Kakande Joseph Derrick and Another v Byekwaso Nsereko Joseph (Miscellaneous Application 270 of 2025) [2026] UGHC 1221 (5 October 2026)

1 THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA SITTING AT MPIGI MISC. APPLICATION NO. 270 OF 2025 (ARISING OUT OF CIVIL SUIT NO.22 OF 2025) 1. KAKANDE JOSEPH DERRICK 2. SEMUJJU CHARLES =============================== APPLICANTS VERSUS BYEKWASO NSEREKO JOSEPH============================RESPONDENT 10 RULING BEFORE ACTING LADY JUSTICE DEEPA VERMA Introduction and Background This is an application brought by way of Notice of Motion under Section 96 and 98 of the Civil Procedure Act, Cap 282, Section 33 of the Judicature Act, Order 51 Rule 6 and Order 52 Rules 1,2 and 3 of the Civil Procedure Rules seeking orders that; 1. This Honourable Court extends time to allow the Applicants to file their Written Statement of Defence out of time. 2. Costs be provided for. The background of this application is detailed in the affidavit in support 20 deposed by Kakande Derrick Joseph, the first Applicant and is summarised below; 1. That the Plaintiff/Respondent instituted Civil Suit No.22 of 2025 against the Applicants as well as other Defendants. 2 2. That the applicants were not served with the Court summons and the Plaint. 3. That the applicants only got to know about the case recently from their friend Sam that a case had been filed against them in this Honourable Court. 4. That the applicants had no prior knowledge of Civil Suit No. 22 of 2025. 5. That the applicants are ready and willing to defend themselves against the allegations raised by the Plaintiff in his plaint. 30 6. That the Applicants have since instructed lawyers herein, M/S Musinguzi & Co. Advocates, to represent them in Civil Suit No. 22 of 2025. 7. That the right to be heard is a fundamental, non -derogable right enshrined in the Constitution of Uganda, and the Applicants wish to be granted a chance to exercise this right in this matter. 8. That the Applicants have a good reason for failing to file the defence within time and that it is in the interest of justice that this Application be granted. In reply, the Respondent, through an affidavit deponed by Byekwaso Nsereko Joseph, opposed the application, contending that; 1. That the application has no chance of success, is an abuse of court process, and 40 was brought with a mala fide intention to delay the prosecution and hearing of the civil suit. 2. That the Respondent filed Civil Suit No.22 of 2025 against the Applicants in this honourable court. 3. That after filing the civil suit, this Honourable Court issued summons for ser vice upon the Applicants on the 25th of February 2025. 4. That on the 8 th of February 2025, a court process server, one Sentamu Micheal, contacted the 1st Applicant on a mobile phone number and informed him about the summons issued by this Honourable Court and that he wanted to serve him with the same; however, the 1st Applicant replied that he is not interested in court cases 50 and that the court process server has no right to call him and tell him about court cases. 3 5. That when the court process server called the 1 st Applicant a second time, he replied that he is not in Uganda and that the court process server should leave him alone. 6. That on the same date, the court process server contacted the 2 nd Applicant, and his phone was off. 7. That after trying to serve the Applicants and failing, the court process server filed an affidavit of service to that effect. 8. That the Respondent thereafter filed Miscellaneous Application No. 77 of 2025 60 against the Applicants in this honourable court wherein he sought orders of substituted service against the Applicants. 9. That this Honourable Court granted the same application and allowed the Respondent to serve the Applicants by way of substituted service. 10. That after the court issued the order of substituted service, new summons to file a defence were issued against the applicants and were advertised in the Daily Monitor on 9th April 2025. 11. That the Applicants knew the case was in court, but they played tricks to evade service of court process, and it is unfair for them to file this application with the ulterior motive of delaying the civil suit. 70 In his affidavit in rejoinder, the 1st Applicant deposes that the process server never called him at all, and that the number said to have been called, 0704431454, is not his and is registered to one Sharifah Nabasenya, a person unknown to him; his own number, he states, is 0709431454, registered in his own name. He contends that the process server could not have spoken to him on a number that was not his, and that the claim he said he was “not in Uganda" is on its face implausible, since he could not have taken a call on a Ugandan line while abroad. He characterises the affidavit of service as false, sworn to mislead the Court into granting substituted service so th e Respondent could proceed without him. As to the 2nd Applicant, he depones that the process server’s affidavit records only one 80 attempt to call him, which was unsuccessful because his telephone was switched off. He 4 90 100 contends that no further attempt was made to contact him and that this demonstrates that there was no genuine effort to effect personal service upon him. He further maintains that the Respondent made no meaningful attempt to serve either him personally, a position which, in his view, is supported by the Respondent’s own affidavit accusing the Applicants of frustrating proceedings which the Respondent himself instituted. The 2nd Applicant further depones that he only became aware of the suit through his friend, Sam, whereupon he immediately instructed counsel, confirmed the existence of the suit at the Court registry, and filed the present application in the same year in which the suit was instituted. He therefore denies that there was any delay on his part. Representation The Applicants are represented by M/S Musinguzi & Co. Advocates whereas the Respondent is represented by M/S J Mukisa & Co. Advocates. Both parties filed their written submissions which I have carefully considered. Preliminary Objection Counsel for the Respondent raised a preliminary objection to the Applicants’ written submissions on the ground that they were filed and served out of time and without leave of Court. Counsel submitted that the submissions, which were due on 1st May 2026 pursuant to the Court’s directions, were filed on 21 st May 2026 and served on 28 th May 2026. Counsel therefore prayed that the Applicants’ submissions be struck off the record. Article 126(2)(e) of the Constitution of the Republic of Uganda, 1995, requires Courts to administer substantive justice without undue regard to technicalities of procedure. In the present case, although the Applicants’ submissions were filed and served out of time, the Respondent filed submissions i n reply on 1 st June 2026. The Respondent has also not demonstrated any specific prejudice occasioned by the late filing and service of the Applicants’ submissions. In the circumstances, I find that the delay, though irregular, has not occasioned any prejudice to the Respondent that would justify the drastic step of striking the Applicants’ submissions off the record. The preliminary objection is therefore overruled. The 5 Applicants’ written submissions shall remain on the record and have been considered in 110 determining this application. Issues for Determination Pursuant to Order 15 Rule 5(1) of the Civil Procedure Rules, this Court rephrases the issues for determination to read as follows: 1. Whether the Applicants should be granted leave to file their written statement of defence in Civil Suit No.22 of 2025 out of time? 2. What remedies are available to the parties? Resolution 120 130 Whether the Applicants should be granted leave to file their written statement of defence in Civil Suit No. 22 of 2025 out of time? Sections 96 and 98 of the Civil Procedure Act and Order 51 Rule 6 of the Civil Procedure Rules confer upon this Court the power to enlarge the time prescribed for doing any act or taking any proceedings under the Act or the Rules, including where the prescribed period has already expired. Section 96 of the Civil Procedure Act provides: “Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Act, the Court may, in its discretion, from time to time, extend that period, even though the period originally fixed or granted may have expired.” Similarly, section 98 of the Civil Procedure Act preserves the Court's 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. It provides: “Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” Order 51 Rule 6 of the Civil Procedure Rules further provides: 6 140 150 160 “Where a limited time has been fixed for doing any act or taking any proceedings under these Rules or by order of the Court, the Court shall have power to enlarge the time upon such terms, if any, as the justice of the case may require, and the enlargement may be ordered although the application for it is not made until after the expiration of the time appointed or allowed; except that costs of any application to extend the time and of any order made on the application shall be borne by the parties making the application, unless the Court shall otherwise order.” Under Order 8 rule 1(2) of the Civil Procedure Rules , a defendant is required to file a written statement of defence within fifteen days after service of summons, unless the Court extends the time. The prescribed period is ma ndatory; however, the Court has discretion to enlarge the time where sufficient cause is shown. The discretion to enlarge time must be exercised judicially, having regard to the circumstances of each case. The principal consideration is whether the Applicant has shown sufficient cause for the failure to comply with the prescribed period. In exercising that discretion, the Court must also have regard to the constitutional requirement to administer substantive justice without undue regard to technicalities of procedure. In Hadondi Daniel v Yolam Egondi, Court of Appeal Civil Appeal No. 67 of 2003, the Court held that: “It is trite law that time can only be extended if sufficient cause is shown. The sufficient cause must relate to the inability or failure to take necessary steps within the prescribed time. It does not relate to taking a wrong decision. If the applicant is found to be guilty of dilatory conduct, the time will not be extended.” The expression “sufficient cause” is not defined in the Civil Procedure Rules. Its meaning has, however, been considered in several decisions. In The Registered Trustees of the Archdiocese of Dar es Salaam v The Chairman Bunju Village Government & Others , as quoted in Gideon Mosa Onchwati v Kenya Oil Co. Ltd & Another [2017] eKLR, it was held that: 7 170 180 190 “It is difficult to attempt to define the meaning of the words ‘sufficient cause’. It is generally accepted, however, that the words should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want of bona fides, is imputed to the appellant.” In the same authority, reliance was placed on the Supreme Court of India decision in Parimal v Veena (2011 INSC 110), in which “sufficient cause” was explained as requiring consideration of whether the party had acted negligently, lacked bona fides, failed to act diligently or remained inactive, while emphasising that the facts and circumstances of each case must provide a sufficient basis for the Court to exercise its discretion judicially. The authorities therefore demonstrate that whether sufficient cause has been shown is a question to be determined upon the particular facts and circumstances of each case. Relevant considerations include the explanation for the delay, the conduct of the party seeking an extension, whether the failure to comply was occasioned by negligence or lack of diligence, and whether refusing the extension would occasion injustice. The Court must ultimately balance the need for compliance with procedural rules against the broader objective of determining disputes on their merits and in accordance with the ends of justice. - Bishop Jacinto Kibuuka v The Uganda Catholic Lawye rs Society & 2 Others, Miscellaneous Application No. 696 of 2018, and Kyegegwa District Local Government v Aharikundira, Miscellaneous Application No. 25 of 2022 [2023] UGHC 14 (23 January 2023). In the present case, the 1 st Applicant states in paragraphs 5 and 6 of the affidavit in support that the Applicants were never served with summons and only became aware of the suit when a friend heard the 1st Applicant’s name mentioned in Court. The Respondent disputes this account and, in paragraph 4 of his affidavit in reply, deposes that a court process server contacted the 1 st Applicant on mobile number 0704431454 and informed him of the summons, but that the 1st Applicant stated that he was not interested in court matters; as regards the 2nd Applicant, the Respondent states that the process server contacted him on mobile number 0701896063, but the number was switched off, and that it was on that basis that the Respondent applied for and obtained an order for substituted service. 8 In rejoinder, however, the 1st Applicant states that the mobile number 0704431454, which the process server claims to have called, is registered in the name of Sharifah Nabasenya, whereas his own mobile number is 0709431454. Counsel for the Respondent submits that substituted service, once duly ordered and effected, has the same legal effect as personal service. 200 210 220 I accept that proposition to the extent that, where the requirements for substituted service have been properly satisfied, service effected pursuant to the order is valid and binding. The question in the present case, however, is whether the circumstances preceding the order for substituted service justified resorting to that mode of service and, if so, whether the substituted service was properly effected so as to constitute effective service of the summons upon the Applicants. Order 5 rule 18 of the Civil Procedure Rules permits substituted service where th e defendant cannot, for sufficient reason, be served in the ordinary manner. The rule therefore presupposes that reasonable efforts have first been made to effect personal service and that personal service cannot reasonably be effected before substituted service is resorted to. In Emmaus Foundation Investments Uganda Limited v Quirino Okello and Another, Civil Suit No. 146 of 2019; Miscellaneous Application No. 1307 of 2022 [2026] UGHCLD 42 (23 February 2026), Kaahwa J, relying on MB Automobiles v Terrenzi (1970) EA 446, observed that substituted service should only be resorted to after reasonable efforts to effect personal service have failed. Applying that principle to the evidence before me, I am not satisfied that the process server in fact contacted t he 1st Applicant. The mobile number stated in the affidavit of service differs from the number which the 1st Applicant states is his, and the evidence further shows that the number allegedly contacted is registered in the name of a different person. In respect of the 2nd Applicant, the evidence merely shows that the number called was switched off. There is no evidence of any further attempt to contact him or otherwise effect personal service. 9 In the circumstances, I am not satisfied that all reasonable efforts to effect personal service upon the Applicants had been exhausted before substituted service was resorted to. Although an order for substituted service was obtained and service was subsequently effected pursuant to that order, the evidence now before the Court raises doubt as to whether the summons actually came to the attention of the Applicants. 230 240 Substituted service is a recognised mode of service under our civil procedure. Its purpose, however, is to bring the proceedings to the attention of the person to be served and thereby afford that person an opportunity to respond. Service should not, therefore, be regarded as effective merely because a particular mode of service was authorised and followed in form. The Court must also consider whether, in the circumstances, the service was sufficient to achieve its purpose. In the present case, the evidence raises doubt as to whether the Applicants were in fact br ought to the notice of the proceedings through the substituted service. I therefore find that the Applicants have demonstrated sufficient cause for their failure to file their defence within the prescribed time. This warrants the exercise of this Court’s discretion to enlarge the time within which the defence may be filed. The primary concern of this Court is the administration of substantive justice. Article 126(2)(e) of the Constitution of the Republic of Uganda, 1995, requires Courts to administer substantive justice without undue regard to technicalities, mistakes or errors of procedure. This principle was recognised in Banco Arabe Espanol v Bank of Uganda [1999] 2 EA 12, where the Court emphasised that procedural technicalities should not be applied in a manner that defeats a party’s right to a fair hearing. In the present case, the Applicants have demonstrated sufficient cause for their failure to file their defence within the prescribed period. In particular, they have shown that they were not made aware of the suit through effective service of the summons. Their failure to file a defence was therefore not shown to have resulted from deliberate inaction or disregard of the Court’s process. The principle that disputes should ordinarily be determined on their merits is also relevant in determining whether the Applicants should be shut out of participating in the 10 250 260 270 proceedings because they failed to file their defence within the prescribed time. In Kemigisa v The Registered Trustees of the Orthodox Church of Uganda, HCT-01-LD-MA- 0055-2025 [2025] UGHC 1167 (6 October 2025), Wagona J, relying on Re-Christine Namatovu Tebajjukira [1992–1993] HCB 85, cited the principle that the administration of justice ordinarily requires the substance of disputes to be investigated and determined on their merits, and that errors or procedural lapses should not necessarily deprive a litigant of the opportunity to pursue his or her rights. In the present case, the Applicants have now come before the Court and demonstrated their willingness to participate in the proceedings. The suit is still at the scheduling stage and has not proceeded to trial. The evidence before the Court shows that the summons did not effectively come to the Applicants’ attention, and there is no basis to find that their failure to file a defence was deliberate, negligent, or intended to obstruct the proceedings. Further, the Applicants have placed before the Court their intended Written Statement of Defence. Upon perusal of the proposed defence, I find that it raises matters that require determination at an inter partes hearing and should not, at this stage, be shut out without allowing the Applicants to present their case. The Respondent will have an opportunity to respond to the defence and to present his own case at the trial. In these circumstances, I find that the interests of justice are better served by allowing the Applicants to participate in the proceedings and by having the dispute determined on its merits. I am therefore satisfied that the Applicants have shown sufficient cause to warrant enlargement of the time within which to file their Written Statement of Defence. Issue No. 1 is accordingly answered in the affirmative. What remedies are available to the parties? Having found sufficient cause for enlargement of time, this Court, under sections 96 and 98 of the Civil Procedure Act and Order 51 Rule 6 of the Civil Procedure Rules, allows the application and makes the following orders: 1. The Applicants are granted leave to file their Written Statement of Defence in Civil Suit No. 22 of 2025 out of time. 11 280 290 2. The Applicants shall file and serve their Written Statement of Defence within seven (7) days from the date of this Ruling. 3. The Respondent shall file and serve a reply, if any, within seven (7) days from the date of service of the defence. 4. The Applicants shall file and serve their trial bundles and witness statements within seven (7) days thereafter. 5. The parties shall file a joint scheduling memorandum within thirty (30) days from the date of this Ruling. 6. The case is accordingly fixed for mention on the 04th day of February 2027, and all parties should have complied with all the directives of the Court by that date. 7. The costs of this application shall be in the cause. I so order. Delivered at Mpigi this 05th day of October 2026. HON. LADY JUSTICE DEEPA VERMA ACTING JUDGE