ISSUE AND SERVICE OF SUMMONS

Summons
In simple terms a summons is an order to be present.
In relation to civil procedure, summons is an official order from court demanding
that a defendant or respondent attends court to answer a claim or to give
evidence.
The summons must bear the sign and seal of court. (Order 5 Rule 1(5)). This
requirement is mandatory (Kaur v City Auto Mart [1967] EA 108). Failure to
comply with it renders the summons a nullity.
NB; In practice, the advocate draws up the summons and extracts them on behalf
of court.
Service of Summons
Where a suit has been duly instituted, the defendant shall be served in the
manner prescribed to enter an appearance and answer the claim.
This is according to Section 20 of the Civil Procedure Act Cap 71, “Where
a suit has been duly instituted, the defendant shall be served in the
manner prescribed to enter an appearance and answer the claim.”
The above-mentioned procedure is meant to notify the defendant or the
respondent of the court’s jurisdiction over them and also their obligation to
respond to the matter before court.
According Order 49 Rule 2, “All orders, notices and documents required by
the Act to be given to or served on any person shall be served in the manner
provided for the service of summons.

Summons usually refers to and accompanies a plaint. This is stated in Order 5 rule
1 of the CPR, “Every summons shall be accompanied by a copy of the plaint,
a brief summary of the evidence to be adduced, a list of witnesses, a list
of documents and a list of authorities to be relied on; except that an additional
list of authorities may be provided later with the leave of court.”
In the case of Craig v Kanssen [1948] 1 KB 256, an order of enforcement of a
judgment was obtained against the defendant. However, the defendant had not
been served with summons. In an application to set aside the judgment, court
held that failure to serve process where service of process is required renders null
and void an order made against the party who should have been served. Goddard
LJ stated that, “it is beyond question, that failure to serve process where service
of process is required goes to the root of our conceptions of the proper procedure
in litigation.”
Effect of Irregularities in the court process
What happens in a situation where court processes are not signed and sealed by
the responsible officers.
The case of the Tommy Otto v Uganda Wildlife Authority HCCS No. 208/2002
clearly answers this question. In this case preliminary objections were raised that
the hearing notice issued for the day’s hearing was neither signed by the registrar
nor dated and therefore the matter was improperly before court. Court held that
a hearing notice is issued by the court and the plaintiff cannot be held liable for7
the negligence of the staff in the court registry to have issued an undated and
unsigned hearing notice. That despite the said effects, the hearing notice served
the purpose for which it was intended and both parties were before court. The
said defects could therefore be ignored since they did not cause any injustice to
any of the parties.
Who can serve court process or summons
Firstly, Order 5 Rule 7 clearly sets out the people who can effect service of
summons onto the defendant or the respondent.
“1)Where the court has issued a summons to a defendant—
(a)it may be delivered for service—
(i)to any person for the time being duly authorised by the court;
(ii)to an advocate or an advocate’s clerk who may be approved by the court
generally to effect service of process; or
(b)it may be sent by post or messenger to any magistrate’s court having
jurisdiction in the place where the defendant resides.
The court process server is required to swear an affidavit of service to the effect
that he or she effected service and under what circumstances the service was
effected.
To whom are summons served
 For starters, Order 5 Rule 1(4) states, “A defendant to whom a summons
has been issued under subrule
(1) of this rule may file a defence—
(a)in person;
(b)by a recognised agent; or
(c)by an advocate duly instructed. Order 3 rule 4 creates the presumption
that service of process on an advocate of any party or process left at the
advocate’s office or usual residence is duly communicated and made
known to the party whom the advocate represents (Bendino v Kamanda
[1977] HCB 311.
 Service must be made on the defendant in person. Proper effort must be
made to effect personal service, but if it not possible then service may be
made to an agent e.g wife or advocate (Kiggundu v Kasujja [1971] HCB
164.)
Order 5 Rule 10 states that, “Wherever it is practicable, service shall be made
on the defendant in PERSON, unless he or she has an agent empowered
to accept service, in which case service on the agent shall be sufficient.”
 Where the defendant cannot be found, summons can be served on his
agent or adult member of his or her family. Order 5 Rule 13 states that,
“Where in any suit the defendant cannot be found, service may be made
on an agent of the defendant empowered to accept service or on
any adult member of the family of the defendant who is residing with
him or her.”
In the case of Erukana Kavuma v Metha (1960) EA 305, the process server
was told that the defendant was in India. He immediately effected service
on the defendant’s wife and default judgment was entered. The judge was
considering Order 5 Rule 13 of the Civil Procedure Rules which states that
 when in any suit the defendant cannot be found, service can be made on an
agent or an adult member of the family residing with him. The question was
whether the defendant could not be found. The judge said that it was
inadequate ground for saying that the defendant could not be foundin the
absence of any enquiry as to the defendant’s address in the country he had
gone to, the duration of his stay and the likely dates of his return. The judge
said that without these one couldn’t say that the defendant cannot be
found. The exparte decree was set aside.

NB; Where the person served refuses to accept the document, personal
service will nevertheless be deemed to have been effected provided the
nature of the document was made known to him.

 Substituted Service
According to Order 5 Rule 18(1), the CPR states that, “Where the court is
satisfied that for any reason the summons cannot be served in the
ordinary way, the court shall order the summons to be served by
affixing a copy of it in some conspicuous place in the courthouse,
and also upon some conspicuous part of the house, if any, in which the
defendant is known to have last resided or carried on business or
personally worked for gain, or in such other manner as the court thinks
fit.”
Sub rule 2 states as follows, “Substituted service under an order of the
court shall be as effectual as if it had been made on the defendant
personally.”

The purpose of substituted service was emphasized in the case of

Satvinder v Saridner Kaur HC Div C No. 2 of 2002 as follows, “ I must
observe that substituted service is granted with a purpose or goal to
achieve. It is granted when court is satisfied that there exists a practical
impossibility of actual service, that the method of substituted service asked
by the plaintiff/petitioner is one which will in all reasonable probability, if
not certainty, be effective to bring knowledge of the plaint/petition to the
respondent/ defendant who is within the jurisdiction of court. The primary
objective is that the defendant should receive knowledge of the existing
 suit against him or her and thereby eliminate the violation of his rights
which requires that a person shall not be condemned unheard.”

It should be noted that substituted service only applies to defendants or

respondents within jurisdiction. Order 5 Rule 4, “No party shall be ordered
to appear in person unless he or she resides—
(a)within the local limits of the court’s jurisdiction; or
(b)without those limits but at a place less than fifty miles or, where
there is a railway or steamer communication or other established
public conveyance for five-sixths of the distance between the place
where he or she resides and the place where the court is situate, less than
two hundred miles distance from the courthouse.
If a defendant or respondent is outside the jurisdiction of court, Order 5
rule 22 applies.

Proof of Service
 Acknowledgement of receipt:
The law and practice are that the person served or who receives service on
behalf of the defendant should sign on the original court process
acknowledging receipt of the process. Order 5 Rule 14, “Where a
duplicate of the summons is duly delivered or tendered to the
defendant personally or to an agent or other person on his or her behalf,
the defendant or the agent or other person shall be required to
endorse an acknowledgment of service on the original summons;
except that if the court is satisfied that the defendant or his or her agent
or other person on his or her behalf has refused so to endorse, the
court may declare the summons to have been duly served.

In Kasirivu & 4 others v Bamurangye & 3 others [2009] 1 HCB 42, it was
held that where a duplicate or copy of summons / notice is duly delivered
and tendered to the defendant or his lawyer, they shall be required to
endorse it. This is mandatory an noncompliance means that service hasn’t
been effected.
  Affidavit of Service
Order 5 Rule 16, “ The serving officer shall, in all cases in which the
summons has been served under rule 14 of this Order, make or annex or
cause to be annexed to the original summons an affidavit of service
stating the time when and the manner in which the summons was served,
and the name and address of the person, if any, identifying the person
served and witnessing the delivery or tender of the summons.”
In the case of Edson Kanyabwera v Pastori Tumwebaze [2001-2005] HCB
98, The Supreme Court held that an affidavit of service has to be sworn
where the summons have been duly served equally applies to hearing
notices. This is mandatory and the absence of the affidavit of service of the
hearing notice on record inevitably leads to the conclusion that the
defendant was not properly served with the hearing notice before the suit
was heard in his absence.

Salient features of the Affidavit of Service;

 A statement to the effect that the deponent is a process server of the
court.
 A statement to the effect that the defendant or respondent was
personally known to him or her at the time of effecting the service.
 A statement to the effect that the defendant not being known to him
or her, another person accompanied the process server and pointed
out the person to be served.
Failure to record the name and address of the person identifying the person to be
served renders the affidavit of service incurably defective. (M B Automobiles v
Kampala Bus Service [1966] EA 480)
In the event that the defendant denies having been served, the onus is on him or
her to prove that. (Busingye and ors v William Katotsire [2001 – 2005] HCB 108.
Illiteracy is not a ground for ignoring summons. If the defendant or the
respondent cannot understand English, the official language of court, then they
should take it to the local leaders for interpretation. (Magera v Kakungulu [1976]
HCB 289).
Time within which service of court process should be effected.
 Service of Summons and Court Process must comply with the time and day
of service as recommended by the CPR.
Order 51 Rule 9 states as follows,

(1) Service of pleadings, notices, summonses, other than summonses

on plaints, orders, rules and other proceedings shall normally be effected
before the hour of six in the afternoon, except on Saturdays when it
shall normally be effected before the hour of one in the afternoon.

(2) Service effected after the hour of six in the afternoon on any
weekday except Saturday shall, for the purpose of computing any period of
time subsequent to the service, be deemed to have been effected on
the following day; service effected after the hour of one in the
afternoon on Saturday shall for the like purpose be deemed to have been
effected on the following Monday.
 Order 5 Rule 1(2) states, “Service of summons issued under sub rule (1) of
this rule shall be effected within twenty-one days from the date of issue;
except that the time may be extended on application to the court, made
within fifteen days after the expiration of the twenty-one days, showing
sufficient reasons for the extension.”
 Order 5 Rule 1(3) states, “Where summons have been issued under this
rule, and—
(a)service has not been effected within twenty-one days from the date of
issue; and
(b)there is no application for an extension of time under sub rule(2)
of this rule; or
(c)the application for extension of time has been dismissed, the suit shall
be dismissed without notice.”

The application for extension of time must be for sufficient reasons like
inability to serve the summons.
Service on Government;
All documents to be served on the Government for the purpose of or in
connection with civil proceedings shall be served on the Attorney General (Article
250 (2) of the 1995 Constitution of Uganda and Section 11 of the Government
Proceedings Act.)
Service on the Attorney General shall be effected by delivering or sending the
summons to the Attorney General’s chambers and shall not be deemed complete
until the Attorney General or another officer of the government entitled to
practice as an advocate in connection with the duties of his office has
acknowledged service of summons (Rule 5 of the Civil Procedure (Government
Proceedings) Rules. Service is done at the chamber registry where clerks receive
documents and they return the copies to you duly stamped with a registry stamp.
The time prescribed for the Government to file a defence is thirty days.
Service on Corporations / Firms;
A document may be served on a company by personally serving it on an officer of
the company, by sending it by registered post to the registered postal address of
the company in Uganda or by sending an email to the known electronic address or
by leaving it at the registered office of the company (Section 274 of the
Companies Act No. 1 of 2012).
Section 258 of the abovementioned Act provides that any process or notice
required to be served on a foreign company shall be sufficiently served if
addressed to any person whose name has been delivered to the Registrar under
the Act left at or sent by registered post to the address which has been so
delivered.
Where the suit is against a corporation the summons may be served on the
secretary or any director or other principal officer of the corporation or by leaving
it or sending it by post addressed to the corporation at the registered office, of if
there is no registered office, then at the place where the corporation carries out
business (Order 29 rule 2 an Jaffer v Ssegane [1972] ULR 108.
Service on a Partnership;
Where persons are sued as parties in the name of their firm, the summons shall
be served; Upon any one or more of the partners or at the principal place at
which the partnership business is carried on within Uganda upon any person
having, at the time of service, the control or management of the partnership
business there or as the court may direct. Such service will be deemed will be
deemed to be good service upon the firm sued whether all or any of the partners
are within Uganda (Order 30 rule 3).
Service by Electronic means;
This is another mode of service which the courts can allow any party under “such
manner as the court thinks fit.” This therefore means a party can ask court for
alternative service by email or facebook or twitter or whatsapp. This is just an
alternative means of service of physical personal service cannot be effected.

Service by post;
Summons is sent by post to the defendant at usual and last known place of abode
by registered mail.
Service on person in prison;
Summons shall be served on officer in charge of prison (Order 5 rule 19)
Service public officer or soldier;
For a public officer, it shall be sent to the head office in which he is employed.
For the soldier, it shall be served on the commanding officer (Order 5 rule 20)

Rule 22 – 26, service outside court

Balmart Logistics v Scarce Commodities Ltd M.A 274 of 2016; n 1/9/2016, the
plaintiff sought and was granted leave to effect service of court process upon the
defendant, stated to be a Kenyan Company through substituted means. They were
permitted to advetise in the East African Newspaper, which is deemed to be a newspaper
with regional circulation, and the Daily Nation which circulates in Kenya. The order was
executed when notices of the summons appeared in the East African Newspaper of
17/9/2016 and the Daily Nation of 6/12/16 respectively.

Substituted service is provided for under O.5 rr 18 CPR. I note however that that mode of
service falls under the general title of “issue and service of summons”. In my view, it was
meant to cater for circumstances where ordinary service upon a defendant within
jurisdiction deemes impossible. Such service entails that the summons are placed at a
conspicuous place on the defendant’s known residential or work address. My understanding
of the end phrase “….or in such other manner that the court thinks fit”, was meant to be
synonymous with that service in general. It would be stretching it too far, to allow
substituted service, the type envisaged in this rule to fairly cater for defendants resident
outside jurisdiction.

Having said so, and noting the identity and nationality of the defendant, the correct law
followed should have been service upon a foreign common wealth national. Counsel
mentioned in his submissions that the application for substituted service was sought under
Rule 18 but argued under Rules 22, 24 and 26, and that it was for that reason that the
Registrar allowed the application ordered for service in widely regional and country specific
media. With due respect I see nothing in the counsel’s submissions made on 1/9/16 to
support that argument.

The above notwithstanding, counsel’s submissions, I deem that the affidavit in support of
the application for substituted service satisfied the requirements of the correct procedural
law. Sufficient detail was given of the plaintiff (or their agent’s) efforts to tract down the
defendant in Uganda. It was stated how Mr Kalyango the assigned process server came to
know of the defendant’s nationality and postal address after their efforts to serve a known
agent in Uganda failed. The defendant being a Kenyan company is deemed to be a
“commonwealth ‘citizen”.

Under Order 5 rr 26, where leave to serve out of jurisdiction has been granted, the Court has
a discretion to determine the actual mode of service.

In my view, both the Daily Nation and East African Newspaper are widely circulating
newspapers in the Republic of Kenya. An advert of the notice in either paper would be
effective service against the defendant, only limited if they were ever to raise up an
objection to it.

In summary I agree with counsel Kawesi Kakooza that service of summons upon the
defendant, a Kenyan company was effective.