
plaintiff sued for damages arising out of unlawful arrest and false
imprisonment. It was held that a company is a distinct legal entity and can be
sued in its own right for its debts. It was thus unlawful to arrest the plaintiff for
failure by the company to pay its debts, as the proper party was the company.

 Where a plaintiff proceeds against a director of the company for actions

/omissions of the company, the director may be struck out as being a wrong
party. Read Lukyamuzi James V Akright Projects Limited and Anatoli
Kamugisha HCCS No. 319/2002; But, Read; Lea Associates Ltd V Bunga Hill
House Limited HCT-00-CC-CS-0292-2008 for circumstances where a director
may be added as a party.

 Question is whether it is mandatory for a company to pass a resolution

authorising commencement of a sui; Bugerere Coffee Growers V
Ssebaduka[1970] EA 147; That when a company authorises commencement of
legal proceedings, a resolution has to be passed, either by the company’s
meeting or the Board of directors’ meeting and recorded in the minutes. In that
case, no such meeting was held to authorise the advocates to commence the
suit in the company’s name.

 However, in United Assurance Co. AG SCCA No. 1 of 1986, Wambuzi C.J held
that each case must be decided on its own facts. That unless the law
specifically required it, a resolution to authorise commencement of a suit is not
necessary. Read; Contraction Engineers & Builders Ltd V The New Vision & 3
Othrs [1994] III KALR 37; Fam International Ltd & Anor. V Mohamed El Fatih

Draft Notes on Civil Procedure 1 Muk 41 2010-2011 by Joseph Kyazze Esq.

 [1994] III KALR 108 SC; N.K Radia Vs. Kakkybhai & Co. Ltd [1995] I KALR 87

 Unincorporated entities; Unincorporated entities have no legal existence and

cannot ordinarily be sued in the same way like incorporated entities. These
include clubs, associations, some NGOs and churches among others. In
Okwonga Vs Anywar &Another [1984 HCB] 45, In this case, an action was
commenced against the Church of Uganda and the 1st Respondent objected that
C.O.U was not legal entity and could only be sued through representative action.
it was held that unincorporated organizations are not competent parties to
suits. Held: As a religious organisation, the C.O.U. is not a corporate body to run
its own affairs. A board of trustees is constituted with the power to sue and be
sued. That being so, C.O.U was wrongly sued and plaint was struck off subject
to an application for amendment.[see O.1 R.10 CPRs] [See Also Makula
international V Cardinal Nsubuga [1982] HCB, where the action was
commenced against the cardinal yet the contract was executed with the
catholic church and court held that the action could not be sustained except
through a representative suit.

 However, some churches normally have a board of trustees registered under the
Trustee’s Incorporation Act. The board of trustees upon registration acquires
corporate status and is the suable entity. See S.4 of the Trustee Incorporation
Act; Read; The Trustees of Rubaga Miracle Centre V Mulangira SSimbwa and
Mulangira SSimbwa V The Board of Trustees, Miracle Centre & Anor. HCMA No.
576/2006 Examples include the Board of Trustees of Namirembe Diocese. For
the Catholic Church, it is The Trustees of Kampala Arch Diocese see also; the
Uganda Muslim Supreme Council.

 In case of schools, unless owned by a company, the ordinary suable entity is

the management committee or the Board of governors. See Harriet Grace
Bamale(suing through her next friend) Kituma Magala V The Board of
Governors of Makerere College school[1994] 1KALR 10

Draft Notes on Civil Procedure 1 Muk 42 2010-2011 by Joseph Kyazze Esq.

 Local Governments; S. 6 of the Local Government Act as amended confers legal
status on local Governments; they can sue of be sued. Read S.3 LGA for the
definition of a local Government.

 Local Government council are the suable entities under the Act not Local
Administrations. See Kitgum District Administration V Print and Stationary
Suppliers CACA 44 of 1998. Action brought against District administration after
the enactment of the LGA, objection that the suit was a nullity having been
brought against a non-existent entity. Held; that the District Council was liable,
as it had by law inherited the liabilities of the local administration. [Inapplicable
to new districts]

 Local governments have independent existence from the central government

and are liable for their acts or acts of their servants. See Wakiso Cargo
Transporters Ltd V Wakiso District Council & AG HCT 00-CCCS 070/2004; The
attorney General could not be held liable for breach of a contract executed by
the district as the district had a separate legal existence from the central
government. Read Victor Juliet Mukasa & Anor. V AG [2008] HCB 168; Local
government administrative Unit is a body corporate capable of suing and being
sued in its corporate name under the Local Governments Act

 Alice Katungaza V AG; The plaintiff claimed damages for injuries inflicted on
her due to unlawful assault inflicted on her by her teacher in the course of her
employment. The Df raised an objection that the AG was not liable as the officer
concerned was an employee of a local administration; Court found that the
Government and the local administration had a separate legal existence and
were distinct legal bodies. The suit had thus been brought against a wrong party
hence it was dismissed [see alternative remedies under O.1 r.10.

 Statutory Corporations; Bodies created by statute, which confers upon them a

Draft Notes on Civil Procedure 1 Muk 43 2010-2011 by Joseph Kyazze Esq.

 distinct legal status. In effect, they can sue of be sued in their corporate name.
Examples; URA, see [action commenced in the names of the Commissioner
General of URA, See M/S Robo and Another V Comm. Gen of URA CACA No.55
of 2003; Read The Commissioner General URA V Meera Investments Limited
SCCA No. 22 of 2007

 Statutory Corporations have a distinct legal existence from the Government;

Read; Uganda Pentecostal University Ltd V The National Council for Higher
Education and AG HCCA No.36 of 2005; appeal against decision of the National
Council denying the appellant a provisional licence. Preliminary objection that
the council was a a body corporate with distinct legal existence from
Government and with capacity to sue or be sued in its corporate name. See
S.4(2) of the Universities Act No.7 of 2001; But reas Paul Nyamarere V UEB in
Liquidation [2008] HCB 126 on when a statutory corporation may cease to
exist.Read also Bagamuhunda Vincent V UEB in Liquidation HCCS No. 400 of
2007

 Government Departments; Some Government departments are conferred with a

corporate status and can sue or be sued in their corporate name. However there
must be an enabling law conferring such status. Charles Harry Twagira V AG,
DPP & Sam Kyomukama, Civil Appeal No.61 of 2002.

 Administrator General; See The Administrator General’ Act; administrator

General is a corporation sole and sue or be sued in such corporate name.
Administrator General V Uganda Posts & Telecommunications Corporation;
[1993] IV KALR 108; observation by court that the Administrator General could
sue the defendant/respondent to recover the benefits accruing to former
employees of the defendant.

 Directorate of Public Prosecutions; just a department under the ministry of

Draft Notes on Civil Procedure 1 Muk 44 2010-2011 by Joseph Kyazze Esq.

 justice and has no distinct legal existence; Charles Harry Twagira V AG, DPP &
Sam Kyomukama, Civil Appeal No.61 of 2002. That DPP is not a corporate body
and therefore has no power to sue or be sued and a suit commenced against it
is incompetent. See also RTD Col Dr. Kiiza Besigye & Others V The DPP & AG
Constitutional Petition No.12 of 2006.

 Okello Okello V UNEB [1993] 11 KALR 36; held; that by virtue of the functions of
UNEB, it was a government department since it was independent body seeking
to observe the government overall objectives in education. However, by its set
up as a corporation sole, the respondent had a choice whether to sue the board
as an emanation of Government or as an independent body.

 Non-statutory Bodies; only bodies conferred with a corporate status can sue or
be sued; in absence of a clear provision conferring such status, then such body
cant sue or be sued as a legal entity. Amos Mugisha & Sons V Chemical
Industries V DAPCB & NRM Secretariat[1990-91]KALR 38; That the Movement
Secretariat had no distinct legal existence and could not be sued as such

 The Registrar General is also a suable entity; See s. 4 of the Uganda National
Registration Bureau

 The Kabaka of Buganda is also a corporation sole that can sue or be sued. See
Article 249 of the 1995 constitution.

 Government; Government is a suable entity but suits by or against government

are initiated in the name of the A-G; see S.10 GPA and Article 250(2) of the
Constitution; Read Charles Harry Twagira V AG, DPP & Sam Kyomukama [2008]
HCB 28

 Government liable for acts of its employees committed in the course of their

Draft Notes on Civil Procedure 1 Muk 45 2010-2011 by Joseph Kyazze Esq.

 employment. See S.3 of the Government Proceedings Act.[see procedure of
commencing suits against Government]; See Wakiso Cargo Transporters Ltd V
Wakiso District Council & AG HCT 00-CCCS 070/2004; Read Victor Juliet
Mukasa & Anor. V AG [2008] HCB 168;

 Foreign/Diplomatic Missions or Embassies; Entitled to Immunity from criminal

and civil proceedings; see the Diplomatic Immunities Act. See the category of
officers entitled to Immunity; No immunity in case of commercial transactions;
Eddie Rodrigues V The British High Commission SCCA NO.8/87. Held that if a
government or one of its departments goes into the market places of the world
and engages in straight forward commercial transactions, then its within the
territorial Jurisdiction of the courts of the foreign Sovereign. The sovereign cant
claim immunity in respect of such transactions.See Ndibarekera V The United
States of America HCCS NO.786/97. [Also discusses the mode of service on a
foreign Government]

 Manzur Alam V The Embassy of Saudi Arabia HCCS NO.402 OF 2002 Suit for
recovery of immovable property against the Embassy; issue as to whether Court
had Jurisdiction to entertain the suit. Held; That the property in dispute being
immovable and situate in Uganda, court has jurisdiction to entertain the dispute
over it.

 As to the proper party to be sued; Held; that the Embassy of Saudi Arabia
should not have been sued as such. The proper defendant ought to have been
the Kingdom of Saudi Arabia. That an embassy is a branch and therefore an
emanation of the Government of the sending state and holds property on its
behalf. The action therefore should have been brought against that Government
Manzur Alam V The Embassy of Saudi Arabia HCCS NO.402 OF 2002; [see
remedies available where a wrong party is sued; O.1r.10 CPRs. [read full
decision]

Draft Notes on Civil Procedure 1 Muk 46 2010-2011 by Joseph Kyazze Esq.

 Suits by or Against Partnerships: O.30 R 1; A partnership has no distinct legal
existence from the partners. [Compare a company]. See Benjamin Sajjabi/T/A
Namataba V Timber Manufacturers Limited [1978] HCB 202; Held; that as the
defendant was not a limited liability company, it had no legal existence. Read;
Read; Geoffrey Gatete & Anor. V William Kyobe [2007] HCB Vol.1 54

 The suit is commenced against named persons [all normally trading as a

partnership] not a suit against the firm. A suit may be brought against a
partnership even though it has been dissolved. In Nterekeya Bus Service V Rep
of Kenya 196691) ALR Comm 452, it was held that a firm has no independent
existence apart from its individual members who carry on business both as
principals and as agents of each other within the scope of the partnership
business.That the frim is a mere expression not a legal entity. The conviction of
a firm name was thus a nullity.

 O. 30 r 1 allows partners to be sued in the firm name and it is not the

partnership being sued. The plaintiff may insist on full disclosure of the names
of persons constituting a partnership. Horra Vs Horra [1959] EA 981 (K). . In that
case, the defendants formerly constituting a partnership, which had been
dissolved, were served personally. Three persons entered appearance but filed
a joint defence. The Plaintiff applied to strike out a defence as individual
persons did not describe themselves as partners in the partnership firm. Held;
that a claim may be enforced against a partnership without making all the
partners parties thereto. Held: The partners were not sued in the firm name in a
manner envisaged under O. XXIX, r1, CPR [now O.30]. The Plaintiff should have
sued the defendants trading as the Colonial Printing Works to conform to the
Order. Having not done this, he decided to sue them individually and as partners
of the firm on their joint liability in partnership.

 See alsoSarwan Singh Vs Karan Singh [1963] EA 423 (K). Observation by

Newbold P. that power to sue in a firm name is merely procedural but it is

Draft Notes on Civil Procedure 1 Muk 47 2010-2011 by Joseph Kyazze Esq.

 proper pleading to set out the names of the partners in the plaint. (See Kasana
Produce Vs Kato [1973]). Johnson VS Moss (1969) EA 654.

 Maki V Saidi [1961] 1 ALL NLR 502; That in order to succeed against a
partnership, the action must be brought; against all members of the firm,
against the firm in its registered name, against one or more partners as
representatives of the firm. Read; Reliable African Insurance Agencies V NIC
(1979) HCB 58; Read also; Kaggwa V Sohan Singh & Co.(1972) HCB

Management committee Mengo primary school and Ors v Ngabo Newspaper

1993 ] 1 KALR 115 on the issue of whether the management committees of a
primary school can sue or be sued .

Suits By or Against Minors and Persons of Unsound Mind: O. 32.

 In general, subject to special rules of procedure, a minor may sue or be sued but he
may not in person assert his rights in a court of law as the plaintiff or applicant nor
make himself liable as a defendant or respondent for costs.

 O.32 r1. Every suit by a minor shall be instituted in his names by a person who in
such a suit shall be called the next friend of the minor. O 32 r4 (1): Any person who
is of sound mind and has attained majority age may act as a next friend of a minor
or as his guardian ad litem provided that the interest of such person is not adverse
to that of the minor and that he is not in case of the next friend a defendant or in
case of a guardian ad litem a plaintiff.

Draft Notes on Civil Procedure 1 Muk 48 2010-2011 by Joseph Kyazze Esq.

 Who is a minor?; Kiddu Musisi Vs Iyamulemye and Another [1965] HCD 87; Since
the word minor is not anywhere defined in order 29, the court applied common law
and interpreted the word minor as being a person who has not attained the age of
21[ See Article 31 of the constitution on age of majority and Article of 274 on
interpretation of existing laws.]

 Samwiri lyamulenge vs Jovana’s Nyirakamarande 1995] IV KALR 16 – suit by a

minor 0 the issue of whether a married woman aged 20 years was a minor required
to sue through a next friend for purpose of divorce.

 Consent of the Guardian – O 32 R 4(3): No person shall be appointed as a guardian

ad litem without his consent.

 Person capable of being next friend: Any adult person of sound mind within the
jurisdiction whose interest is not adverse to that of the minor or is not a defendant
or plaintiff in the case involving the minor may be eligible to act as a next friend. S.
Wasswa & Anor. V Daniel Sentenza (1977) HCB 88; that O.29 provides for the
removal of a next friend whose interest is shown to be adverse to that of the person
of unsound mind. The court therefore ordered the next friend to cease acting as
next friend upon evidence that his interests were adverse to the person of unsound
mind.[See O.32 r.4(1)]

 Preference will be given to the father or mother or guardian. Some other of the
relatives or connections of the minor or their nominees may qualify but they must
be substantial and proper persons.

 Can a minor sue as a Pauper? A minor can sue by a next friend with a character of
a pauper but only upon strict proof that he could not obtain a more substantial next
friend. If a minor can procure a solvent person willing to act as a next friend, an
insolvent next friend may be removed and the proceedings stayed until another is
appointed.

Draft Notes on Civil Procedure 1 Muk 49 2010-2011 by Joseph Kyazze Esq.

 Legal effect of absence of a next friend:, O. 32 r 2: if a minor is made a plaintiff
without a next friend, the proceedings may be set aside and the plaintiff’s solicitors
may be ordered to pay costs to the defendant in that suit. This principle too applies
when the minor is made a co-plaintiff without a next friend other wise the minor’s
solicitors may be ordered to pay the defendant the costs accessioned by the
misjoinder. Geihuge V Gibbs [1897] ICH 479. This was an action instituted in court
without the knowledge of the solicitors that a person joined as co-plaintiff was a
minor at the commencement of the suit. Held: That when an action is brought in
the name of the person as plaintiff without his authority and he subsequently
repudiates the action, the defendant on an application may obtain an order for
payment of costs by the solicitor who instituted the suit. In a case where an infant
was joined as a co-plaintiff by solicitors on assumption that he was of full age, they
were liable to pay the costs of the suit when the minor applied for his name to be
struck out.

 Lui Bagyenda & Anor vs loyce Kikubanja Bagyenda 1994] IV KALR 46; suit by a
minor – next friend , question whether a 19 year old co- applicant for the grant of
letters of administration without a next friend rendered the application a nullity
even if the other joint applicant was an adult.


 Hajji Sabiti Musoke Vs Uganda L.M [1978] HCB 129. During the trial it came out
that the 3rd Plaintiff was a minor and counsel for the defendant applied that the
suit be taken out of the file under O 32, r1. Held: That the proceedings were
irregular and could only continue if the plaint was amended to include the next
friend. A plaint by a minor without authority of the next friend is improper and must
be taken off the file but can be re-filed in accordance with the law.

 Kabatoro Vs Namatovu (1975) HCB 159; A plaint instituted by a minor without a

next friend as required by law. Held; that Order 32 r 3 is mandatory and requires

Draft Notes on Civil Procedure 1 Muk 50 2010-2011 by Joseph Kyazze Esq.

 that a suit brought/instituted by a minor without attaching a next friend’s authority
is incompetent and should be struck out. When a suit is instituted by a minor
without a next friend, the plaint is to be taken off the file. [Jingo Vs Kabagiza (1974)
HCB 294 and Kiralire V Salongo MB 74 of 1964

 Effect of non-compliance, whether it render the suit liable to be dismissed: Rules 1

and 2 of O 32 are only directory and not mandatory and non-compliance with them
does not automatically lead to the throwing out of the suit. Court has discretion
under r 2(1) to either take the plaintiff off the file or make such other order in the
premises as it may deem fit e.g. amendment to include the next friend. Musoke Vs
Uganda Co-op. Savings [1978] HCB 189.

 Guardian ad Litem; When the defendant is a minor court shall appoint a guardian
Ad litem. The rule is mandatory and a decree obtained without the appointment of a
guardian is a nullity. Credit finance Corporation Ltd Vs Kamali [1965] EA 545 (K).
Suit against a minor with no guardian ad litem appointed where decree was made
thereof was a nullity.

 Objection under O.34 r 3 ; Held: That without a qualified guardian ad litem a minor
can become a party to a suit and any decree exparte without such appointment is a
nullity.

 Kiddu Musisi Vs Iyamulemye and Another [1965] HCD 87.; Held: All suits brought
against a minor must be through a guardian ad litem i.e. a guardian appointed by
court for the purpose of the suit.

 Re Brockle Bank: A man cannot be allowed to escape from payment of a debt

because the person to whom it is due is an infant. In such a case the debtor will be
entitled to cost if he asked for it. However an adult person named on security for
costs of a summons. But he makes no such an application but allows the
summons to proceed in the ordinary way.

Draft Notes on Civil Procedure 1 Muk 51 2010-2011 by Joseph Kyazze Esq.

 Removal of a Guardian: a guardian whose interest is adverse to that of the person
of unsound mind may be removed under O. 32 r 9. Wasswa Vs Senteza [1977] HCB
88.

 NB: another next friend may be appointed where one is incompetent. No two or
more guardians are allowed for one minor, O. 29 r 4 (2). A guardian appointed by
court shall not be replaced unless court considers it in the best interest of the
minor.

 Suits without a next friend:RE Brockle bank (1877) 6 Ch 358: 360. An infant sued by
means of a debtor summons on his own name and later applied for leave to add on
the action by a next friend; Held: That an infant may sue a debtor’s summons in his
own names. James L. J. an infant to whom a debt is due has the same rights as
any other person and he is entitled to enforce the payment of it by means of a
debtor’s summons and proceedings of bankruptcy thereon.

 The next friend is an officer of court appointed to look after the minor’s interest and
has the conduct of the proceedings in his hands but he is not actually a party to the
proceedings and is not, as next friend entitled to apply them in person.

 Retirement of a next friend; O.32 r 8: A next friend may not retire without showing
that it is for the minor’s benefit that another next friend should be substituted for
him and that his proposed successor is a fit and proper person and is not
interested in the subject of the proceedings. Substitution of a next friend: Where a
person has been or is next friend of a minor in any proceedings no other person is
entitled to act as the minor’s next friend in those proceedings unless the court
makes an order appointing him as next friend for substitution of a person
previously so acting.

 See; Representation of minor by next friend or guardian for the suit. O.32 r 5 (1) and

Draft Notes on Civil Procedure 1 Muk 52 2010-2011 by Joseph Kyazze Esq.

 (2): Every application to court on behalf of the minor other than an application
under substitution rule shall be made by his next friend or by his guardian ad litem.

 Agreements on compromise by next friend or guardian for the suit, O 32 r 6.

Receipt by next friend or guardian for the suit of property under decree for minor, O
32 r 6.

 Stay of proceedings for removal of a next friend O. 32 r 10.

 Retirement, Removal or death of a guardian for the suit, O32 r 11. Infant plaintiff
attaining full age, O 32 r 12.

 Application of rules relating to minors to persons of unsound mind; O.32 r.15;

Wasswa & Anor. V Daniel Sentenza (1977) HCB 88[ see above]

Existence of a Substituting Suit:

Joinder can only be allowed where there is a valid subsisting suit.
Parther Vs Mpekma:
Held: That a suit instituted in the names of a dead person is a nullity and O.1 r
10 can only apply if the person was living at the time otherwise this suit was a
nullity.
Sajjabi Vs Timber Manufacturing Ltd:
Held: That a non existent person can not be sued and no amendment can be
made under O.1 r 10 because the rule applies only where the suit is in existence.
Intervention by Persons:
No parties to the Suit:
Where as only parties to a suit can take part, the laws allows intervention by
persons not party to suits in specific situations.
Substitution of Parties:
O.1 r 10 (2) empowers court to strike out parties who have been improperly
joined whether as plaintiffs or defendants and to substitute those persons who

Draft Notes on Civil Procedure 1 Muk 53 2010-2011 by Joseph Kyazze Esq.

ought to have been joined or whose presence is necessary for the effective and
complete adjudicating all the questions involved in the suit.
………………..Vs West Mengo [1980] HCB 60;
Held: That a defendant can apply under O.1 r 10 to join a party to the suit as a
co-plaintiff by availing himself with the precision of the rule, but the court on its
motion can join any party to the suit which it deems would facilitate effectual
and complete determination of the suit.

Draft Notes on Civil Procedure 1 Muk 54 2010-2011 by Joseph Kyazze Esq.

 JOINDER OF PARTIES:
All persons who are parties may be joined on one side as parties. O.1 r 1
provides that persons can be joined in one suit as in whom any right of relief in
respect of or arising out of the same act or transaction or series of acts or
transactions is alleged to exist, whether jointly, severally, or in the alternative
where, if those persons had bought separate suits, any common question of law
or fact would arise.
Joinder of defendants:
O.1 r 3 provides that all parties can be joined as defendant against whom any
right to relief in respect of or arising out of the same act or transaction or series
of acts or transactions is alleged to exist, whether jointly, severally or in the
alternative where, if separate suits were brought against those persons, any
common question of law or fact would arise. Example, joint owners of
properties.
 Fatuma Osman Hussei vs Mahendra Umadbai Patel 1995] KALR 29 . parties to
suit under ).1 r3 whether a person against whom the plaintiff has no claim and
does not desire to prosecute can be joined as a co-defendant .

 Barclays Bank Vs Patel [1959] EA 214: Plaintiff sued the defendant as guarantor
of an over draft to the company. Judgment was obtained against all the
defendant except the 3rd and 4th defendants. The 1st and 5th defendants wee parties
to the suit and the 1st, 2nd, 4th, 6th and 3rd defendants objected as the suit was not
maintainable s the plaintiff had improperly joined different defendants in one
action.Held: That different causes of action accrued on different dates against
different defendant. The circumstances of liability were separate and distinct. The
two causes of action could not be disposed of together. That there was a
common question of law as the guarantees being identical in form but there was
no common question of fact in the circumstances in which the guarantees’ right
to relief arose are different and binding different defendants. All conditions must
be fulfilled in order to apply O.1 r 3.

 Karimani Vs Desai: A landlord claimed in one suit to eject two tenants from
different portions of the same property. Held; That no right to relief arose against
the tenants until they had separately ignored the notices to quit. Those were
separate and distinct acts.

 Bank of India Limited Vs Shah: The plaintiff Bank sued 5 defendants jointly and
severally s guarantors of monies lent on an overdraft to a company’s claim. The
2nd, 3rd and 5th defendants submitted to judgment but the 4th defendant raised an
objection that there was a misjoinder of parties and causes of action under O.1 r
3.Held: That O.1 r3 applied because though the plaintiff had separate remedies
against the defendants, the causes of action arose from the same transaction
namely, the company’s overdraft raised some common question of law and fact
against each of them.

Draft Notes on Civil Procedure 1 Muk 55 2010-2011 by Joseph Kyazze Esq.

 O.T. Company Ltd Vs African Produce Agency Ltd and Another: The 1st Defendant
agreed to transport for the plaintiff 400 tones of kerosene from Kisumu to
Kampala but owing to accident between the 1st defendant’s bay and the 2nd
defendant’s bus, 367 tones were damages. The plaintiff sued the 1st defendant’s
nd rd
in negligence and joined the 2 defendant by 3 party notice.Held: That the case
of the 1st defendant collision was due solely to the negligence of the driver of the
nd
2 defendant’s bus, there was thus a question to be decided between the
nd
defendants which could not be resolved if the 2 defendant was dismissed from
the action.

 Semakula Vs Musoke: The plaintiff sued the defendant for trespass and
conversion of his property as well as that of his wife and children. Counsel
argued that he should have included property belonging to his wife. Held: That
court found that the tort of trespass constitutes an inference with possession
with the personal property of the plaintiff and his family at the plaintiff’s house
and could only be said to have been in his legal possession at the time. That for
the plaintiff to sue the defendants jointly there must be a common question of
law or fact that could arise if separate suits were brought.

 Remedy for Misjoinder: The CPR, O.1 r 10 provides for amendment. Sub rule (1); if
the suit is in the name of a wrong person as plaintiff or when it is doubtful as
whether it is in the right names of the plaintiff the court may at any stage of the
suit if satisfied that the suit has been instituted by a bonafide mistake and it is
necessary for determination of the matter in question to do so, order any person
to be substituted or added. See Buteraba V Serwanga

 Barclays Bank Vs Patel: Held: That the plaintiff would be given leave to withdraw
the suit and institute a fresh one or suits as he chose against the defendants on
payment of the defendants costs. The plaint were not to be struck out as being
embarrassing. See Buteraba V Serwanga

 Joinder of Plaintiffs: See O.1 r 1: Buikwe Estate Coffee Ltd Vs Lutabi: At the
hearing, counsel for the defendant made two preliminary objections on point of
law that there was a misjoinder of parties and causes of action contrary to O.1 r 1,
O.2 r 2 and 3 (authority of advocate) and that the plaintiffs were not entitled to
join them.Held: That the right to relief existing in all 3 plaintiffs if proved by
evidence arose out of the same transaction, namely, invalid resolution of the
company which purported to oust the lawful directors and accordingly there had
been no misjoinder of parties and no misjoinder of causes of action.

 Joinder of Causes Action: Uganda Commercial Trading Co. ltd Vs Jinja Cash
Stores: Counsel raised a preliminary objection that the suit was not maintainable
as the plaintiff had improperly joined separate defendants and causes of action in
one suit. Held: That under the Bulk Sales Ordinance the plaintiff in his capacity as
a creditor of the 1st defendant was entitled to have any redress against the 2nd

Draft Notes on Civil Procedure 1 Muk 56 2010-2011 by Joseph Kyazze Esq.

 defendant as transferee of the lorries and a common question of law and fact
would have arisen if separate suits wee brought. There was no misjoinder of the
defendants or causes of action and the suit was maintainable.

 Yokana Kakire Vs Lunyo Estates Ltd: The eight (8) plaintiffs each of whom
claimed to be a tenant of the defendant company sued for alleged interference
with their rights of possession. The defendant contended that there was
misjoinder of parties and causes of action contrary to O.1 r 1, CPR. Held: that the
causes of action set out in the plaint did not arise out of the same act or
transaction. They were of wholly distinct and different acts of dispossession and
interference of rights of possession. There was no question of law or fact
common to the several plaintiffs and there was a misjoinder of plaintiffs and
causes of action.

 Stroud Vs Lawson:Held: That it is necessary that both conditions should b

fulfilled and that the right to relief alleged to exist in each plaintiff should be in
respect of or arise out the same transaction and also that there should be a
common question of law or fact in order that the case may be within the rule.

 Musitwa Kyazze Vs Eunice Busingye:

Held: That no suit should be dismissed for non joinder or misjoinder of parties
or causes of action.

Draft Notes on Civil Procedure 1 Muk 57 2010-2011 by Joseph Kyazze Esq.

 REPRESENTATIVE SUITS:
 O. 1 r 8 provides that when there are numerous persons having the same
interest one or more of such persons may with permission of the court sue or
be sued or may defend such suit on behalf of or for the benefit of persons
interested. Any person on whose behalf or benefit a suit is defended under the
rule may apply to be a party.

 Representative suits are instituted to avoid a multiplicity of legal proceedings

over the same subject matter where there are numerous individuals having the
same interest in the same subject matter. See S. Mwijakubi & Others V British
American Tobacco (U) Ltd HCT-00-CC-CS- 286-2005 See also Hermezdas
Mulindwa and Anor. V Stanbic Bank U LtdnHCT-00-CC-CS-0426-2004

 There must be a common interest/grievance and the relief claimed must be

beneficial to all. Read; See S. Mwijakubi & Others V British American Tobacco
(U) Ltd HCT-00-CC-CS- 286-2005; for the proposition that the basis of the
permission is not the exact number of the group of persons on whose behalf the
action is brought but the common interest between all of them

 Proceedings involving Associations, clubs or other unincorporated entities that

have no capacity to sue as such; These are suits brought against a person in a
representative capacity and those other members;

 The essence of a representative suit is to avoid the necessity for encumbering

the plaintiffs or the defendants with names of many persons and to avoid the
necessity for their personal service of proceedings and their personal
appearance; Hermezdas Mulindwa and Anor. V Stanbic Bank U
LtdnHCT-00-CC-CS-0426-2004

Preconditions to Representative Suits:

 Three conditions must exist; Smith Vs Cardiff Corporation: all members must
have a common interest, they must have a common grievance, and relief sought
must be beneficial to all them. See S. Mwijakubi & Others V British American
Tobacco (U) Ltd HCT-00-CC-CS- 286-2005

Draft Notes on Civil Procedure 1 Muk 58 2010-2011 by Joseph Kyazze Esq.

 The interested party must first apply for and should obtain leave of court to sue
in a representative capacity; Johnson Vs Moss: The plaintiff, a minor sued thru
a next friend for injuries sustained while in an incorporated club. He asked court
for permission to proceed against one member as representing others. Held:
That a person to bring a representative action, he must obtain leave of court to
do so. Paulo Kanyima-V-Rugoora (1982) HCB 33;

 The leave must be obtained before the filing of the suit in a representative
capacity. [See wording of order 1 r.8] Wariform V Standard Chartered Bank
Kenya Ltd (2003) 2 EA 701I

 As a matter of procedure, the court ought to insist on the permission prescribed

by the rules being obtained before a matter is allowed to be fought out in a
representative capacity; Hermezdas Mulindwa and Anor. V Stanbic Bank U
LtdnHCT-00-CC-CS-0426-2004; See S. Mwijakubi & Others V British American
Tobacco (U) Ltd HCT-00-CC-CS- 286-2005

 [That the application under O.1 r 8 and is by chamber summons with a valid
affidavit, summary of evidence and list of persons intended to be represented.
Rwanyarare James V AG [1997] VI KALR 61

 The applicant is required to attach a list of those sought to be represented to the

application for leave. Those represented must have signed against their
respective names as a sign of consent to be represented. Sonko Vs Haruna:
Held: One (representative) must have a list of those they are representing with
their signatures. Rwanyarare James V AG [1997] VI KALR 61; See S. Mwijakubi
& Others V British American Tobacco (U) Ltd HCT-00-CC-CS- 286-2005

 The application is heard by a registrar of the high court, under powers vested by
virtue of Practice Direction No. 1/2002.

 The Notice of the order granting the leave and the list must after the grant be
advertised in a newspaper. This is a mandatory requirement; See Tarloghan
Singh V Jaspal Phaguda & Others [1997-2001] UCL 408; Rwanyarare James V
AG [1997] VI KALR 61

 The representative order and the list of those represented together with the
notice of advertisement must be annexed to the plaint; Hermezdas Mulindwa
and Anor. V Stanbic Bank U LtdnHCT-00-CC-CS-0426-2004

 Where a suit is filed in a representative capacity without prior leave of court, the
suit is a nullity and should be struck out; Paul Kanyima Vs Rugoora: The plaintiff
a member of an unregistered society sued the defendant on his behalf and on
behalf of his fellow members for trespass to land. A preliminary objection was
raised. Court found on the fact that this was a representative suit where the

Draft Notes on Civil Procedure 1 Muk 59 2010-2011 by Joseph Kyazze Esq.

 plaintiff had not obtained leave of court to sue under O.1 r 8, CPR. Held: That
this being a representative suit it was mandatory under O.1 r 8 of the CPR for
the plaintiff to obtain leave of court before filing it and a suit that is brought
under without leave of court is incompetent an can not be sustained but should
be struck out.

 The requirement to obtain prior leave of court can not be waived; Makula
International Vs Cardianl Nsubuga: The case concerned a breach of contract
between the plaintiff and the defendant Catholic Centre Association to print T.
Shirts with a Centenary emblem at a consideration of the assignment a
commission of 10%. There was a breach as a result of which the plaintiff sued.
The suit was brought against Cardinal Nsubuga and one Father Kyeyune. On the
same day, an application to bring a representative action against the defendant
was instituted and this was heard a week later. The defendant sought to strike
out the plaint on grounds among others that the suit had been granted by court
before the representative order. Held: That court ought to insist in all cases on
its permission which is the requirement under O.1 r 8 which can not be ignored
hence the present suit was brought prematurely.

 The rationale for representative suits is avoidance of a multiplicity of suits;

Sonko and Another Vs Haruna Serwanga: The plaintiffs sued in a representative
capacity for 21 plaintiffs without obtaining permission of court to do so. A
preliminary objection to the effect was raised pursuant to O.1 r8. Held: That O.1
r 8 allows representative suits as a matter of convenience to avoid the necessity
for encumbering the plaintiff or defendant with the names of many persons and
to avoid the necessity of personal service of proceedings and their personal
appearance. See S. Mwijakubi & Others V British American Tobacco (U) Ltd
HCT-00-CC-CS- 286-2005

 Representative suits are more relevant where there are numerous persons
claiming the same relief; Sonko and Another Vs Haruna Serwanga:That persons
having the same rights of relief arising out of the same act or transaction could
elect whether to proceed under O.1 r8 [to be joined as co- plaintiffs or if they are
numerous, they apply to court for permission to sue by a representative(s)
under O.1r8 (1). That the plaintiff having been elected to in a representative
capacity should have proceeded under O.1 r 8 and ought to have sought the
permission of court to sue on behalf of the 21 unnamed persons hence the suit
would be dismissed.

 Inapplicable to public interest litigation suits; see Article 50 of the Constitution;

TEAN V-A.G/NEMA Misc. Application No.39 Of 2001; BATU-V- TEAN Civil
Application No.27 Of 2003; Hajji Badru Wegulo and 2ors V AG [1993] 111 KALR

 Levis Vs Daily Telegraph: Held: That co-plaintiffs in a consolidated action wee

not entitled to separate legal representation without leave of court so that the
action as it existed was not properly constituted and there being no reason for

Draft Notes on Civil Procedure 1 Muk 60 2010-2011 by Joseph Kyazze Esq.

granting leave for separate representation the action could not proceed for trial
until a singly solution was placed on record for both plaintiffs.

THIRD PARTY PROCEEDINGS;

 The general scope of 3rd party procedure is to deal with cases applying all
disputes arising out of transactions between the plaintiffs and defendant
and third party to try and settle them in one action.

 The law is that in order that a third party be lawfully joined, the subject
matter between the third party and the defendant must be the same as the
subject matter between the plaintiff and the defendant and the original
cause of action must be the same; M/S Panyahululu Co. Ltd V M/s New
Ocean Transporters Co Ltd. and M/s Sofitra Ltd and Anor.
HCT-00-CC-0523-2006

 The defendant should have a direct right of indemnity as such, which right
should have, generally if not always arisen from a contract express or
implied. D.S.S Motors Ltd V Afri Tours and Travel Ltd
HCT-00-CC-CS-0012-2003

 The right to indemnity exists where the relationship between the parties is
such that in law and in equity, there is an obligation upon the one party to
indemnify the other. There are cases in which the state of circumstances is
such that the law attaches legal or equitable duty to indemnify arising from
an assumed promise by a person to do that which under the circumstances
he ought to do. Eastern Shipping Co. Ltd V Quah Beng Kee (1) [1924] AC 177
M/S Panyahululu Co. Ltd V M/s New Ocean Transporters Co Ltd. and M/s
Sofitra Ltd and Anor. HCT-00-CC-0523-2006

 Where the defendant is sued and he thinks another person is responsible, he

may sue the 3rd party by bringing 3rd party proceedings. Ronald Kayara vs
Hassan Ali Ahmed 1993] v KALR 63 – question of whether a defendant
should apply for a third party notice.

 NB: There is in effect a separate action between the defendant and 3rd party
but for convenience, the 3rd party proceedings are handled in the same
proceedings as the main proceedings. Barclays Bank VS Thom: Held: That
the purpose and effect of 3rd party proceedings is to make that party bound
by decisions made between the plaintiff and defendant to save extra
expenses and time which will be caused by two separate actions.

 The object of 3rd party proceedings is to prevent a multiplicity of actins and

the procedure is limited to a claim of indemnity and contribution; Sango Bay
V Dresdenor Bank: Held: That the object of 3rd party proceedings is to

Draft Notes on Civil Procedure 1 Muk 61 2010-2011 by Joseph Kyazze Esq.

 prevent a multiplicity of actins and the procedure is limited to a claim of
indemnity and contribution. Third party proceedings may be instituted by the
court. See O.1 r 14 providing that when a defendant claims to be entitled to
contribution or indemnity over or against any person not a party to the suit,
he may issued a notice to 3rd party with leave of court. This notice has to be
rd
served with the plaint on to the 3 party.
rd
 The Rules regarding service must be observed under O.5 and 3 party
notice must be accompanied with a plaint; Obango Vs UTC [1975] HCB, 108:
In case of an accident if an employee of the plaintiff had had an accident
and he brought an action against the plaintiff, counsel for the plaintiff and
counsel for the employee allegedly entered a consent judgment for the
employee for a sum of 300,000=. Thereafter counsel for the employee
attached the furniture belonging to the plaintiff and it was discovered that
the consent judgment was false, the defendant successfully applied for 3rd
party notice to be issued against counsel for the employee. At the hearing of
the third party notice counsel was conspicuously absent and the defendant
prayed that court enters judgment against the 3rd party in accordance with
O.1 r 16. Held: That since the 3rd party had ignored the summons to court,
this was a proper case to enter judgment against him and that since it was a
ficticious consent judgment entered for counsel for the employee had put
the defendant into expenses, he was ordered to indemnify the defendant for
the expense.

 Transami (U) Ltd vs Trans ocean (U) ltd 1994 ] 1 KALR 175 whether third
party was liable to indemnify the defendant .

 Scope of Third Party Proceedings: Total Oil Products Ltd Vs W. Malu: The
Plaintiff filed a suit against the defendants trading as Ken Service Station.
The 2nd, 3rd and 4th defendants then took 3rd party proceedings against the 1st
defendant claiming indemnity on ground that they had withdrawn from the
partnership at the relevant time and the debt was incurred by the 1st
defendant without lawful authority. The 1st defendant counterclaimed a sum
of money and the issue was whether 3rd party proceedings extended to a
counter claim and set off. Held: That 3rd party proceedings in Kenya is
narrow in scope than in England and the only question which can be tried in
such proceedings is as to the liability of 3rd party to make contribution or
indemnity claimed in the whole or in part and any claim arising by way of set
off or counterclaim is excluded. Macheans Vs Cycles (1902) 1ch 287:

 English scope of 3rd party proceedings: Cozens hardy L.J.

Birmingham-V-Londan (1887) 34 Ch.D 216; That the act treats the 3rd party
procedure as analogous to a cause instituted by the defendant as against
the 3rd party with the consequence that the defendant may defend himself in
any way in which any defendant in an action at the suit of a plaintiff may

Draft Notes on Civil Procedure 1 Muk 62 2010-2011 by Joseph Kyazze Esq.

 defend himself among which modes of defence is indicated the mode of a
counterclaim. CF Total Oil-V- William (1966) EA 165/4 M/S Panyahululu Co.
Ltd V M/s New Ocean Transporters Co Ltd. and M/s Sofitra Ltd and Anor.
HCT-00-CC-0523-2006

 The plaintiff and defendant must be the same as the subject matter between
the defendant and 3rd party and the original cause of action must be the
same. Walusimbi Vs A-G: The plaintiff sued the A.G. claiming damages for
rd
negligence. The A.G. applied exparte for a 3 party notice to be issued and
served on to one M pursuant to O.1 r 14, CPR. M also implicated Y and the
A.G. applied for and served the 3rd party notices on Y but counsel for Y
asked for 3rd party notices to be set aside on grounds that the cause of the
claim against Y was different from those between the plaintiff and
defendant.Held; That in order that a 3rd party to be lawfully found the subject
matter between the plaintiff and defendant must be the same as the subject
matter between the defendant and 3rd party and the original cause of action
must be the same. As the plaintiff was suing for negligence against the
defendant, the 3rd party notices alleging fraud should be set aside.

 Appearance of 3rd Parties: O.1 r 18 provides for appearance of 3rd parties for
directions. Where the 3rd party filed a defence the defendant who gave 3rd
party notice may apply to court for directions as to questions on how the
issues between him and the 3rd party are to be tried and the 1st question is
whether there is a question for trial between the 3rd party and defendant and
the onus is on the defendant to prove that there is a question of liability on
the defendant by the 3rd party [defendant admits that he is liable but it is the
3rd party to pay].

Inter Pleader Proceedings:

 Proceedings refer to situation where tow or more persons claims or finds in the
hands of a 3rd person and he has no claim to it but is ignorant as to which of the
parties is rightly entitled to it and such a person may take out inter pleader
proceedings.

 S. 59 CPA provides that where two or more persons claim adversely to or another
the same debt, sum of money or other property movable or immovable from
another person who claims no interest therein other than for searches and costs
and who is ready to pay or deliver it to the rightful defendant, such other person
may institute a suit of inter pleader all claimants.

 Conditions:The applicant must satisfy court (in an affidavit) that:

- He claims no interest in the subject matter
- There is no collusion between the applicant and any of the claimants
- That the applicant is wiling to pay the value of the subject matter in court.

Draft Notes on Civil Procedure 1 Muk 63 2010-2011 by Joseph Kyazze Esq.

  Re; Messrs Katende Sempebwa Experts 1996 ] 1 KARL 48 originating
inter-pleader summons S (59) CPA the conditions for issue of summons in inter
pleader proceedings. See; Standard Chartered Bank (U) Ltd V Gapco U Ltd and
Barclays Bank PLC HCT-00-CC-MA-0049-2007

 Famous Cycle Agency Ltd and Ors vs Manshulular Ranji and Ors 1994 V KALR 58
– inter pleader adverse claims for rent by different landlords, whether procedure
was by inter – pleader.

 Pending Suits: Sergeant V Gautama (1968) EA 338; The applicant was plaintiff in a
suit as part of which 100= was paid to the respondent who was one of the
applicant’s advocates. The payment was made by one of the other parties to the
suit by a cheque drawn by a company of which the party was a company director.
Thereafter disputes arose as to the term of office and conditions under which the
money should be paid. After much correspondences applicant brought a suit
against the respondent claiming the money. The executors of the estate of the
director claimed to have paid the money to the respondent who denied it. The
respondent brought an inter pleader application.Held: That this was a proper case
for inter pleader proceedings, there being adverse claims to the same sum of
money. Expert and Misery Docks [1981) I KB

 Where there is a pending suit, such suit must be dealing with the same subject
matter as claimed in the interpleader application; Standard Chartered Bank (U) Ltd
V Gapco U Ltd and Barclays Bank PLC HCT-00-CC-MA-0049-2007

 Procedure for Inter Pleader Proceedings:O. 34 r 1 provided that inter pleader

proceedings may be instituted where no suit is pending by originating summons
and where there is a suit, by motion. Standard Chartered Bank (U) Ltd V Gapco U
Ltd and Barclays Bank PLC HCT-00-CC-MA-0049-2007

AMICUS CURIAE
 This means a friend of court and it involves a non party to the suit, giving information
upon a matter of law to solve a matter on which the court may be doubtful or
mistaken. The amicus curies must not have an interest in the suit. Edward Fredrick
Sempebwa v AG 1992] VI 161 conditions for inviting an amicus curiae

 Amicus curiae is one who a bystander, where a judge is doubtful or mistaken in a

matter of law, may inform court Re Nakivubo Chemists [1977] HCB 311.

 An amicus curiae must be invited by the court; Attorney General Vs Silver Springs
Hotel Ltd and Others: Mr. Kayondo wanted to be amicus curiae on grounds that his
clients instant were involved in the case and by being notified of the hearing date by
the registrar he was invited. Held: Amicus Curiae is invited by court and he should be a
person with out an interest in the case. Mr. Kayondo was not invited and was an
interested party who did not qualify.

Draft Notes on Civil Procedure 1 Muk 64 2010-2011 by Joseph Kyazze Esq.

 Term implies a friendly intervention of counsel to remind the court of some matter of
law which has escaped its notice in regard of which it is in danger if being wrong; Grice
V R [1957] 11 DCR 699

 At common law, a court has inherent power to invite an amicus curiae when it
considers it desirable. Such person ought not to be interested in the matter at hand
except , perhaps the AG Re Nakivubo Chemists [1977] HCB 311.

 A party with an interest in the subject matter of the suit cant be an amicus curiae but
may either apply to be joined as a party or stay in court watching brief Re Nakivubo
Chemists [1977] HCB 311

 The court has a wide discretion to ask for assistance of an amicus curiae if it
considers of justice would be served Dritoo Vs West Nile District Administration: The
plaintiff had been unlawfully arrested and incarcerated by the Defendant’s policemen.
The defendant denied responsibility In the proceedings the court called in the Solicitor
General to stand in Amicus Curiae as he would help court come to a correct and just
decision.

 Kayondo Kakungulu Vs Kakooza: In a suit to contest the administration of the estate of

the late Badru Kakungulu, the Administrator General was called in stand in as Amicus
Curiae.

PLEADINGS:
Definition of a pleading
 A pleading is defined as including any petition or summons and also
includes the statements in writing of a claim or demand of any plaintiff and
of any defence of any defendant thereto and of the reply of the plaintiff to
any defence or counter-claim of the defendant; Read S. 2 CPA: and Reliable
Trustees Ltd V George Sembeguya HCCS No. 601/92 for the definition of
pleadings;

 Note; In view of Order 6 r.2 it is now a requirement that the pleadings should

Draft Notes on Civil Procedure 1 Muk 65 2010-2011 by Joseph Kyazze Esq.

 be accompanied by the summary of evidence, list of documents, witnesses
and authorities; Eastern & Southern African Trade & Anor vs. Hassan
Basajjabalaba & Anor HCT 00-CC- CS 512/2006 – A plaint must be
accompanied by a summary of evidence, list of documents and witness as
per O. 6 r2; see implications of non compliance

 The issue is whether this requirement is mandatory. See Sule Pharmacy

Limited V The Registered Trustees of the Khoja Shia Itana Shari Jamat
HCMA No. 147 of 1999.

Plaintiff’s Pleadings:
 The Plaintiff is required to serve summons together with plaint and
annextures thereto upon the defendant requiring the defendant to file a
Written Statement of Defence within 15 days from the service. (O.5 r 1and
this constitutes the Defendant’s pleadings. See Mark Graves V Balton (U)
HCMA No.158 of 2008 for time within which a defence should be filed; See
also Rule 11 of the Government Proceedings (Civil Procedure) Rules .; AG is
given 30 days within which to file a defence.

 Plaintiff is required to serve the summons and plaint within 21 days from the
date of issue unless the time is extended on application of such plaintiff;
Read; O.5 r1(3) Century Enterprises Limited V Green land Bank ( In
Liquidation) HCT-00-CC-CS-0877-2004 Elite International Tobacco (U) Ltd V
Marchfair Stationary (U) Ltd [1997-2000] UCLR 253.

General Objects of Pleadings:

 Knowledge of the parties as to the exact matter in dispute.
 Knowledge of what exactly is to be proved at the trial so as to reduce
cost and time of proving unnecessary facts and surprises at the trial.
 Determination of the appropriate mode of trial on questions of fact or

Draft Notes on Civil Procedure 1 Muk 66 2010-2011 by Joseph Kyazze Esq.

 law to be decided by court.
 Ensuring that parties and succession do not contest similar issues.
The Function, Rationale and relevancy of pleadings for parties and Court
 The Plaintiff is entitled to know the defence to the claim so as to reply to the
disputed statements by the defendant, establish facts conceded and facts
disputed to avoid procuring evidence of unnecessary facts. See Karokora Ag
J in David Acar & 3 Others V Alfred Acar-Aliro (1982) HCB 100

 The purpose of pleadings was to allow the parties an opportunity to prepare

their case adequately Mbarara Coffee Curing Vs Grind lays Bank Ug. Ltd

 That the purpose of pleadings is to let the other party know the outcome of
the adversary’s case to prepare a defence. Each of the alternate pleadings
must show this. Painetto Mubiru Vs UCB (1971) HCB 144:

 The function of pleadings is to give a fair notice of the case, which has to be
met so that the opposing party may direct his evidence to the issue
disclosed by them. Esso petroleum Co. Ltd vs. South Port Corp (1956) AC
218

 It is trite that the object of pleadings is to bring the parties to a clean issue
and delimit the same so that both parties know before hand the real issue for
determination at the trial In Kahwa & Anor vs. UTC [1978] HCB 318; See
Motorcar (U) LTD V AG HCT-00-CC-CS No. 0638/05

 Ascertainment with precision matters in contest and matters admitted to

arrive at clean issues for determination by court. H.J Stanley & sons Ltd vs
Akberali Salah [1963] EA 574-

 Rules of pleadings have been evolved in general interest so that all parties

Draft Notes on Civil Procedure 1 Muk 67 2010-2011 by Joseph Kyazze Esq.

 may know the allegations they have to meet and that issues may be framed
and justice done without in due delay see Kebirungi Justine vs M/s Road
Trainers Ltd HCMA No. 285/2003[ Note decision of the High Court rejecting
a plaint for want of disclosure of a cause of action was over ruled by the
Court of Appeal but principle is still good law]

Cardinal rule and Justifications for Exchange pleadings:

 Exchange of Pleadings: Pleadings must be exchanged in accordance with
the CPR,( O.5 and O.8 r.18 CPR] the purpose being comparison of parties to
clearly show material facts and immaterial facts and insisting that the
opponent expressly admits or denies material facts alleged against him. The
law requires each party to state his own case and answers before the
hearing and this is what constitutes pleadings.

 The cardinal rule in pleadings is that the allegations must be material and
thus only a summarized statement of material facts on which the party
pleading relies for his claim or defence as the case may be, but not evidence
by which those parts are to be proved.
 Kasule Vs Makere University {1975] HCB 376: The plaintiff was assaulted
by the MUK askaris and in a suit against the university he was awarded
exemplary damages yet he had not prayed for it in the pleadings. Held:
Per curium: The system of pleadings is designed not only to define with
clarity and precision the issues on questions which were in dispute
between the parties but also to fulfil some of the fundamental principles
of natural justice. The aim that each party should have a fair and due
notice of what case he has to make, that each party should have a
reasonable opportunity of answering the claim or defence of his
opponent and that each party should have a reasonable opportunity of
preparing and presenting his case on the basis of issues disclosed in the
pleadings and no others. Exemplary damages, not pleaded were wrongly

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 awarded.

 The essence of pleadings is to give a fair notice of the case which has to
be met so that the opposing party may direct his evidence to the issues
disclosed by them Nile Breweries Ltd vs Bruno Ozinga T/A Nebbi Boss
stores HCT 00-CC-CS – 580 / 2006

 That the purpose of pleadings was to allow the parties an opportunity to

prepare their case adequately. Mbarara Coffee Curing Vs Grind lays Bank
Ug. Ltd [1975] HCB 57Held: Painetto Mubiru Vs UCB (1971) HCB 144:
Held: That the purpose of pleadings is to let the other party know the
outcome of the adversary’s case to prepare a defence. Each of the
alternate pleadings must show this. See Order 6 r(2)

 It is trite that the object of pleadings is to bring the parties to clear issues
and delimit the same so that both parties know before hand the real
issues for determination at the trial See Motorcar (U) LTD V AG
HCT-00-CC-CS No. 0638/05 ; See also; Kahwa & Anor vs. UTC [1978]
HCB 318

Exchange of Pleadings and Closure of Pleadings

 The plaintiff begins by presenting his claim and the defendant may put in his
written statement of defence, which besides answering the allegations of the
plaint may set up a counter-claim or set off. See O.4 r.1 and O.9 r.1 CPR
Read Nile Breweries V Bruno Ozunga T/A Nebbbi Boss Stores
HCT-00-CC-CS-0580-2006; for the meaning of a defence with a counter
claim

 The Plaintiff may reply within 15 days from the date of service of the written
statement of defence and thereafter, usually no further pleadings are made

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 save with leave of court but there may be some more joiners, some rebuttals
e.t.c. See O.8 r.18 (1) and (2)CPR on closure of pleadings; See also notes on
amendment of pleadings;

Nature of pleadings:
 Each of the pleadings must in turn either admit or deny the facts alleged in
the last preceding pleadings though it may allege additional facts and
admitted issues are extracted.
General Requisites for Pleadings:
Drafting of pleadings
 Pleadings should be drafted properly to contain all the material particulars
relating to the claim but not evidence or submissions otherwise incompetently
drafted pleadings may be struck out; Re Christine Namatovu Tebajjukira
(1992-93) HCB 85 it is now trite that the pleadings must only substantially
comply in form with the rules and relevant practice directions;
 Mohammad B. Kasasa vs. Jaspha Buyonga Sirasi Bwogi CACA No.
42/2009 C. Kitumba; JA; negligently drafting a plaint or incompetence is
doing so is not an excuse for a client to escape being bound by his
counsel’s action.

 See also See Tororo Cement Co. Ltd V Frokina International Ltd SCCA
No.2 of 2001 Tsekooko JSC; that Article 126 (2) (e) was not intended to
encourage sloppy drafting of pleadings.

 See also Take me Home Vs Apollo Construction on the consequences of

inadequate, sloppy and incompetent drafting of pleadings.

Language of Pleadings
 Generally pleadings must be written in the English language because it is the
official language; Article 6 of the Constitution. Agago Lanoro Vs Gollam

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 Hussein. The Plaintiff filed a suit by his advocate. The unrepresented defendant
filed a defence in a suit with a document, which was not translated, and counsel
was ignorant of the language. Held: It was held that English was the official
language of the court as per the Constitution and the magistrate ought to have
ordered for the translation of the document before accepting it in court. Read
also Kasaala Growers Co-operative Society V Kakooza Jonathan & Anor. SC
Civil Application No. 19/2010 on the language of court and documents executed
by illiterates.

Signing of Pleadings
 Pleadings must be signed either by counsel for the party or the party if such a
party draws the pleadings; 0.6.r 26 CPR; Read also Kasaala Growers
Co-operative Society V Kakooza Jonathan & Anor. SC Civil Application No.
19/2010 on the language of court and pleadings executed by illiterates.

 Mugabi vs. AG [1991] HCB 66; Pleadings drawn by counsel but signed by the
plaintiff; Held; The plaintiff signed as counsel for the plaintiff designedly to
flout the advocates act which was unethical on his part, which this court
cant condone.

 Habre International trading Co. (U) Ltd vs. KCC HCT 00-CV- CS 0763 /1994
documents prepared or filed by an advocate who did not have a valid
practicing certificate at the material time are invalid and of no legal effect on
the principle that courts will not condone or perpetuate illegalities.

 Prof Syed Hug v I.U.I.U SCCA No. 47/1995.There is no plaint properly filed
where it is neither signed by an advocate nor an agent nor plaintiff in his
personal capacity Documents drawn and filed by an advocate without a valid
practicing certificate during the grace period (Dec 31st to 1st march) are
deemed to be valid (provided the Practising Certificate was valid by 31st

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 December of the procedding year)

 Counsel signing the pleadings must have a right of audience before the
court where the suit is filed. Shokatalali Hussein Halji Vs Magnatal
Punshotan: The applicant’s case that Mr. Makumbya Musoke purported to
represent the plaintiff in his capacity as an advocate before the High Court.
Mr. Mukumbya had signed the plaint on behalf of the plaintiff before he
satisfied the statutory period of 9 months after enrolment before he could
stand before the high court. Held: That Mr. Makumbya Musoke had no right
of audience before the High Court when he lodged the plaint in the High
Court. According to the rules, 12 of the Advocates [Enrolment and
Certification] Rules he had no right of audience before High Court until after
the expiration of the period of nine months after enrolment. The plaint was
incompetent and struck out.

 Greenland Bank Ltd V H.K Enterprises Ltd & Others [1997-2000] UCLR 283;
All documents and instruments drawn and filed by the advocates with
respect to the suit, at a time when they had no practicing certificates were
invalid and of no legal effect.

 The registered Trustees of the Khoja vs. UMSC CACA No. 27/2002; The
name of the person signing the pleadings or who drew the pleadings must
be indicated. The omission of putting the name of the firm that drew the
document at the back does not amount to an irregularity which is incurable
by amendment

Pleadings and Material Facts

 Every Pleading must contain only a statement of concise form of the material
facts in a given format. They must allege with continuity proof of allegation.
Pleadings should not be by way of avoidance through partial acceptance. The

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 function of particulars is to carry into operation the overriding principle that the
litigation between the parties and the trial should be conducted fairly and openly
without surprise. Read Bisuti V Busoga District Admin [1971] 1 ULR 179

 Pleading to contain a Prima Facie Case: A pleading must contain a prima facie
case not based on anticipation of defences. Yafeesi Katimbo Vs Grind lays Bank
[supra] Held: That it was not well settled that so long as the statement of claim
on the particulars disclosed some cause of action or raised some question of
fact to be decided y a judge or jury the mere fact that the case was meant and
not likely to succeed was no ground for striking it out. The action was based on
the fact that civil ingredients were not pleaded thus there was no prima facie
case.

 A pleading must state facts which in the party’s opinion give him a right or
imposes on a defendant a duty and it remains to the judge to consider whether
on the facts proved, such rights and duties exist.

 Must state fact not law; must state material facts; must state facts not evidence
in proof thereof; must state facts in a summary form; Order 6, r1:

 Material facts are facts necessary for the founding of an action. Sempebwa Vs
Attorney General: Held: That materiality depends on the circumstances of each
case. They are facts, which must be proved for the plaintiff to succeed in his
action.

Certainty of Material facts:

 The object of pleadings is to ascertain definitely the question between parties
and this object can only be made achieved when each of the parties states his
case with precision. Tran slink (U) Ltd vs. Sojitra Cargo services Ltd & ors HCT
-00-CC-CS No. 0561 /2006. Held; the system of pleadings is necessary in
litigation. It operates to define and deliver with clarity and precision the real

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 matters in controversy between the parties upon which they can prepare and
present the respective cases and upon which the court will be called upon to
adjudicate between them. Inter freight forwarders (U) LTD vs. EADB [1994-94]
HCB 54.

 NB: If one can not be exact, be broad as the greater includes the lesser thus
each party is allowed to prove as much of the allegations as to make out a case.
Phillips Vs Phillips and Others (1878) 4 QB 127: Cotton L.J. That it is necessary
for the plaintiff to say that he claims as heir of so and so being a descendant of
one his ancestors in the ascending line. What particulars must be stated
depends on the facts of each case but it is absolutely essential that the
pleading not to be embarrassing to the defendant in the sense that it doesn’t
indicate the case which they have to meet when the case comes up for trial.

Relevancy and nature of particulars;

 Material particulars in an action founded on contract. Yafeesi Katimbo Vs Grind
lays Bank International (1973) HCB the Plaintiff sued the Defendant for specific
performance and in its WSD; the defendant raised a preliminary objection that
the plaint disclosed no cause of action since no consideration had been
pleaded. Whether Consideration, Offer and Acceptance in plaint had to be
averred: Held: That what particulars had to e stated in the plaint depended on
the facts of the case. Cause of action has been compendiously defined to mean
every fact, which would be necessary for the plaintiff to prove his case in order
to support his right to the judgment of court and it did not comprise every piece
of evidence which was necessary to prove each fact but every fact which was
necessary to be proved.

 .Held: That since the action was based on contract; consideration was a
material fact and had to be pleaded except in negotiable instruments when it is
proved. There was thus nothing in the pleadings to show that there was a
binding contract. None of the annextures showed that the offer had been

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 accepted. Acceptance was of the essence and had to be pleaded. The plaint did
not disclose a cause of action and would be struck out under O7 r 11 CPR.

Pleadings to Contain Facts Disclosing a Cause of Action:

 Cause of action has been defined as meaning simply a factual situation, the
existence of which entitles one person to obtain from the court a remedy against
another person. The phrase includes every fact which is material to be proved to
entitle a clamant to succeed and every fact which the defendant would have a right
to traverse. Halbury’s laws of England 4th edition (re-issue) Vol 37 P.24 –. See
Motorcar (U) LTD V AG HCT-00-CC-CS No. 0638/05;

 Read also Kanyeihamba JSC in AG V Major General David Tinyefuza Constitutional

Appeal No. 1 of 1997 for the proposition that a cause of action is every fact that it
would be necessary for the plaintiff to prove if traversed, in order to support his
right to the judgement of the court; See also Tsekooko JSC in Tororo Cement Co.
Ltd V Frokina International Ltd SCCA No. 2 of 2001

 In the case of Micro Finance support centre ltd versus Uganda Micro Entrepreneurs
Association Ltd HCT -00-CC-CS-1007-2004, Justice Bamwine Said: Halsbury’s Laws
of England, Vol.1 at P.6 defines a “ cause of action” as “ that particular act on the
part of the defendant which gives the plaintiff his cause of complaint.” it is, so to
say the fact or combination of facts which give s a person the right to judicial
redress or relief against another. The relational is that where there is a right
recognized by law, there also exists a corresponding remedy for its violation. Thus
0.6 r1 of the Civil Procedure Rules requires all pleadings generally to contain a brief
statement of the material facts on which he party pleading relies for claim or
defence. And under 0.7r1 (e), it is mandatory that a plaint contains the facts
constituting the cause of action and when it arose. See Discussion under plaint.

 In an action in Slander or libel, the plaintiff must set out all the words complained of
in the plaint:

Draft Notes on Civil Procedure 1 Muk 75 2010-2011 by Joseph Kyazze Esq.

  Erumiya Ebyatu Vs Gusbarita: [1985] HCB 63The Applicant sued the
respondent for slander before a magistrate’s court. The Pleadings stated
that the respondent was a wizard who used to bewitch people, the actual
words used by the applicant in the pleadings. Held: That in an action for
slander, the precise words used must be set out in the plaint or statement of
claim. The plaintiff must rely on the words set out in the plaint and not any
other expression. In this case there was no allegation in the plaint that the
applicant had said that the respondent had bewitched his deceased father,
thus there wee inconsistencies as between the pleadings and evidence in
court. Further held; In an action for slander the names of persons to whom
the words were uttered must be set out in the plaint other wise court will be
reluctant to consider any publication to a person not named in the pleadings.

 Samuel N. Nkaluba v Rev Daudi Kibirigi (1992) 2 ULR 49 , as regard libel , in

all suits for libel , the actual words, complained of should be set out in the
plaint.

 Where the cause of action is founded on a Statute; it is a requirement that the

statute be pleaded; Ali Mustafa Vs Sango Bus Co.: The plaintiff sued the defendant
for damages arising from the death of his brother allegedly knocked dead. Counsel
for the defendant objected on ground that the plaint disclosed no cause of action
as no statute was referred to [the Law Reform Miscellaneous Provisions Act]. As a
statutory claim the relevant statute is a material fact. Held: That O7 r 11(a) requires
a plaint to be rejected where it did not disclose a cause of action. Fatal accident
claims could only be brought or based upon the Law Reform (Miscellaneous
Provisions) Act and if the act was not pleaded, the plaint disclosed no cause of
action.
 Where the plaintiff relies on particular documents for his cause of action, the
statement of claim must allege the nature of deeds and documents upon which he
relies in deciding his title; Phillips Vs Phillips and Others (1878) 4 QB 127: In an

Draft Notes on Civil Procedure 1 Muk 76 2010-2011 by Joseph Kyazze Esq.

action for recovery of land on which the plaintiff has never been in possession, the
statement of claim must allege the nature of deeds and documents upon which he
relies in deciding his title and a general statement that by a party which documents
and crown grants in the possession of the defendants without further describing
them that the plaintiff is entitled to the land is embarrassing and liable to be struck
out in accordance with the rules.

Particulars to be specifically pleaded in some Cases:

 In all cases in which the party pleading relies on any misrepresentation, fraud,
breach of trust, wilful default or undue influence and in all other cases in which
particulars ay be necessary, such particulars with dates shall be stated in the
pleadings. Read 0.6 R.3;
 Read Hermesdas Mulindwa & Anor V Stanbic Bank (U) Ltd
HCT-00-CC-CS-0426-2004 for the proposition that where a party relies on
fraud, the particulars thereof must be given; Read Acar V Acar Aliro [1982]
HCB 60
 Nile Breweries Ltd V Bruno Onzunga T/A Nebbi Boss Stores
HCT-00-CC-CS-0580-2006; for the proposition that order 6.r.3 is mandatory
in so far as it requires particulars to be pleaded;
 J.L Okello Okello vs. UNEB SCCA No. 12/81 [1993] 11 KALR 133 SC; In every
suit where a party relies on misrepresentation, fraud, breach of trust etc and in
cases in which particulars must be stated. The rule is mandatory and non
compliance renders the suit liable to be struck out Buckley L.J. and Grant Vs
Hobbs: It is for reasons of practice and justice and convenience to require the
party to tell his opponent what he is coming to court to prove otherwise he may
not be allowed to rely on it.

 Particulars must be put under a definite heading. Okello Okello Vs UNEB SCCA
No.12 of 1987] It was held that O.6 r 2 is mandatory; dates must be given and
must always be under a definite heading titled particulars of fraud. That it is not

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 enough for a plaintiff in his statement of claim to allege merely that the
defendant acted negligently or fraudulently and thereby caused him damage.
Particulars must be given in the plaint showing precisely in what respect the
defendant was negligent. But See Tororo Cement Ltd V Frokina International Ltd
SCCA No.2 of 2002[LLB Box]
 Read; Okello Okello V UNEB Israel Kabwa V Martin Banoba Musiga [1996] II
KALR 109 SC
 Shiekh Kateregga V AG [1995] III KALR 143
 Sarah Nakabate Serubugo V Robina Nakidali [1994] VI KALR 24

 Mbarara Coffee Curing Vs Grindlays Bank (U) Ltd (1975) HCB 57 This
constituted to transfer of money on the plaintiff’s account without authority to
the other firm or persons. The Defendant raised two defences, one being a
denial of negligence and then the fact that the action was time barred by the
Limitation Act. The plaintiff in the course of the trial sought to rely on fraud as a
ground before extension of time, which he never pleaded. Held; That fraud was
a ground for a party to rely upon to extend the time of the limitation in the
Limitation Act. Where a party wished to rely on the fact that the defendant had
by fraud concealed the information-giving rise to the cause of action, the ground
must be made part of the pleadings and the particulars must be given;

 The plaintiff must first plead the particulars of negligence on which he relies
which will be binding on him, before he can shift the onus of disproving
negligence on to the defendant. Mukasa v Singh & ors 1969 EA 442; Compare;
Kebirungi Justine vs M/s Road Trainers Ltd HCMA No. 285/2003

 It is necessary to specifically state the particulars of negligence. See Tororo

Cement Co. Ltd V Frokina International Ltd SCCA No.2 of 2001 for the
proposition that it is common practice in cases of negligence for a party or his
advocate who intends to rely on negligence to plead particulars of negligence in
either within a paragraph or in more than one paragraph.

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 Patel Vs Fleet Transport Co. Held: An incorrect description of a particular fact
should not be fatal when the particulars of the claim have been given with
reasonable precision.

Other Formal Requirements Order 7 r. 1

 Pleadings must bear a title and the name of a court in which the pleadings are
filed. It must bear a case number and reference.
 It must state the parties; See the discussion on capacity to sue.

Documents to be annexed to the Pleadings

 A party intending to rely on a document as the foundation of the cause of action
is required to annex the document to the plaint, if in his possession, or power
and any other document should be included in the list of documents; See Order
7 r. 14 and Order 6 r.2 of the CPR; UNICOF Ltd vs Interfreight forward LTD HCCS
No 912/1996.Where a plaintiff sues upon a document be produced in court
when the plaint is presented and a copy filed with the plaint.

 The object of 0.7 r.14 is to provide against documents being set up after
institution of the suit. But where at the institution of the suit the existence of a
document is not doubt, the court should as a general rule admit the document in
evidence though it was not produced will the plaint or entered in the list of
documents annexed to the plaint Lukyamuzi v House of Tenant Agencies;(1983)
HCB 75 That the object of O.7 r 13 (Now 14) is to provide the against false
documents being set up after institution of the suit.

 Annexing a document to a pleading has the effect of incorporating the contents

of the document in the pleadings; Non- Performing Assets Recovery Trust V
Kapeeka Coffee Works Ltd SCCA No. 8 of 2001

 Parties are bound by their pleadings and must lead evidence consistent with
their pleadings; O.VI r. 6: No pleading shall not being a petition or application

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except by way of amendment raise any new ground or claim or contain any
allegation of fact inconsistent with the previous pleadings of the party pleading
the same.

 Talikuta V Nakendo (1979) HCB 275 Held: It is a statutory rule off pleadings
that a party is bound by his pleadings. But if particulars are given in wider
detail and what is proved varies from them in ways that are material, it
remains the duty of court to see that justice is done.
 Byabazaire Grace vs Mukwano Industries HCMA No. 909 /2002; A plaintiff is
bound by his /her pleadings and must establish the 1st essential element of a
cause of action Viz , a defined right enjoyed by the plaintiff . where a plaint
doest not disclose a cause of action, it must be rejected ant the requirement
is mandatory.
 Aisha Nantume vs Emmanuel Lukyamizi HC Appeal No. 011 / 2002; It is a
well known principle that a party to a suit is bound by his or her pleadings
 Interfrieght forwarders (U) Ltd VEADB SCCA No. 13/93; A party is expected
and is bound to prove the case as alleged by him and as covered in the
issues framed. He will not be allowed to succeed on a case not set up by
him and be allowed at the trial to change his case or set up a case
inconsistent with what is alleged in his pleadings except by way of
amendment of pleadings .
 H.J. Stanley and Sons Vs Alibhai: Held; Allegation that the hearing must not
be inconsistent with the pleadings.
 Talikuta Vs Nakendo: That it is a statutory rule of pleadings that a party is
bound by his pleadings.
 Opik Opoka Vs Muno Newspaper: At the hearing the defendant raised by the
objection not pleaded in the defence. Court found that since new facts were
raised by the objections, which were not pleaded, and accordingly
inconsistent in the pleadings put in general and the objections were
disallowed.

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 Daily VS John:Held: That O.6 r6 prohibits any party from raising in any
pleadings on ground of claim which is new or inconsistent with his previous
pleadings. That a remedy on the breach of O.6 r6 is an application to strike
out the offending pleading either before or at the hearing and that if a party
commits to take that course and contents the writs of the pleadings as they
stand. It may subsequently be contended that the court ought not to have
determined an issue which was open for decision of the pleading as they
stood although it would not have been so open had the pleadings been
attacked at the proper time.

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 THE PLAINT;
S. 19, CPA: All suits shall be commenced in the manner prescribed in the Civil
Procedure Rules, O.4 r 1. Every suit shall be instituted by presenting a plaint.
[compare other modes of commencing a suit under the rules; see discussion on
commencement of a suit]
Particulars in the Plaint: O.7 r1 provides for particulars in the plaint.
 The name and jurisdiction of the court. Mutongole Vs Nytil. (1971) HCB 114;
Counsel for the defendant contended that the plaint did not show any averment
as to jurisdiction of court. Held: That statement like, ‘this court has jurisdiction
over men’, surpluses that do not bestow jurisdiction upon land and it had no
magical qualities as long as the facts disclosed that a cause of action arose
within the jurisdiction. That each pleading should be carefully drafted and
treated individually and the advocates owned this much to the clients and court.
That particular case should be taken in drafting the pleadings; all the ‘is’ and
must be crossed as pleadings are the foundation of the court case. Once the
facts showing that the court had jurisdiction had been pleaded it was not
necessary to state that court had jurisdiction.

 CAT Bisuti vs. Busoga District Admin. (1971) ULR129: Under 0.7r.I (f), the
plaintiff had the obligation of pleading facts showing that the court had
jurisdiction and a mere assertion that the court had jurisdiction was not enough
the facts showing that the court had jurisdiction had been stated in the
amended plaint.

 Name, description and place work or residence of defendant so found as can be

ascertained.( See discussion on jurisdiction)

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 Name, description and place of plaintiff and address of service.[see importance]

 Where a plaintiff or defendant is a minor or a person of unsound mind, a

statement that effect.

 Facts constituting a cause of action and when it arose. Daniel Sempa Mbabali
Vs. W.K. Kizza and 4 Others (1985) HCB 46; the plaintiff sued the Defendants
st
for repossession of his land. In a WSD the 1 Defendant stated that the plaintiff
had not shown a clear cause of action in the plaint and therefore the plaint was
bad in law. Held: That if a plaint shows that the plaintiff enjoyed a right, that
right has been violated and that the defendant is liable, then a cause of action
has been disclosed. The Plaint alleged that the plaintiff was entitled to the land
in dispute and the defendants had improperly registered it in their names. This
was sufficient to show that he had a right in the property that had been violated
by the defendants and thus established a cause of action and hence the plaint
was not bad in law.

 That if a plaint shows that the plaintiff enjoyed a right that has been violated
and that the defendant is liable then a cause of action has been disclosed. Auto
Garage and Others Vs Motokov [1971 EA 514

 If plaint shows that the plaintiff enjoyed a right and the right has been violated
the defendant and the defendant is thus liable, a cause of action will have been
shown. Other wise if any of these essentials are missing; there is no cause of
action. Lake Motors Vs Overseas Motor Transport cited Kebirungi Justine v
Road Tainers Ltd & Ors [2008 ] HCB 72 CA

 Where a plaint discloses a cause of action but is deficient in particulars, the

plaint can be amended so as to include the particulars e.g. negligence. Tororo
cement Co. ltd v Frokina International Ltd SCCA No. 2/2001.

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 A cause of action means every fact which if traversed, I would be necessary for
the plaintiff to prove in order to support his right to a judgment of the court. It is
a bundle of facts which taken together with the law applicable to them gives the
plaintiff a right to relief against the defendant. Alhajji Nasser Ntege Ssebaggala
vs. the E.C and KCC Constitutional Petition No. 1/99

 In deciding whether a suit discloses a cause of action, one looks ordinarily only
at the plaint assuming that the facts alleged therein are true. Serapio Rukundo V
AG Constitutional Case No. 3/92.

 A cause of action means every fact, which if traversed would be necessary for
the plaintiff to prove in order to support his right to a judgment in court and is
said to be disclosed if three essential elements are pleaded and these include
the existence of the plaintiff’s rights, the violation of the right and the
defendant’s liability for that violation. Baku Raphael & Anor vs. AG constitutional
app. No 1/2003.

 A suit doest not disclose a cause of action if it does not show which civil right
the plaintiff is entitled to that was breached by the defendant. The plaint should
set out the rights of the plaintiff that were violated by the defendant and the
plaintiff suffered loss as a result thereof which relief is sought from this court.
GW Wenendeya vs. stanbic Ltd HCT-00-CC-CS-0486 – 2005;

 The position of the law is that the cause of action remains alive until the
prescribed time for filing such action has lapsed Idah Lteruha vs Ismail Muguta
CACA No. 22/2002

 A cause of action has been considered in the case of Daniel Sempa Mbabali vs
W.K Kidza and 4 others (1985) HCB 46 the court stated: if the plaint shows that
the plaintiff enjoyed a right, that right has been violated and that the Defendant
is liable then a cause of action has been disclosed.

Draft Notes on Civil Procedure 1 Muk 84 2010-2011 by Joseph Kyazze Esq.

 In the case of Micro Finance Support Centre Ltd versus Uganda Micro
Entrepreneurs Association Ltd HCT -00-CC-CS-1007-2004, justice Bamwine
Said: Halsbury’s Laws of England, Vol.1 at P.6 defines a “ cause of action ” as
“ that particular act on the part of the defendant which gives the plaintiff his
cause of complaint.” it is, so to say the fact or combination of facts which give s
a person the right to judicial redress or relief against another. The relational is
that where there is a right recognized by law, there also exists a corresponding
remedy for its violation. Thus 0.6 r1 of the Civil Procedure Rules requires all
pleadings generally to contain a brief statement of the material facts on which
he party pleading relies for claim or defence. And under 0.7r1 (e), it is
mandatory that a plaint contains the facts constituting the cause of action and
when it arose. The consequences of a plaint which discloses no cause of action
are grave: it must be rejected by the court. It is as serious as that. Therefore,
before rejecting a plaint for non- disclosure of a cause of action, the court must
be duly satisfied that the case as presented to it is unmaintainable and
unarguable.

 The question whether a plaint discloses a cause of action must be determined

upon perusal of the plaint alone, together with anything attached so as to form
part of it, and upon the assumption that any express or implied allegations of
fact in it are true. Sheriff & Co. – vs – Chotai Fancy Stores [1960] EA 374,:

 There are three essential elements to support a cause of action in a plaint VIZ a
plaintiff enjoyed, the right has been violated and the defendant is liable. The
question whether a plaint discloses a cause of action must be determined upon
perusal of the plaint alone together with anything attached so as to form party
of it and upon the assumption that any express or implied allegations of fact it
are time. Kebirungi Justine v Road Tainers Ltd & Ors [2008 ] HCB 72 CA

 It is settled law that the question whether or not a plaint discloses a cause of

Draft Notes on Civil Procedure 1 Muk 85 2010-2011 by Joseph Kyazze Esq.

 action must be determined upon perusal of the plaint alone, together with any
thing attached as to form part of it.; Jeraj Shariff & Co. Vs Chotai Fancy Stores
[1960] EA at 375 Mikidadi Kawesa-V-A-G (1973) I ULR 1221 ;( 1973) HCB 115

 Hamis Vs National Bank of India: That in deciding whether the plaint disclosed a
cause of action or nor the court had to confine itself to the plaint assuming that
what was alleged therein was true.

 Annexing a document to a pleading has the effect of incorporating the contents

of the document in the pleadings; Non- Performing Assets Recovery Trust V
Kapeeka Coffee Works Ltd SCCA No. 8 of 2001

 Where a plaint discloses a cause of action founded on an illegality, such is un

maintainable and should be struck out. John Buteraba vs Edrisa Serwanga HCC
No. 222/2008-

 In a cause of action founded on vicarious liability, it must be alleged that the tort
feasors were servants of the defendant in the course of their employment;
Bamuwayire Vs Attorney General (1973) HCB 87 This was an application by the
defendant to have the suit rejected on ground that in filing to allege that the
servants who arrested the plaintiff were acting as servants of the defendant in
an action for false imprisonment. Held: That the court had to look only at the
plaint in deciding whether it disclosed the cause of action against the defendant
was not made under nay obligation to ask for further and better particulars. The
Plaint did not disclose any cause of action as it did not allege the person who
arrested the Plaintiff were servants of the defendant and that the said servants
were acting in the course of their employment.

 Clementina Nayndori V E.A Railways: The defendant in his WSD contended that
the plaint did not disclose a cause of action. The plaint alleged the mischief of
the defendant’s servants but did not disclose that the servants were in the

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 course of their employment. Held: That in failing to show that the defendant’s
servants were acting in the scope of authority the plaint failed to disclose the
cause of action.

 Mubiru Vs Byensiba: A plaint will be struck out if it omits to show that the
defendant was working in the course of his employment. Wycliff Kigundu V AG
[1993] V KALR 80 SC Read also ; Bamuwayire-V-A-G.(1973) HCB 87

 However, the above position should be contrasted with the decision in Brigadier
Smith Opon Acak V AG [1997] 111 KALR 69, that it is sufficient if the plaint
indicates that they were servants of the defendants.

Rejection of a plaint and Striking out of pleadings

 See Order 7 r. 11 for the grounds for rejection of a plaint and O.6 r.30 on the
grounds for striking out a pleading; Read; Baku Raphael Obudra & Anor. V AG
Constitutional Appeal No. 1/03 Kanyeihamba JSC

 Question of whether a plaint does or doesn’t disclose a cause of action is a

matter of law which can be raised by the defendant as a preliminary point at the
commencement of the hearing of the action even if the point had not been
pleaded in the written statement of defence [see O.7 r11CPR; Tororo Cement
Co. Ltd v Frokina international Ltd SCCA No. 2/2001.

 The position is that if a plaint shows that the plaintiff enjoyed a right, that the
right has been violated and the defendant is liable, then a cause of action has
been disclosed and any omission or defect may be put right by amendment.
Tran slink. Tran slink (U) Ltd vs. Sojitra Cargo services Ltd & ors HCT -00-CC-CS
No. 0561 /2006.

 Under 0.7r1 (e), it is mandatory that a plaint contains the facts constituting the

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 cause of action and when it arose. The consequences of a plaint which
discloses no cause of action are grave: it must be rejected by the court. It is as
serious as that. Therefore, before rejecting a plaint for non- disclosure of a
cause of action, the court must be duly satisfied that the case as presented to it
is unmaintainable and unarguable. Micro Finance Support Centre Ltd versus
Uganda Micro Entrepreneurs Association Ltd HCT -00-CC-CS-1007-2004

 Mick Daddy Kaweesa Vs Attorney General (1973 1ULR 122) ; the defendant
applied to have the plaint struck out/rejected under O.7 r11 on ground that it did
not disclose any cause of action. Held: That when deciding whether a plaint
disclosed a cause of action or not the court has to counteract itself with the
plaint assuming what was contained was true.

 NB: Plaint must allege all facts necessary to establish a cause of action. If the
cause of action is disclosed any defect or omission may be put right by
amendment which may be impossible if no cause of action is disclosed. See
Tororo cement Co. Ltd v Frokina international Ltd SCCA No. 2/2001.

 The question whether a plaint discloses a cause of action must be determined

upon perusal of the plaint alone, together with anything attached so as to form
part of it, and upon the assumption that any express or implied allegations of
fact in it are true. Sheriff & Co. – vs. – Chotai Fancy Stores [1960] EA 374, the
Court of appeal for Eastern African Stated at P. 375:

 Baku Raphael Obudra & Anor. V AG Constitutional Appeal No. 1/03

Kanyeihamba JSC; I alluded to an exception to the general to the general rule
that upon an application to strike out a plaint for not disclosing a cause of
action, the court ought to restrict its ruling on the defect of the plaint and not to
decide on the merits of the case. The exception is where the court is satisfied
that “the cause of action” disclosed is clearly not maintainable in law. [See the
dicta in Nurdin Ali Dewji & others vs. G.M.M. Megriji & others (1953) 20 EACA

Draft Notes on Civil Procedure 1 Muk 88 2010-2011 by Joseph Kyazze Esq.

 132, and in Ismail Serugo’s case.

 When dealing with preliminary point of objection, it is always important and

useful, to have regard to the procedural law under which they are raised.
Distinction must be made between points of objection as to the form of a
pleading and those as to the substance of the case., it is one thing to object that
a plaint does not disclose a cause of action, and quite another to object that
the claim in the suit is not maintainable in law. That is because the outcome is
different. In the latter category, the court decides on the merits of the case on
basis of law only . The procedural rules applicable to this category are 0.6 rr.27
and 28, and 013 r.2 of the civil procedure rules. On the face of it, the point of
objection in the instant case falls in the former category, where , subject to one
exception that I will revert to later in this judgment, the court decides on only
the fate of the impugned pleading, without going into the merits of the case .
The relevant procedural law of that category is 0.6 r. 29 and 0.7 r.11 CPR. Baku
Raphael Obudra & Anor. V AG Constitutional Appeal No. 1/03 Kanyeihamba
JSC;

 An application to strike out pleadings did not need a formal application a court
will use its inherent powers to strike out a plaint or WSD where the defect is
apparent on the face of the record and where no amount of amendment will
are the defect. The procedure is intended to stop proceedings which should not
have been brought to court into 1st place and to protect the parties from
continuance of futile and useless proceedings; Kayondo v AG (1988-90) HCB
127

 Striking out a pleading for want of disclosure of a reasonable cause of action or

reasonable defence or on ground of being frivolous and vexatious; Order 6 r. 30

 The term “ reasonable cause of action has been defined by Lord Pearson in
Drummond Jackson versus British Medical Association & others [ 1970] IWLR

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 688 at page 606 to mean “ a cause of action with some chance of successes,
when ( as required by paragraph 2 of the rule ) only the allegations in the
pleading are considered”.

 Frivolous and vexations proceedings are proceedings brought with no

reasonable prospect of success, and with no useful or serious purpose but to
annoy the other party. See oxford dictionary of law 6th Edition at page 564

 That the summary jurisdiction of the court to strike out pleadings was never
intended to be exercised by a minute and protracted examination of documents
and the facts of the case … to do that is to usurp the position of the trial judge,
ad to produce a trial of the case in chambers, on affidavits only, without
discovery and without oral evidence tested by cross examination in the ordinary
way See also Norman vs. Mathews 1916 85 L.J. K.B 857. Read Tikani V Motui
[2002] SBHC 10;HC-CC-029/2001 on the meaning of frivolous and vexatious
suits

Relief, which the Plaintiff Claims.

 Every plaint shall state specifically the relief which a plaint retains either simply
on the alternative and it shall not be necessary to ask for general or other reliefs
which court may deem fit. This rule shall apply to the defendant in his WSD if a
definite sum of money is counter-claimed. Read; Kasule V Makerere University
[1975] HCB 376

 Vallabhudas & Sons Ltd & Mawangala Estate vs. Mateeka [2001 – 2005] HCB
Vol. 2 68. The law is that special damages must be specifically pleaded and
strictly proved. Read Shah V Mohamed Abdulla [1962] EA 76; on whether it is
mandatory to have a special heading “special damages”.

Draft Notes on Civil Procedure 1 Muk 90 2010-2011 by Joseph Kyazze Esq.

 Take me Home Vs Apollo Construction: Counsel for the Plaintiff asked court to
award damages for breach of contract but this was not specifically pleaded in
the plaint and he therefore asked court to make an award under the umbrella of
any other suitable relief. Held: That in regard to the prayer for any other suitable
relief or further and other relief that advocates seem to make a practice of
adding in their plaints it has no meaning and does not add anything to what is
claimed nor could be used as generally inclusive come up and make shift so as
to avoid the penalties of sloppy inadequate and incompetent drafting of
pleadings.

 Kisige V BS Uzakami Batolawo: The Plaintiff sued the defendant for wrongful
amount but never included any claim in the plaint. The plaint was not amended
by his advocate to accommodate such a claim and counsel sought to rely on
paragraph (d) urging court to exercise its powers and award any other/further
incidental relief. Held: That if general damages are to be awarded to the plaintiff
the plaintiff must plead and prove them. Mere insertion at the end of the plaint
of an omnibus clause can not assist the plaintiff to recover any damages,
special or general. This is so because even when general and special damages
are prayed still the said omnibus prayer always appears, thus it can not afford
his client any reliefs. However the mansion was technical and the plaintiff being
a semi illiterate and layman, it was understandable and damages will be
awarded.

 The allegations set out in a plaint must support the prayers asked for in the
plaint and the prayers themselves must be legally justified. See
HCT-05-CV-MA-0072 of 2000 Augustine Tibahurira & others vs. IBAKA Group
CFI LTD AT Page 9. Also, Departed Asians Property Custodian Baord vs. Issa
Bukenya t/a New Mars War House 1994-95 HCB 60.

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 THE DEFENCE:
S. 20 CPA: Once a suit has been instituted, the defendant has to appear and answer
the claim (O.5 r 3). See different modes of responding to summons; vide; filing a
defence, an application for leave to appear and defend, an affidavit in reply all
depending on the type of summons.

 The function of a WSD is to state the grounds and material facts on which the
defendant relies for his defence. O. 8 r1 (a).
Filing of a defence:
 Order 8 r 1: A defendant may, if so required by court at a time of the issued of

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 summons or any time thereafter as prescribed by court file a defence within 15
days unless otherwise ordered by court. See Mark Graves V Balton (U) HCMA
No.158 of 2008 for time within which a defence should be filed; See also Rule 11 of
the Government Proceedings (Civil Procedure) Rules .; AG is given 30 days within
which to file a defence.

How is a defence filed

 O.9 r1: This is done by delivery of a written statement of defence dated on the day it
is filed, stating the name of the defendant if he is to appear in person or his
advocate and the address of service. The defendant shall file and sent it, showing
the date and return it to the person filing it and the defence shall be served onto the
plaintiff. See copy of the defence.

 Read Order 8 r.19 on filing and service of a defence and subsequent pleading;
Read Nile Breweries Ltd V Bruno Ozunga T/A Nebbi Boss Stores
HCT-00-CC-CS-0580-2006

 Extension of time to file a defence; Extension of time may be when parties have
consented or where the party has applied to court.[see s.96 CPA] Godfrey Magezi &
Brain Mbazira V Sudhir Rupaleria SCCAPP 10/2002. Applicant sought extension of
time within which to file an appeal out of time to appeal against the decision of the
Court of appeal. Held; that court has jurisdiction to extend for the doing of an act so
authorised or required. The omission, mistake or inadvertence of counsel ought to
be visited on the litigant leading to striking out his appeal thereby denying him
justice. Even if the legal advisor’s actions have been negligent, an extension of time
has been accepted.

 On what amounts to sufficient cause to warrant extension of time to file a defence;

Read; Robert Opio & Anor V Edward Kabugo Sentongo HCMA No.166-2002

 Read also; Mable Mulumbav Hanna Semakula 1993] IV KALR 84- On the question

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 of the grounds for grant of leave to file a written statement of defence out of time.
See also; AG V APKM Lutaaya SCC Appl No. 12 of 2007

 That the legal effect of extending time to file an appeal out of time[applicable to a
defence] when the appeal [or defence] had already been filed (out of time) is to
validate that appeal or to excuse the late filing of that appeal. See also Credit
Finance Co Ltd V Makerere Properties SCC Appl No.1 of 2001.

 Object of Defence, O.5r 1 (a); The object of a defence is to inform the plaintiff and
court of what the defendant admits and denies in the plaintiff’s claim and what
grounds of facts the defendant relies on to answer the plaintiff’s claim.

 Mode of defence: the defendant is obliged to deal with every allegation of fact and
expressly admit or deny it. General denials may not suffice; Joshi V Uganda Sugar
Factory Limited [1968] EA 570; Ben Byabashaija & Anor. V AG [1992] 1 KALR 161;
Chukwuma f. Obidegwu V Daniel B Semakadde [1992] 11 KALR 64

 Specific denial: Order 8 r3 provides that every allegation of fact in the plaint, if not
denied specifically or by necessary implication or stated to be not admitted in the
pleading of the opposite party shall be taken to be admitted except as against a
person with a disability provided that the court may in its discretion require any
facts so admitted to be proved otherwise by such admissions. Melista Meyasi Vs
National Bank of Commerce: Held: That by order 8 r 8 CPR [TZ] each allegation of
fat in the plaint which is not admitted must be specifically dealt with in the defence.
A general denial is not sufficient.

Nature of a Written Statement of Defence

 The defendant must respond to all allegations of fact and law:

 By admission in which case its case will be complete. Makerere University V Rajab
Kagoro [2008] HCB 103on what amounts to an admission

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 By denial of the whole or essential parts of the averments or parts of the plaint.
This is called traversing.

 He may allege at it in half truth and developments which give facts giving the case
a different complexion {confession and avoidance}.

 He may take a point of law, [ Note; The failure to raise a point of law in the Written
statement of defence doesn’t stop a party from raising it at the trial; See Tororo
cement Co. Ltd v Frokina international Ltd SCCA No. 2/2001.

 Denials must be specific or otherwise may be deemed to have been admitted.

The Effect of Failure to File a Defence

 This depends on the nature of the suit and the subject matter as well as the
defendant in question. Generally, a defendant who fails to file a defence within the
time limited by law is deemed to have excluded themselves from the proceedings
in court. See Order 9r.6, 8 and 11 CPRs on default, interlocutory and ex parte
judgements arising out of default of filing a defence; Dembe Trading Enterprises
Ltd V Uganda Confidential Ltd and Anor. HCT-00-CC-CS-0612-2006

 See exception where the Attorney General is the defendant Read; Agasa Maingi v
AG HCS No. 95/2002 on the procedure before a default judgement is entered
against government.

 Sebunya Vs Attorney General [The Plaintiff neither sued the Attorney general who
failed to file a WSD within the statutory period and was nor represented at the
hearing. A state attorney appeared for the defendant. Held: A defendant who files
no defence could not be heard. The state attorney as in the instant case even if he
had appeared in time would have had no locus standi and could not be heard
 Held: Further; The court has discretion to allow the defendant who has not filed a

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 defence to be heard but in the circumstances the discretion would not have been
exercised in favour of the applicant. Sir William Duffus on O.9 r10 is silent on the
procedure to be followed when the Applicant fails to file a defence. The procedure
is different when a defendant fails to enter appearance in that case the action is set
down for hearing exparte, no notice is served on the defendant but provisions is
made by r. 18 of that order that a defendant does not appear and desires to put in
the proceedings then the court is given a wide discretion and has powers to allow a
defendant to take put in the proceedings even though this would no doubt be on
terms to that the applicant would not suffer through the defendant’s default. But
also given a definite and gratuitous advantage to the defendant the guilty party.
Since decision would have been contrary to the elementary principles that a
defendant must if ordered disclose his defence by trial; O.VII r1 and be bound by
his pleadings, O.VI r 3. See S. 96 on extension of time to file a defence; AG & UCB V
Westmont Land (Asia) Bhd & Others [1997-2001] UCLR 191

 Admission of Liability; Elizabeth Imagara and 20rs v AG 1995) IV KALRS The effect
of failure to file a defence whether it constitutes admission of liability.

 Cleaves Hams Ltd Vs British Totutorial College (Africa) Ltd:; Held by Hamis: That
failure to file a defence operates as an admission of all allegations in the plaint
except as to damages. See Order 9r. 8 CPR B

 Badruidin and another VS Pyarali: Held: Judgment may be given against a

defendant who fails to file a defence. See Order 9r.6 CPR Hajji Asuman Mutekanga
V Equator Growers (U) Ltd SCCA No. 1995

 Where the defendant admits liability in his WSD, the proper remedy for the plaintiff
is not to apply for the defence to be struck out but to proceed under order 11r.6
which empowers a trial court to inter alia enter judgement against the defendant
who admits liability in his defence; Francis Sebuya V Allports Services (U) Ltd
SCCA No. 6/1999

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 The Defendant will have excluded himself from proceedings unless he applies to
show cause as to why he did not file the defence within the time allowed. Mark
Graves V Balton (U) HCMA No.158 of 2008; Bukenya Vs Attorney General (Supra).
Twiga Chemical Industries Ltd V Viola Bamusedde CACA No. 9/2002; Silas
Bitaitana V Emmanuel Kananura CACA No.47/1976; AG & UCB V Westmont Land
(Asia) Bhd & Othrs. [1997-2000] UCLR 191

 The rule that parties are bound by their pleadings applies to defences; only
matters in the WSD are to be considered. Inter freight Forwarders (U) LTD v EADB
SCCA No.13/1993

 Where a Written Statement of Defence doesn’t disclose a reasonable defence, it

may be struck out; Libyan Arab Bank Vs Entrap Co. Ltd. This was an application
under O.48 r 1 CPR for an order to strike out the defence and enter judgment for
the applicant on grounds that the defence disclosed no reasonable or any answer
to the claim and that it was frivolous and vexatious and filed merely to obstruct or
delay justice. At the hearing counsel for the defendant produced two letters
referred to as an affidavit but not appended thereto and sought to rely on them.
Held: That it is well established that in considering applications under O.6 r 29 the
court has to look at pleadings alone and any annextures thereto and not any
subsequent affidavits. The affidavits of counsel and two letters were
inadmissible for the purpose of considering the said order. On Mode of Defence:

 Held: That in its written statement of defence it was clear that the defendant
denied being indebted to the plaintiff in a manner alleged by the plaintiff in the
plaint. This was perfectly proper answer against the plaintiff’s claim which raised
triable issues of fact and law fit for trial by this court.

 The distinction given to court under O.6 r.30 to strike out pleadings should only
be exercised in plain and obvious cases since such applications were not

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 intended to apply to any proceedings which raised a serious question of law. The
WSD raised a reasonable defence to the plaintiff’s claim and was neither frivolous
nor vexatious and an abuse of the process of court. Nile Bank ltd v Thomas Kato
& others [1997 – 2001] UCLR 325

 Where a Written Statement of Defence relies on fraud or misrepresentation, the

particulars

A defence with a Counter claim

 A Counterclaim is substantially a cross action and not a mere defence. Every cross
action can not be pleaded on a counterclaim provided that it is of such a case not as
can be tried more conveniently by some other tribunal. In a counterclaim the
defendant claims that he is entitled to relief or a remedy as against the plaintiff. O8
r2. a defendant may in an action set off or set up by way of counterclaim against the
claim of the plaintiff.

 O.8 r 7 and 8 [Specific counter claim and title to a counter claim ]: When any
defendant seeks to rely upon any ground as supporting a right of counter claim he
shall in his statement of defence state specifically that he does so by way of
counterclaim. Read Nile Breweries V Bruno Ozunga T/A Nebbi Boss Stores
HCT-00-CC-CS 0580-2006 on the nature, title and consequences of a counter claim
Geoffrey Ouma V Kaledonia Karuragire HCCS No. 418 of 2000

 NB: A counter claim must have a cause of action and must specify the relief sought
from court; Fernande Vs Peoples Newspaper Ltd Held; that since contributory
negligence has not been pleaded, the court should not have considered and
awarded the damages.

 Separation of counter-claim: O.8 r 2: Court may on application of the plaintiff order

separate trial in case the counter-claim will no be conveniently disposed in the

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 pending action. Uganda Wholesalers Vs Impex House Ltd: The Plaintiff
(Respondent) claimed some money as the price of goods sold and delivered to the
defendant (Applicant). The defendant put forward a counter-claim against the
plaintiff in two parts. The Magistrate under .8 r 2 refused to decide on the matter and
stated that the counter-claim be tried separately. The plaintiff had not applied for
such separate trial of the counter-claim. Held: O.8 r 2 only gave the court discretion
to order separate trial of a counter-claim when application had been made for such.
The plaintiff did not wish the counter-claim to be tried separately and the magistrate
would be directed to adjudicate upon the counter-claim.
Reply to a WSD
 Where a defence is made with or without a counter claim and it raises new issues, the
plaintiff / defendant to the counter claim may make reply to the defence; Order 6 r.18 of
the CPR; Read Katuramu V AG (1986) HCB 39 Held; that although a plaint doesn’t
include a reply by the plaintiff, nevertheless a reply forms part and parcel of his case;
where a reply is filed in answer to the defence, it must be considered together with the
plaint with the result that it may supplement or cure any deficiency in the plaint

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Draft Notes on Civil Procedure 1 Muk 100 2010-2011 by Joseph Kyazze Esq.
JOINDER OF PARTIES:
All persons who are parties may be joined on one side as parties. O.1 r 1
provides that persons can be joined in one suit as in whom any right of relief in
respect of or arising out of the same act or transaction or series of acts or
transactions is alleged to exist, whether jointly, severally, or in the alternative
where, if those persons had bought separate suits, any common question of law
or fact would arise.
Joinder of defendants:
O.1 r 3 provides that all parties can be joined as defendant against whom any
right to relief in respect of or arising out of the same act or transaction or series
of acts or transactions is alleged to exist, whether jointly, severally or in the
alternative where, if separate suits were brought against those persons, any
common question of law or fact would arise. Example, joint owners of
properties.
Barclays Bank Vs Patel [1959] EA 214: Plaintiff sued the defendant as guarantor
of an over draft to the company. Judgment was obtained against all the
defendant except the 3rd and 4th defendants. The 1st and 5th defendants wee
parties to the suit and the 1st, 2nd, 4th, 6th and 3rd defendants objected as the suit
was not maintainable s the plaintiff had improperly joined different defendants
in one action.
Held: That different causes of action accrued on different dates against

Draft Notes on Civil Procedure 1 Muk 101 2010-2011 by Joseph Kyazze Esq.
different defendant. The circumstances of liability were separate and distinct.
The two causes of action could not be disposed of together. That there was a
common question of law as the guarantees being identical in form but there
was no common question of fact in the circumstances in which the guarantees’
right to relief arose are different and binding different defendants. All conditions
must be fulfilled in order to apply O.1 r 3.
Karimani Vs Desai: A landlord claimed in one suit to eject two tenants from
different portions of the same property.
Held; That no right to relief arose against the tenants until they had separately
ignored the notices to quit. Those were separate and distinct acts.
Bank of India Limited Vs Shah: The plaintiff Bank sued 5 defendants jointly and
severally s guarantors of monies lent on an overdraft to a company’s claim. The
2nd, 3rd and 5th defendants submitted to judgment but the 4th defendant raised an
objection that there was a misjoinder of parties and causes of action under O.1
r 3.
Held: That O.1 r3 applied because though the plaintiff had separate remedies
against the defendants, the causes of action arose from the same transaction
namely, the company’s overdraft raised some common question of law and fact
against each of them.

O.T. Company Ltd Vs African Produce Agency Ltd and Another: The 1st
Defendant agreed to transport for the plaintiff 400 tones of kerosene from
Kisumu to Kampala but owing to accident between the 1st defendant’s bay and
the 2nd defendant’s bus, 367 tones were damages. The plaintiff sued the 1st
defendant’s in negligence and joined the 2nd defendant by 3rd party notice.
Held: That the case of the 1st defendant collision was due solely to the
negligence of the driver of the 2nd defendant’s bus, there was thus a question to
be decided between the defendants which could not be resolved if the 2nd
defendant was dismissed from the action.
Semakula Vs Musoke: The plaintiff sued the defendant for trespass and

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conversion of his property as well as that of his wife and children. Counsel
argued that he should have included property belonging to his wife.
Held: That court found that the tort of trespass constitutes an inference with
possession with the personal property of the plaintiff and his family at the
plaintiff’s house and could only be said to have been in his legal possession at
the time. That for the plaintiff to sue the defendants jointly there must be a
common question of law or fact that could arise if separate suits were brought.

Remedy for Misjoinder:

The CPR, O.1 r 10 provides for amendment. Sub rule (1); if the suit is in the
name of a wrong person as plaintiff or when it is doubtful as whether it is in the
right names of the plaintiff the court may at any stage of the suit if satisfied that
the suit has been instituted by a bonafide mistake and it is necessary for
determination of the matter in question to do so, order any person to be
substituted or added.
Barclays Bank Vs Patel:
Held: That the plaintiff would be given leave to withdraw the suit and institute a
fresh one or suits as he chose against the defendants on payment of the
defendants costs. The plaint were not to be struck out as being embarrassing.

Joinder of Plaintiffs: See O.1 r 1:

Buikuma Estate Coffee Ltd Vs Lotabi: At the hearing, counsel for the defendant
made two preliminary objections on point of law that there was a misjoinder of
parties and causes of action contrary to O.1 r 1, O.2 r 2 and 3 (authority of
advocate) and that the plaintiffs were not entitled to join them.
Held: That the right to relief existing in all 3 plaintiffs if proved by evidence
arose out of the same transaction, namely, invalid resolution of the company
which purported to oust the lawful directors and accordingly there had been no
misjoinder of parties and no misjoinder of causes of action.

Draft Notes on Civil Procedure 1 Muk 103 2010-2011 by Joseph Kyazze Esq.
Joinder of Causes Action:
Uganda Commercial Trading Co. ltd Vs Jinja Cash Stores: Counsel raised a
preliminary objection that the suit was not maintainable as the plaintiff had
improperly joined separate defendants and causes of action in one suit.
Held: That under the Bulk Sales Ordinance the plaintiff in his capacity as a
st nd
creditor of the 1 defendant was entitled to have any redress against the 2
defendant as transferee of the lorries and a common question of law and fact
would have arisen if separate suits wee brought. There was no misjoinder of the
defendants or causes of action and the suit was maintainable.
Yokana Kakire Vs Lunyo Estates Ltd: The eight (8) plaintiffs each of whom
claimed to be a tenant of the defendant company sued for alleged interference
with their rights of possession. The defendant contended that there was
misjoinder of parties and causes of action contrary to O.1 r 1, CPR.
Held: that the causes of action set out in the plaint did not arise out of the same
act or transaction. They were of wholly distinct and different acts of
dispossession and interference of rights of possession. There was no question
of law or fact common to the several plaintiffs and there was a misjoinder of
plaintiffs and causes of action.
Stroud Vs Lawson:
Held: That it is necessary that both conditions should b fulfilled and that the
right to relief alleged to exist in each plaintiff should be in respect of or arise out
the same transaction and also that there should be a common question of law
or fact in order that the case may be within the rule.
Musitwa Kyazze Vs Eunice Busingye:
Held: That no suit should be dismissed for non joinder or misjoinder of parties
or causes of action.
Substitution of Parties:
O.1 r 10 (2) empowers court to strike out parties who have been improperly
joined whether as plaintiffs or defendants and to substitute those persons who
ought to have been joined or whose presence is necessary for the effective and
complete adjudicating all the questions involved in the suit.

Draft Notes on Civil Procedure 1 Muk 104 2010-2011 by Joseph Kyazze Esq.
………………..Vs West Mengo [1980] HCB 60;
Held: That a defendant can apply under O.1 r 10 to join a party to the suit as a
co-plaintiff by availing himself with the precision of the rule, but the court on its
motion can join any party to the suit which it deems would facilitate effectual
and complete determination of the suit.

Existence of a Substituting Suit:

Joinder can only be allowed where there is a valid subsisting suit.
Parther Vs Mpekma:
Held: That a suit instituted in the names of a dead person is a nullity and O.1 r
10 can only apply if the person was living at the time otherwise this suit was a
nullity.
Sajjabi Vs Timber Manufacturing Ltd:
Held: That a non existent person can not be sued and no amendment can be
made under O.1 r 10 because the rule applies only where the suit is in existence.
Intervention by Persons:
No parties to the Suit:
Where as only parties to a suit can take part, the laws allows intervention by
persons not party to suits in specific situations.

REPRESENTATIVE ACTION:
O. 1 r 8 provides that when there are numerous persons having the same
interest one or more of such persons may with permission of the court sue or
be sued or may defend such suit on behalf of or for the benefit of persons
interested. Any person on whose behalf or benefit a suit is defended under the
rule may apply to be a party. There must be a common interest/grievance and
the relief claimed must be beneficial to all.

Draft Notes on Civil Procedure 1 Muk 105 2010-2011 by Joseph Kyazze Esq.
Proceedings involving Associations without capacity to sue:
These are suits brought against a person in a representative capacity and those
other members and friends to intervene; Sonko Vs Haruna:
Held: One (representative) must have a list of those they are representing with
their signatures.

Johnson Vs Moss:
The plaintiff, a minor sued thru a next friend for injuries sustained while in an
incorporated club. He asked court for permission to proceed against one
member as representing others.
Held: That a person to bring a representative action, he must obtain leave of
court to do so. [That the application under O.1 r 8 is expected]
Makula International Vs Cardianl Nsubuga: The case concerned a breach of
contract between the plaintiff and the defendant Catholic Centre Association to
print T. Shirts with a Centenary emblem at a consideration of the assignment a
commission of 10%. There was a breach as a result of which the plaintiff sued.
The suit was brought against Cardinal Nsubuga and one Father Kyeyune. On the
same day, an application to bring a representative action against the defendant
was instituted and this was heard a week later. The defendant sought to strike
out the plaint on grounds among others that the suit had been granted by court
before the representative order.
Held: That court ought to insist in all cases on its permission which is the
requirement under O.1 r 8 which can not be ignored hence the present suit was
brought prematurely.
Paul Kanyima Vs Rugoora: The plaintiff a member of an unregistered society
sued the defendant on his behalf and on behalf of his fellow members for
trespass to land. A preliminary objection was raised. Court found on the fact
that this was a representative suit where the plaintiff had not obtained leave of
court to sue under O.1 r 8, CPR.
Held: That this being a representative suit it was mandatory under O.1 r 8 of the
CPR for the plaintiff to obtain leave of court before filing it and a suit that is

Draft Notes on Civil Procedure 1 Muk 106 2010-2011 by Joseph Kyazze Esq.
brought under without leave of court is incompetent an can not be sustained but
should be struck out.

Levis Vs Daily Telegraph:

Held: That co-plaintiffs in a consolidated action wee not entitled to separate
legal representation without leave of court so that the action as it existed was
not properly constituted and there being no reason for granting leave for
separate representation the action could not proceed for trial until a singly
solution was placed on record for both plaintiffs.

Sonko and Another Vs Halima Serwanga:

The plaintiffs sued in a representative capacity for 21 plaintiffs without
obtaining permission of court to do so. A preliminary objection to the effect was
raised pursuant to O.1 r8.
Held: That O.1 r 8 allows representative suits as a matter of convenience to
avoid the necessity for encumbering the plaintiff or defendant with the names
of many persons and to avoid the necessity of personal service of proceedings
and their personal appearance. That persons having the same rights of relief
arising out of the same act or transaction could elect whether to proceed under
O.1 r8 [to be joined as co- plaintiffs or if they are numerous, they apply to court
for permission to sue by a representative(s) under O.1r8 (1). That the plaintiff
having been elected to in a representative capacity should have proceeded
under O.1 r 8 and ought to have sought the permission of court to sue on behalf
of the 21 unnamed persons hence the suit would be dismissed. Smith Vs
Cardiff Corporation:
Three conditions must exist:
- All members must have a common interest.
- They must have a common grievance
- Relief sought must be beneficial to all them.

THIRD PARTY PROCEEDINGS:

Draft Notes on Civil Procedure 1 Muk 107 2010-2011 by Joseph Kyazze Esq.
Third Party refers to a matter in issue. The general scope of 3rd party procedure
is to deal with cases applying all disputes arising out of transactions between
the plaintiffs and defendant and third party to try and settle them in one action.
Where the defendant is sued and he thinks another person is responsible, he
may sue the 3rd party by bringing 3rd party proceedings.
rd
NB: There is in effect a separate action between the defendant and 3 party but
rd
for convenience, the 3 party proceedings are handled in the same proceedings
as the main proceedings.

Barclays Bank VS Thom:

Held: That the purpose and effect of 3rd party proceedings is to make that party
bound by decisions made between the plaintiff and defendant to save extra
expenses and time which will be caused by two separate actions.
Sango Bay V Dresdenor Bank:
Held: That the object of 3rd party proceedings is to prevent a multiplicity of
actins and the procedure is limited to a claim of indemnity and contribution.
Third party proceedings may be instituted by the court. See O.1 r 14 providing
that when a defendant claims to be entitled to contribution or indemnity over or
against any person not a party to the suit, he may issued a notice to 3rd party
with leave of court. This notice has to be served with the plaint on to the 3rd
party.
Obango Vs UTC [1975] HCB, 108: The Rules regarding service must be observed
under O.5 and 3rd party notice must be accompanied with a plaint.
In case of an accident if an employee of the plaintiff had had an accident and
he brought an action against the plaintiff, counsel for the plaintiff and counsel
for the employee allegedly entered a consent judgment for the employee for a
sum of 300,000=. Thereafter counsel for the employee attached the furniture
belonging to the plaintiff and it was discovered that the consent judgment was

Draft Notes on Civil Procedure 1 Muk 108 2010-2011 by Joseph Kyazze Esq.
false, the defendant successfully applied for 3rd party notice to be issued
against counsel for the employee. At the hearing of the third party notice
counsel was conspicuously absent and the defendant prayed that court enters
judgment against the 3rd party in accordance with O.1 r 16.
rd
Held: That since the 3 party had ignored the summons to court, this was a
proper case to enter judgment against him and that since it was a ficticious
consent judgment entered for counsel for the employee had put the defendant
into expenses, he was ordered to indemnify the defendant for the expense.

Scope of Third Party Proceedings:

Total Oil Products Ltd Vs W. Malu: The Plaintiff filed a suit against the
defendants trading as Ken Service Station. The 2nd, 3rd and 4th defendants then
took 3rd party proceedings against the 1st defendant claiming indemnity on
ground that they had withdrawn from the partnership at the relevant time and
the debt was incurred by the 1st defendant without lawful authority. The 1st
defendant counterclaimed a sum of money and the issue was whether 3rd party
proceedings extended to a counter claim and set off.
Held: That 3rd party proceedings in Kenya is narrow in scope than in England
and the only question which can be tried in such proceedings is as to the
liability of 3rd party to make contribution or indemnity claimed in the whole or in
part and any claim arising by way of set off or counterclaim is excluded.
Macheans Vs Cycles (1902) Ich 287:

English scope of 3rd party proceedings:

Cozens handy L.J. That the act treats the 3rd party procedure as analogous to a
cause instituted by the defendant as against the 3rd party with the consequence
that the defendant may defend himself in any way in which any defendant in an
action at the suit of a plaintiff may defend himself among which modes of
defence is indicated the mode
of a counterclaim.

Draft Notes on Civil Procedure 1 Muk 109 2010-2011 by Joseph Kyazze Esq.
CF Total Oil Products Ltd. See O. r 18:
Walusimbi Vs A-G: The plaintiff sued the A.G. claiming damages for negligence.
rd
The A.G. applied exparte for a 3 party notice to be issued and served on to one
M pursuant to O.1 r 14, CPR. M also implicated Y and the A.G. applied for and
served the 3rd party notices on Y but counsel for Y asked for 3rd party notices to
be set aside on grounds that the cause of the claim against Y was different from
those between the plaintiff and defendant.
rd
Held; That in order that a 3 party to be lawfully found the subject matter
between the plaintiff and defendant must be the same as the subject matter
between the defendant and 3rd party and the original cause of action must be
the same. As the plaintiff was suing for negligence against the defendant, the 3rd
party notices alleging fraud should be set aside.

Appearance of 3rd Parties:

O.1 r 18 provides for appearance of 3rd parties for directions. Where the 3rd party
filed a defence the defendant who gave 3rd party notice may apply to court for
directions as to questions on how the issues between him and the 3rd party are
to be tried and the 1st question is whether there is a question for trial between
the 3rd party and defendant and the onus is on the defendant to prove that there
is a question of liability on the defendant by the 3rd party [defendant admits that
he is liable but it is the 3rd party to pay].

INTER PLEADER PROCEEDINGS:

Proceedings refer to situation where tow or more persons claims or finds in the
hands of a 3rd person and he has no claim to it but is ignorant as to which of the
parties is rightly entitled to it and such a person may take out inter pleader
proceedings.
S. 60 CPA provides that where two or more persons claim adversely to or
another the same debt, sum of money or other property movable or immovable

Draft Notes on Civil Procedure 1 Muk 110 2010-2011 by Joseph Kyazze Esq.
from another person who claims no interest therein other than for searches and
costs and who is ready to pay or deliver it to the rightful defendant, such other
person may institute a suit of inter pleader all claimants.

Pending Suits:
The applicant was plaintiff in a suit as part of which 100= was paid to the
respondent who was one of the applicant’s advocates. The payment was made
by one of the other parties to the suit by a cheque drawn by a company of which
the party was a company director. Thereafter disputes arose as to the term of
office and conditions under which the money should be paid. After much
correspondences applicant brought a suit against the respondent claiming the
money. The executors of the estate of the director claimed to have paid the
money to the respondent who denied it. The respondent brought an inter
pleader application.
Held: That this was a proper case for inter pleader proceedings, there being
adverse claims to the same sum of money. Expert and Misery Docks [1981) I KB

Procedure for Inter Pleader Proceedings:

O. 34 r 1 provided that inter pleader proceedings may be instituted where no suit
is pending by originating summons and where there is a suit, by motion.

Conditions:
The applicant must satisfy court (in an affidavit) that:
- He claims no interest in the subject matter
- There is no collusion between the applicant and any of the claimants
- That the applicant is wiling to pay the value of the subject matter in court.

Draft Notes on Civil Procedure 1 Muk 111 2010-2011 by Joseph Kyazze Esq.
Draft Notes on Civil Procedure 1 Muk 112 2010-2011 by Joseph Kyazze Esq.
Draft Notes on Civil Procedure 1 Muk 113 2010-2011 by Joseph Kyazze Esq.