Wakilii

Atukwase Togarson v Alisa Maria Knoll [2025] UGHC 1570

High Court · 2025 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default judgment and for leave to appear and defend arising from summary suit
Decision
Default judgment set aside, main suit reinstated, applicant granted leave to appear and defend

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where an application for leave to appear and defend was fixed for hearing barely 12 hours before the scheduled time with no evidence of notice to counsel, and counsel was not listed on the hearing notice for the main suit, the non-appearance was not deliberate or negligent and constituted good cause under Order 36 rule 11 CPR to set aside the default judgment. Further held that where an applicant disputes the nature of financial transactions and raises triable issues of fact regarding whether remittances were gifts or loans, leave to appear and defend must be granted.

Outcome

Default judgment set aside, main suit reinstated, applicant granted leave to appear and defend

Facts

The Respondent instituted a summary suit (Civil Suit No. 1417 of 2024) against the Applicant. The Applicant filed Miscellaneous Application No. 2737 of 2024 seeking leave to appear and defend but failed to appear on the hearing date. The application was dismissed for want of prosecution and default judgment was entered in favour of the Respondent. The Applicant contended that the application was fixed for hearing on 20 February 2025 but the date was allocated and signed by the Registrar on 19 February 2025 at 9:41 pm, barely 12 hours before the hearing, with no evidence that his advocates were notified. The Applicant also contended that his counsel was not served with the hearing notice for the main suit scheduled for 30 January 2025. The Respondent claimed the Applicant was indebted to her for UGX 18,000,000 and 11,000 Euros. The Applicant disputed the debt, contending the monies were gifts out of love and affection, not loans.

Issues

  1. Whether the default judgment entered against the Applicant in Civil Suit No. 1417 of 2024 should be set aside.
  2. Whether the Applicant should be granted leave to appear and defend.

Orders

  • The default judgment entered in Civil Suit No. 1417 of 2024 is hereby set aside.
  • Civil Suit No. 1417 of 2024 is hereby reinstated.
  • The Applicant is hereby granted leave to appear and defend Civil Suit No. 1417 of 2024 and will file their written statement of defence within the next 14 days after delivery of this Ruling.
  • Costs of this application shall abide the outcome of the main suit.

Rules and key headnotes

Civil Procedure — Setting Aside Default Judgment — Good Cause — Procedural Irregularity
Where an application for leave to appear and defend is fixed for hearing barely 12 hours before the scheduled time with no evidence of notice to counsel, and the shortness of notice and lack of communication amount to a procedural irregularity that deprives the applicant of a fair opportunity to prosecute the application, the non-appearance is not deliberate or negligent and constitutes good cause under Order 36 rule 11 of the Civil Procedure Rules to set aside the default judgment.
Civil Procedure — Service of Process — ECCMIS Notification — Counsel Not Listed
While service through ECCMIS is procedurally acceptable under the current court system, where counsel is not named in the court-generated hearing notice and there is no indication that counsel was served or notified of the hearing or subsequent adjournment, it cannot be said that the applicant or legal representatives were afforded a fair opportunity to prosecute the application.
Civil Procedure — Natural Justice — Right to Be Heard
It is a cardinal principle of natural justice that a party should not be condemned unheard. Where a party has demonstrated that their failure to attend court was not due to willful neglect but arose from procedural lapses or lack of notice, courts have consistently exercised their discretion to set aside ex parte orders or judgments in the interest of substantive justice.
Civil Procedure — Leave to Appear and Defend — Test for Grant
Before leave to appear and defend is granted, the defendant must show by affidavit or otherwise that there is a bona fide triable issue of fact or law. The defendant is not bound to show a good defence on the merits but should satisfy the court that there is an issue or question in dispute which ought to be tried. The court shall not enter upon the trial of issues disclosed at this stage.
Civil Procedure — Leave to Appear and Defend — Triable Issues of Fact
Where an applicant disputes the nature of financial transactions between parties, raises triable issues of fact including whether there was a loan agreement and the intentions surrounding remittances, and contends that monies were gifted out of love and affection rather than obtained as loans, these are matters that can only be resolved through a full trial upon examination of oral and documentary evidence and the applicant has demonstrated a plausible and bona fide defence warranting the grant of leave to appear and defend.

Legislation cited (7)

Cases cited (3)

  • Maluku Inter Global Trade Agency v Bank of Uganda [1985] HCB 65
  • Geoffrey Gatete & Anor v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)
  • UAP Old Mutual Insurance UG Ltd v Rwenzori Hydro (PVT) Ltd (Miscellaneous Application No. 446 of 2024)

Full judgment

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

Atukwase Togarson v Alisa Maria Knoll 2025 UGHC 1570 (10 June 2025)
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.