Automated Summary
Key Facts
The plaintiffs filed a suit transferred to the Commercial Court, which abated due to failure to take out summons for directions within 28 days after the last defense (October 12, 2022 by the third defendant). The court found a three-year delay and no follow-up on substituted service for the first defendant. Additionally, the second defendant's defense, filed five days late, should have been struck out.
Deceased Name
Livingstone Nsubuga
Issues
- The court addressed the 2nd defendant's out-of-time written statement of defense (25th October 2022) under Order 8 Rule 1(2) of the CPR. Applying the principle 'he who comes to equity must come with clean hands,' the court found the defense should have been struck out, given the plaintiffs' own procedural failures, including delayed summons for directions and substituted service.
- The court determined whether the instant suit abated under Order 11A Rules 1(2) and 6 of the Civil Procedure Rules (SI 71-1) as amended, following the plaintiffs' failure to take out summons for directions within 28 days of the last reply to pleadings (12th October 2022). The ruling emphasized that the 3-year delay in issuing fresh summons post-transfer to the Commercial Court violated procedural timelines, leading to abatement.
Holdings
- The court found that the instant suit abated under Order 11A Rule 1(6) of the Civil Procedure Rules as amended, due to the plaintiffs' failure to take out summons for directions within 28 days from the last reply to pleadings (12th October 2022). The 28-day period expired, and no summons were issued until 12th May 2025, three years later.
- The court determined that the 2nd defendant's written statement of defence, filed on 25th October 2022, was submitted five days late under Order 8 Rule 1(2) of the Civil Procedure Rules as amended. This late filing should have been struck off the record, following the principle of 'he who comes to equity must come with clean hands.'
Remedies
- The court determined that the 2nd defendant's written statement of defence, filed on 25th October 2022, should have been struck out as it was submitted five days beyond the 15-day requirement under Order 8 Rule 1(2) of the Civil Procedure Rules, citing the case of Simon Tendo Kabenge vs Barclays Bank Uganda Limited.
- The court ruled that each party shall bear their own costs in this matter.
- The court found that the instant suit abated as the plaintiffs failed to take out summons for directions within 28 days from the last reply to the pleadings, as required by Order 11A of the Civil Procedure Rules.
Legal Principles
- The court invoked the equity principle 'he who comes to equity must come with clean hands' to address the 2nd defendant's late filing of their written statement of defence. This principle was used to argue that the defendant's procedural non-compliance should not be tolerated.
- The court applied Order 11A Rules 1(2) and 6 of the Civil Procedure Rules, which mandate that a suit abates if the plaintiff fails to issue summons for directions within 28 days of the last reply to pleadings. This procedural rule aims to expedite trials and prevent unnecessary delays.
Precedent Name
- Simon Tendo Kabenge vs Barclays Bank Uganda Limited
- Phelps v. Button
- Kampala Associated Advocates vs Katamba Ssemakula
- Rashida Abdul Karim Hanali & Mohamed Allibhai Vs Suleiman Adrisi
- Gama Distillers Ltd v. Bikanza Ezra
- Kalemesa Samuel Wilson vs Kaggwa Christopher Chris
Executor Name
Naiga Margret
Cited Statute
Civil Procedure Rules
Executor Appointment
Administrator of the estate of the late Livingstone Nsubuga
Judge Name
Dr. Ginamia Melody Ngwatu
Passage Text
- In terms of Order 11A rule 1(6) of the Civil Procedure Rules SI 71-1 as amended this suit abated as no summons for directions were taken out by the plaintiffs within 28 days from the last reply to the pleadings. The last valid reply to pleadings were filed on 12th October 2022 by the 3rd defendant. 3 years is too long a period; and the plaintiffs cannot expect the opportunity for the filing of pleadings to indefinitely stay open given their failure to serve the 1st defendant.
- In light of the foregoing, it is the finding of this court that the instant suit abated and that the written statement of defence filed by the 2nd defendant out of time ought to have been struck out having been filed five days outside the stipulated period in the Civil Procedure Rules, SI 71-1, as amended.
- The plaintiffs also failed to diligently follow-up and ensure that fresh summons were issued to be served via substituted service on the 1st defendant... No evidence was presented by the plaintiffs to prove that steps were taken to follow-up on issuance of the fresh summons by the court Registrar.