Wakilii

Asekenye v Barasa (HCT-04-CV-MA-0125-2013)

High Court · [2015] UGHCCD 36 · 2015 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte judgment arising from civil suit for alleged improper service of summons
Decision
Exparte judgment set aside; applicant permitted to file defence on condition of providing security for costs; matter to proceed inter partes

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that proper effort to effect personal service was not demonstrated before substituted service was ordered. The applicant established she was not effectively served, had no knowledge of the suit until after judgment, acted promptly, and had a plausible defence showing triable issues. The exparte judgment was set aside on condition that the applicant provide security for costs of UGX 15,000,000.

Outcome

Exparte judgment set aside; applicant permitted to file defence on condition of providing security for costs; matter to proceed inter partes

Facts

The applicant sought to set aside an exparte judgment entered against her in Civil Suit No. 0060/2010. She averred that she was not served with summons to file a defence and only learned of the suit on 18 June 2013 after judgment had been passed. She claimed to have a plausible defence. The respondent contended that the applicant was served by substituted service following a court order, and that such service was effectual as personal service under the Civil Procedure Rules. The applicant produced evidence that the respondent knew her lawyers' address, her phone number, and adult family members, all known to the respondent, but failed to make proper effort to serve her personally before resorting to substituted service. She held a certificate of title to the property in dispute and acted immediately upon learning of the suit by filing the application.

Issues

  1. Whether service of summons was effective before the court granted substituted service.
  2. Whether the applicant showed sufficient cause to warrant setting aside the exparte judgment.

Orders

  • Application granted.
  • Exparte judgment in Civil Suit No. 0060/2010 set aside.
  • Applicant allowed to file defence and matter to be heard inter partes.
  • Application granted subject to security for costs of UGX 15,000,000/=.

Rules and key headnotes

Civil Procedure — Service of Process — Substituted Service — Requirement for Due Diligence
Substituted service is a last resort available only after due diligence in effecting personal service has failed. Proper effort must be made to effect personal service before a court may order substituted service. If the defendant has a known address, known lawyers, a known phone number, or known adult family members, and the plaintiff makes no attempt to serve through these means, the requirements for substituted service have not been met.
Civil Procedure — Exparte Judgments — Setting Aside — Grounds
An exparte judgment may be set aside where the defendant demonstrates that summons was not duly served or that they were prevented by sufficient cause from appearing. Sufficient cause includes lack of effective service, lack of knowledge of the suit, prompt action upon learning of the judgment, and the existence of a plausible defence that discloses bonafide triable issues.
Civil Procedure — Exparte Judgments — Setting Aside — Security for Costs
Where an exparte judgment is set aside and the respondent holds a judgment in their favour, the court may impose security for costs as a condition for sustaining the application and allowing the matter to proceed inter partes.

Legislation cited (7)

  • Civil Procedure Rules O.9 r.12
  • Civil Procedure Rules O.9 r.27
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.52 r.3
  • Civil Procedure Rules O.5 r.18(1)
  • Civil Procedure Rules O.5 r.18(2)
  • Civil Procedure Rules O.15 r.18(2)

Cases cited (8)

  • Remco Ltd v Miistray Jadbra Ltd [2002] 1 EA 233
  • Little Sisters of St. Francis Madera Convent v Oling Nicholas (Miscellaneous Application No. 58 of 2010)
  • UTC v Katongole & Another (1975) HCB 336
  • Bulenzi v Wenderi (1990) KALR 108
  • Nzioki s/o Mutwata v Akamba Handcraft Industries Ltd (1954) 27 KLR
  • Lebel (EA) Ltd v EF Lutwama (1986) HCB
  • S Kyobe Senyange v Naks Ltd (1980) HCB 31
  • Nicholas Roussos v Gulam HH Viran & 2 Others (Supreme Court Civil Appeal No. 3 of 1993)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Asekenye v Barasa (HCT-04-CV-MA-0125-2013) [2015] UGHCCD 36 (13 March 2015)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.