Court name
Commercial Court of Uganda
Judgment date
29 September 2017

MK Financiers Ltd v Natukunda (HCT-00-CC-MA-2015/797) [2017] UGCommC 112 (29 September 2017);

Cite this case
[2017] UGCommC 112

THE REPUBLIC OF UGANDA

 IN THE HIGH COURT OF UGANDA AT KAMPALA

COMMERCIAL DIVISION HCT-00-CC-MA-0797-2015

(Arising from Civil Suit No. 777 of2014)

MK FINANCIERS LIMITED.................................................. APPLICANT

VERSUS

NATUKUNDA ALICE.......................................................... RESPONDENT

RULING

This application arises from civil suit No. 777 of 2014 where the applicant herein sued the respondent for recovery of sh. 63,500,000= for breach of contract. This was a summary suit brought under specially endorsed plaint under 0.36 of the Civil Procedure Rules (CPR).

On 9/2/2015 the suit was dismissed for want of prosecution. The applicant filed M.A. No. 142 of 2015 for reinstatement of the suit, and it was also dismissed, but with a rider that the applicant was free to file an appropriate application for reinstatement. Hence this application.

The application was brought way of notice of motion (ex parte) under 0.9 rr. 17 and 18, and O. 52 r. 1 CPR, and S 98 of the Civil Procedure Act. The reason the previous application for reinstatement was dismissed was because the applicant deposed to have served the respondent with the court process, and that an affidavit of service in that respect was attached. However, the copy which was attached was for another suit. The judge found that there was therefore no affidavit to support the applicant’s contention that he indeed served the respondent with pleadings, but that there was failure to apply for leave to appear and defend. The judge also found that the application for reinstatement was brought under the wrong law - 0.37 CPR, which deals with Originating Summons. The judge however granted the applicant leave to file an appropriate application.

The suit was filed on 29th October 2014 together with an affidavit in support as required by law. Summons to apply for leave to appear and defend the suit were issued on 30th October. An affidavit of service by one Makanga Ben, a court process server was attached to this application. In that affidavit, which unfortunately was missing from the file in the n^in suit, the respondent was served with court process the same day of 30Ih October 2014. That affidavit was filed on 14th October 2014.

The absence of the affidavit of service on the respondent was apparently one of the reasons for the dismissal of the main suit. O. 9 r. 18 CPR under which this application was brought gives court the power to reinstate, a suit dismissed for non appearance of the parties. From the above, I found this to be a proper case for reinstatement of the suit, and I so order.

The civil suit No.777 of 2014 is hereby reinstated. The applicant shall effect fresh service on the respondent within 10 days after the reading of this ruling, and thereafter the suit shall proceed following the usual - lawful process. As the respondent played no part in these proceedings, I order that the applicant shall bear the costs of his application.

 

RUGADYA ATWOOKI

JUDGE

29/09/2017

court: The Registrar of the Commercial Division of this court shall read this ruling to the parties.

RUGADYA ATWOOKI

JUDGE

29/09/2017

 

 

 

 

 

 

 

 

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