Suing a Deceased Person Renders Proceedings a Nullity, High Court at Wakiso Rules.

Waboga David
Oct 5
5 min read

Facts

The Applicant, Kirunda Emmanuel, filed a Notice of Motion under Order 24 Rules 3 and 4 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act seeking a declaration that Civil Suit No. 530 of 2025 had abated following the death of the Plaintiff, Byakumpi Emmanuel, on 6th June 2024.

He argued that the deceased was the only active plaintiff and that no substitution had been made within the statutory period.

The Respondent’s side opposed the application through an affidavit filed by Luggya Michael, one of the surviving co-plaintiffs, who claimed an interest in continuing the matter.

Issues

Whether the application was competent, given that it had been filed against a deceased person.
Whether the main suit had abated following the death of the plaintiff.

Legal Representation

Applicant was represented by Magala Mutyaba & Co. Advocates
Respondents were represented by Muhumuza-Kiiza Advocates & Legal Consultants

Submissions

Applicant’s Submissions

The Applicant contended that the suit abated because Byakumpi Emmanuel, the primary plaintiff, died, and no legal representative was substituted within the statutory period. They argued that the surviving co-plaintiffs were not actively involved, making Byakumpi the sole effective plaintiff. The Applicant invoked Article 126(2)(e) of the Constitution, urging the court to prioritize substantive justice over procedural technicalities.

Respondent’s Submissions

Luggya Michael, a co-plaintiff, opposed the application, but the court disregarded his affidavit and submissions due to his lack of locus standi.

Court's Findings

1. Lack of Locus Standi for the Opposing Affidavit

The court first addressed the opposition to the application filed by Luggya Michael, one of the surviving co-plaintiffs in the main suit. It found that his affidavit in reply and related submissions should be disregarded entirely because he was not a named respondent in the application and had not demonstrated any legal authority to act on behalf of the deceased's estate.

2. Fatal Defect: Institution of Proceedings Against a Deceased Person

The court found that the application was incompetent because it named Byakumpi Emmanuel—a confirmed deceased individual—as the respondent. The court emphasized that a deceased person has no legal personality and cannot be sued, rendering the entire proceeding void ab initio (from the beginning). This was supported by the annexed NIRA death certificate, which confirmed the death on March 6, 2024, prior to the application's filing.

"It is of paramount importance to note that this is an application for abatement of a suit due to the death of the respondent. Yet, the Applicant has improperly instituted proceedings against a dead person, proceeding as if he could legally be held accountable. The NIRA death certificate, explicitly confirms that the respondent indeed passed away on 6th March 2024.

It is trite law that a deceased person lacks legal capacity to be sued, and it is illogical to expect a dead person to respond to the summons of this Court. Order 1 of the Civil Procedure Rules clearly provides that a suit can only be instituted by or against a legal person; and a dead person is not a legal person.

This defect alone is sufficient to render the application incompetent on the face of it."

3. Misrepresentation of the Deceased as the Sole Plaintiff

The court rejected the Applicant's claim that Byakumpi Emmanuel was the "sole effective plaintiff," pointing out that the main suit (Civil Suit No. 530 of 2025) involved three other surviving co-plaintiffs. By the time of Byakumpi's death, the plaintiffs had already closed their case, with evidence presented.

"The Applicant’s assertion that the deceased was the sole plaintiff is a misrepresentation of the record, which clearly shows that there are three other surviving co-plaintiffs in the main suit and by the time of his demise, the plaintiffs had closed their case with the late Byakumpi Emmanuel having testified and cross examined by the applicant/defendant. The cause of action survived."

4. Distinction Between Suits Against Deceased Persons and Death During Pendency

Building on the fatal defect, the court elaborated on Ugandan case law to distinguish invalid suits from those that can be salvaged. It cited multiple precedents to affirm that suits against already-deceased persons are nullities, unlike cases where death occurs after filing.

"In Ddamba Susan v John W. Katende & Fredrick Ssempebwa HCT-MA-1261-2025 it was held that 'if an individual is already deceased at the time of institution of the suit, the entire proceeding is ipso facto void since a dead person lacks legal personality, no valid legal action can be taken against them rendering any decree or judgment obtained in such a suit a nullity.' ...

In the Ddamba Susan v John W. Katende & anor (supra), the Court clarified on the distinction between a suit instituted against a dead person and one where a party dies during the pendency of the suit.

This critical distinction was further elaborated in Abdala Ramathan v Agony Swaib, MCA No. 0067 of 2016, where the Court held that while a suit can continue if the legal representatives of a deceased party are brought on record, any judgment rendered without such substitution is a nullity.

The decision succinctly summarizes the position: if a suit is brought against a person already deceased, it is a nullity from the outset and cannot be cured by amendment."

5. Inapplicability of Substantive Justice Over Procedural Technicalities

The court addressed the Applicant's reliance on Article 126(2)(e) of the Ugandan Constitution, which calls for prioritizing substantive justice. However, it found this provision inapplicable, as the defects went to the root of jurisdiction, not mere technicalities.

"The Applicant's counsel sought to invoke Article 126(2) (e) of the Constitution, urging this Court to prioritize substantive justice over procedural technicalities. While this Court is bound by that constitutional imperative, it is a well-established principle, clarified by the Supreme Court on numerous occasions, that this provision is not a license to disregard fundamental rules of jurisdiction and competence. The failure to name a legal person as a respondent is not a mere technicality as Counsel submitted."

6. Additional Procedural Defects in the Notice of Motion

Beyond the main defect, the court identified incurable flaws in the application's form, further justifying dismissal.

"In addition to the foregoing, the notice of motion was incurably defective for not stating the grounds upon which it is premised and lack of a signature of an authorized court official contrary to the provisions of Order 52 rule 3 and order 5 rule 1 (5) respectively."

Holding

The application was dismissed as incompetent due to the fundamental defect of naming a deceased person as the respondent, coupled with procedural irregularities in the Notice of Motion.

Key Takeaways

A deceased person cannot be sued, as they lack the legal capacity to be sued. Any action against a deceased individual is void from the outset (Ddamba Susan v. John W. Katende & Anor, Paul Nyamarere v. Uganda Electricity Board).
In cases where a party dies during a suit, the cause of action may survive if legal representatives are substituted. Still, failure to do so within the statutory period may lead to abatement (Abdala Ramathan v. Agony Swaib).
Applications must comply with procedural rules, including stating grounds and proper authentication, to be competent (Order 52, Rule 3; Order 5, Rule 1(5)).
While Article 126(2)(e) of the Constitution emphasizes substantive justice, it does not override fundamental jurisdictional or procedural requirements.