Dr. Ayella Lapyem v Kingstone Engineering & Construction Consultants Ltd (Miscellaneous Application No. 1248 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that default judgment should be set aside where the applicant demonstrated willingness to file a defense but was prevented by counsel's mistake. The mistake or negligence of counsel should not be visited upon an innocent litigant per Article 126(2)(e) of the Constitution. The applicant took necessary steps to instruct counsel but counsel failed to file defense due to communication breakdown and personal emergency. The default judgment order was also procedurally defective as it was not sealed and lacked clarity on reliefs granted.

Outcome

Default judgment set aside; matter to proceed to defense and full hearing on merits

Facts

The respondent sued the applicant for breach of contract seeking UGX 315,223,039 in Civil Suit No. 407 of 2021. The applicant, who works and resides abroad, was served by email in early August 2021. He immediately forwarded the documents to his lawyer, Mr. Simon Muhumuza of KRK Advocates, with instructions to file a defense. Counsel received the documents but determined he needed further particulars. He emailed the applicant requesting these, but the email bounced without counsel realizing it. Counsel then had a family emergency in the village attending to his critically ill mother. Meanwhile, the respondent applied for and obtained default judgment on 14 September 2021 for the suit sum. When the applicant returned to Uganda and checked with his lawyers, he discovered no defense had been filed. The applicant then brought this application to set aside the default judgment.

Issues

1. Whether there is just cause to set aside the default judgment dated 14/09/2021 in Civil Suit No. 407 of 2021.

Orders

• Application granted.
• Default judgment dated 14/09/2021 in Civil Suit No. 407 of 2021 set aside.
• Costs shall be in the cause.

Rules and key headnotes

Legislation cited (9)

• Civil Procedure Act Cap 71 s.96
• Civil Procedure Act Cap 71 s.98
• Civil Procedure Act Cap 71 s.2(o)
• Civil Procedure Rules SI 71-1 Order 9 Rule 12
• Civil Procedure Rules SI 71-1 Order 9 Rule 6
• Civil Procedure Rules SI 71-1 Order 21 Rule 7
• Civil Procedure Rules SI 71-1 Order 52 Rule 1
• Civil Procedure Rules SI 71-1 Order 52 Rule 2
• Constitution of the Republic of Uganda 1995 Article 126(2)(e)

Cases cited (5)

• Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
• L.A.M Hussein v G.I Kakiiza and 2 others (Supreme Court Civil Application No. 30 of 1994)
• Delia Almeida v Drule Almeida (Supreme Court Civil Application No. 15 of 1990)
• Shiv Construction Co. v Endesha Enterprises Ltd (Supreme Court Civil Application No. 15 of 1992)
• Clouds 10 Ltd v Standard Chartered Bank Ltd (Civil Application No. 35 of 1992)

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