Kisuule and Another v Nantaaya and Another (Civil Suit No. 1107 of 2021) [2023] UGHCLD 46 (27 February 2023)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

LAND DIVISION

CIVIL SUIT NO. 1107 OF 2021

1. MIRIAM SARAH KISUULE

2. CHRISTINE NANZIRI

1. ABUUSU NANTAAYA JOSEPHINE

(suing as administrators of the estate of the late Kisuule Zerubaberi)............... PLAINTIFFS

VERSUS

$\mathsf{S}$

$\mathbf{1}$

2. THE COMMISSIONER LAND REGISTRATION....................................

Ruling on the Preliminary Objection:

- 15 This objection has been rai hersed by counsel Arnold Sekiwano representing the plaintiffs in this suit. The gist of his objection is that an order was made by the Assistant Registrar striking out the 1st defendant's Written Statement of Defence. - He thereupon ordered the matter to proceed *exparte* against her. That in light of the undischarged 20 order, the defendants were improperly before court. The second point of objection is based on the oral submission made in this court by counsel for the defendant by which leave was sought to file a WSD out of time, after the one filed earlier was struck off. - A formal application, MA No. 237 of 2023 according to counsel for the 1st defendant had been 25 filed on ECCMIS awaiting validation and directives of court to effect service to the plaintiffs as respondents in that application.

The objections which were the subject of these preliminary proceedings had been raised before the court presided over by the Assistant Registrar, vide: MA NO. 0869 of 2022. The prayers sought in that application were that the WSD be struck out and that leave be granted to set down the suit for hearing and for the hearing to proceed *exparte*.

Jule of

The court in granting the application on 8th November, 2022 ruled that the WSD had been filed in time but that the defence was evasive and contravened the provisions of Order 6 rule 10 of the CPR.

- $\mathsf{S}$ Order 6 rule 30 of the CPR under which the application was made states that court may strike out any pleading on the ground that it discloses no reasonable cause of action or answer and may order the suit to be stayed or dismissed or judgment to be entered accordingly as may be just. Under Order 6 rule 31 (2) of the CPR all such orders are appealable as of right. - 10 While I am inclined to agree with the learned counsel that there was an order for the matter to proceed *exparte* which the 1st defendant did not challenge, the justice of the case however demands that the matter be heard inter party as the omission or errors on the part of counsel should not to be visited on the litigant. - 15 The plaintiff shall file a rejoinder the WSD within two weeks from date of delivering this ruling. MA No. 237 of 2023 is accordingly overtaken by events.

Costs in the cause.

Alexandra Nkonge Rugadya Judge 27th February, 2023.

Detiverd by evail<br>Autorge<br>527/2/2023

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