Wakilii

Edward Karenzi v Susan Katono (Miscellaneous Application No. 949 of 2015)

High Court · [2016] UGCOMMC 307 · 2016 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte judgment and decree and for leave to appear and defend arising from Civil Suit No. 411 of 2014
Decision
Exparte judgment and decree set aside; applicant granted leave to defend main suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that substituted service by newspaper advertisement was not effective where the defendant was illiterate and unaware of the proceedings until served with a warrant of arrest, and that the defendant had a right to be heard. The exparte judgment and decree were set aside and the applicant granted leave to appear and defend within 15 days.

Outcome

Exparte judgment and decree set aside; applicant granted leave to defend main suit

Facts

The respondent filed Civil Suit No. 411 of 2014 seeking recovery of UGX 130,000,000. Unable to effect personal service on the applicant, the respondent obtained an order for substituted service, and a summons was published in the Daily Monitor newspaper in November 2014. An exparte judgment and decree were entered in December 2014 in favor of the respondent. In August 2015, the applicant was committed to civil prison. It was only when served with a notice to show cause why he should not be arrested that the applicant became aware of the court proceedings. The applicant filed this application in November 2015 seeking to set aside the exparte judgment, alleging he was illiterate and never saw the newspaper advertisement, and that he had a good defense to the main suit.

Issues

  1. Whether service of summons through substituted service on the applicant was effective.
  2. Whether there was good cause to set aside the exparte judgment and decree.
  3. Whether the applicant should be granted leave to appear and defend the suit.

Orders

  • Service by way of substituted service on the Applicant in November 2014 was not effective service and is hereby set aside.
  • The decree of the court dated 28th January 2015 and the execution is set aside.
  • The applicant is granted leave to appear and defend himself within 15 days from the date of this ruling.
  • Costs of this application shall be in the cause.

Rules and key headnotes

Civil Procedure — Service of Process — Substituted Service — Effectiveness
Substituted service by newspaper advertisement is not effective service where the defendant is illiterate and was not actually made aware of the proceedings, notwithstanding that the court order authorising such service was properly obtained.
Civil Procedure — Setting Aside Exparte Judgment — Ineffective Service
Under Order 36 Rule 11 of the Civil Procedure Rules, an exparte decree will be set aside where the court is satisfied that service of summons was not effective, meaning it did not produce the intended result of making the defendant aware of the suit.
Civil Procedure — Right to Be Heard — Natural Justice
A party has a right to be heard unless he or she elects to waive that right. Where service is found to be ineffective, the defendant must be given an opportunity to exercise this right by appearing and defending the suit.
Civil Procedure — Setting Aside Decree — Execution Already Effected
The fact that a decree has been executed, including by civil imprisonment of the defendant, is not a bar to an application to set aside an exparte decree where grounds for setting it aside are established.

Legislation cited (3)

Cases cited (5)

  • Greenboat Entertainment Ltd v KCC (Civil Suit No. 580 of 2003)
  • Nakitto Margaret Veilleux v Karugaba Joseph & another (Miscellaneous Application No. 325 of 2013)
  • Makubi v NIC [1979] HCB 230
  • David Ssesanga v Greenland Bank (Miscellaneous Application No. 406 of 2010)
  • Geoffrey Gatete and Angela Maria Nakigonya v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)

Full judgment

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

Edward Karenzi v Susan Katono (Miscellaneous Application No. 949 of 2015) [2016] UGCommC 307 (12 October 2016)
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.