Nsumba v Semambo (Miscellaneous Application 2340 of 2024) [2024] UGHCLD 243 (25 October 2024)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISCELLANEOUS APPLICATION NO. 2340 OF 2024 ARISING FROM MISCELLANEOUS CAUSE NO.043 OF 2024

NSUMBA BENEDICT ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS

JULIET SEMAMBO ::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.

*Introduction:*

- 1. This was an application by notice of motion brought under Section 98 of the Civil Procedure Act, Section. 177(Section 161 of the revised laws) of the registration of titles Act Cap. 240, Order 52 rules 1& 2 of the Civil Procedure Rules (CPR) for orders that: - i) Consequential order doth issue compelling the respondent to remove the caveat lodged on the 4th of July, 2023 vide instrument No. WBU00363678 on land comprised in Busiro Block 280 Plots 722-775 land at Kawoko, Wakiso District.

*ii)* Costs of the application be provided for.

*Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by the applicant which briefly states as follows; - i) That in the year 2021, he purchased land comprised in Busiro Block 280 Plots 722-775 land at Kawoko, Wakiso district from a one Kakembo John the administrator of the estate of the late Kezekiya Yosiya Sensalire. - ii) That upon the said purchase the registered proprietor duly executed a transfer instrument in favor of the applicant. - iii) That before the said purchase, I conducted a search at the land registry and the land was free from any encumbrances. - iv) That in the course of concluding the said transaction, the registered proprietor and I discovered that the respondent had unreasonably lodged a caveat on the suit land on the 4th of July 2023 vide instrument no. WBU-00363678 - v) That I have since obtained an order for the respondent to bring an action justifying the caveat she lodged on the suit land within 60 days from the date of the ruling failure of

which this honorable court will proceed to vacate the said caveat.

- vi) That I have been informed by my lawyers that the above order had neither been appealed or set a side by any court of competent jurisdiction. - vii) That I have been informed by my lawyers which information I verily believe to be true that the 60 days from the date of the order have since lapsed. - viii) That I have been informed by my lawyers that this honorable court can vacate the said caveat by issuing a consequential order that the same be vacated.

*Representation;*

3. The applicant was represented by Counsel Mugoya Martin of M/S M. Mugoya & Co. Advocates whereas there was no representation from the respondent. Only Counsel for the applicant proceeded by written submissions which I have considered in the determination of this application.

*Issues for determination;*

- i) Whether the applicant is entitled to the consequential orders in the instant application? - ii) What remedies are available to the parties?

*Determination and resolution of the issues;*

- 4. I have carefully perused the affidavit in support of the application and the submissions of Counsel for the applicant. - 5. Before I proceed with the merits of the application, upon perusal of the physical file I bring it to the attention of the applicant that there is no any affidavit of service on court record indicating that indeed the application was served onto the respondent. - 6. The requirement of effective service of court process is mandatory under the civil procedure rules and where service is effected as provided for under the rules an affidavit of service should be filed as proof of service. - 7. Courts of law have required strict compliance with service of court process to avoid instances where courts are to proceed without the involvement of other parties in the proceedings. Drawing reference to the decision in 336 UTC vs Katongole and anor (1975) HCB

at page 336 court held that a proper effort must be made to effect personal service but if its not possible may be service on an agent.

- 8. From the decisions by court, I am persuaded to take the similar strict requirement for compliance with effecting service of court process onto the parties to the suit. - 9. Even in situations where service seems difficult, one attempt is not enough at least a second attempt with clear explanation on how it was done should be effected, service of court process is not mere casual practice to be hurriedly or incompetently done by parties to suits. - 10. The applicant in the instant application does not adduce any proof of service of the court process onto the respondent or through her agents. - 11. I am of the view that the instant application be served onto the respondent and proof of service should be filed to court such that this court acts in compliance with the rules of service as stipulated in the civil procedure rules. - 12. I therefore find no need to proceed with the merits of the application and the same is hereby for dismissed for non-service onto the respondent with no orders as to costs.

I SO ORDER.


NALUZZE AISHA BATALA

JUDGE

25th/10/2024

Delivered Electronically via ECCMIS on the 25th of October

2025.