Wakilii

Jackson Kimbugwe v Batte Gerald (Civil Suit No. 078 of 2016; Miscellaneous Application No. 104 of 2018)

High Court · [2018] UGHCCD 267 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte summary decree entered in default of appearance in underlying summary suit
Decision
Ex parte summary judgment set aside and underlying application for leave to defend remitted for hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court exercised its discretion to set aside the ex parte summary decree entered after the applicant's application for leave to appear and defend was dismissed for want of prosecution. The court held that while counsel's non-appearance after dates fixed in their presence justified the initial dismissal, it would nonetheless set aside the decree in the interests of justice and allow the underlying application for leave to defend to be heard on its merits.

Outcome

Ex parte summary judgment set aside and underlying application for leave to defend remitted for hearing on merits

Facts

The respondent filed a summary suit on 8 April 2016 seeking recovery of UGX 154,000,000. On 2 May 2016, the applicant filed an application for leave to appear and defend (Miscellaneous Application No. 481 of 2016), which was fixed for hearing on 29 November 2016. The application was subsequently adjourned to 29 October 2016, 28 February 2017, and 27 April 2017. The applicant's counsel attended on the first two dates but failed to appear on 19 June 2017, despite the date having been fixed in their presence. The court dismissed the application for want of prosecution and entered summary judgment as prayed in the specially endorsed plaint. On 28 May 2018, approximately one year after the dismissal, the applicant filed this application to set aside the ex parte summary judgment, alleging that counsel's negligence in failing to attend or inform the applicant constituted sufficient cause.

Issues

  1. Whether the applicant established sufficient cause to set aside the ex parte summary decree entered after dismissal of the application for leave to appear and defend for want of prosecution.
  2. Whether counsel's negligence in failing to attend court constitutes sufficient cause to set aside ex parte judgment.

Orders

  • Application allowed.
  • Ex parte summary judgment set aside.
  • Miscellaneous Application No. 481 of 2016 shall be heard on its merits.
  • Applicant directed to file and serve submissions within 7 days (28 June 2018).
  • Respondent to file and serve submissions within 6 days (3 July 2018).
  • Applicant may file rejoinder by 6 July 2018.
  • Ruling to be delivered on 13 July 2018 at 12:00.
  • Costs of this application in the cause.

Rules and key headnotes

Civil Procedure — Ex Parte Judgments — Setting Aside — Discretion of Court
Where a defendant has been served, the court has unfettered discretion to set aside an ex parte judgment obtained in default of appearance provided that in doing so no injustice is caused to either party.
Civil Procedure — Ex Parte Judgments — Setting Aside — Grounds for Exercise of Discretion
The discretion to set aside ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.
Civil Procedure — Want of Prosecution — Dismissal — Effect of Counsel's Non-Appearance
Where counsel fails to attend court on a date fixed in their presence, the court is justified in dismissing the application for want of prosecution, and such non-appearance does not automatically constitute a violation of the party's right to be heard since the party has taken itself out of the jurisdiction of the court through non-appearance.

Legislation cited (2)

Cases cited (1)

  • Shah v Mbogo [1967] EA 116

Full judgment

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

Jackson Kimbugwe v Batte Gerald (Civil Suit No. 078 of 2016; Miscellaneous Application No. 104 of 2018) [2018] UGHCCD 267 (21 June 2018)
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.