Wakilii

Kaawa and Another v Mawerere (Civil Miscellaneous Appeal 318 of 2015)

High Court · [2023] UGHC 63 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte judgment in Civil Appeal No. 51 of 2009, which arose from Land Civil Suit No. 24 of 2006
Decision
Application to set aside exparte judgment dismissed; exparte judgment in Civil Appeal No. 51 of 2009 remains in force

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application to set aside an exparte judgment, holding that the applicants failed to prove they were not duly served with hearing notices. The court found that three affidavits of service on the court record demonstrated proper service, and that the applicants had not appeared for six consecutive hearing dates. The application was filed ten months after the exparte judgment and only after execution of the decree, indicating it was an afterthought. The court held that the applicants did not exercise due diligence and did not establish sufficient cause under Order 43 Rule 18 of the Civil Procedure Rules.

Outcome

Application to set aside exparte judgment dismissed; exparte judgment in Civil Appeal No. 51 of 2009 remains in force

Facts

The applicants sought to set aside an exparte judgment delivered on 20 November 2014 in Civil Appeal No. 51 of 2009, which arose from Land Civil Suit No. 24 of 2006. The 2nd applicant had been declared the lawful owner of suit land in the lower court. The respondent appealed, and the appeal was filed on 20 March 2009. Between 2012 and 2014, the appeal was fixed for hearing on multiple occasions. The 2nd applicant appeared once on 14 September 2012 and was advised to seek legal aid. Despite being served with hearing notices on subsequent dates, neither the 2nd applicant nor her counsel appeared for six consecutive hearing dates. On 29 October 2014, the court proceeded exparte and allowed the appeal. Execution of the decree was effected on or about 24 August 2015. The applicants filed this application on 14 September 2015, claiming they were not served with the hearing notice for 29 October 2014 and that the affidavit of service was false because the 2nd applicant is illiterate and cannot write her name.

Issues

  1. Whether there is sufficient cause given by the applicants to allow the grant of this application to set aside the exparte judgment.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.
  • The decision of the earlier judge in Civil Appeal No. 51 of 2009 stands.

Rules and key headnotes

Civil Procedure — Setting Aside Exparte Judgments — Requirements under Order 43 Rule 18
Under Order 43 Rule 18 of the Civil Procedure Rules, an applicant seeking to set aside an exparte judgment must satisfy the court either that the notice was not duly served or that they were prevented by sufficient cause from appearing when the appeal was called for hearing.
Civil Procedure — Service of Process — Proof of Service by Affidavit
Where affidavits of service sworn by court process servers are on record and show that a party was served with hearing notices, the court is entitled to rely on such affidavits as proof of proper service unless the applicant provides convincing evidence to rebut them.
Civil Procedure — Due Diligence — Duty to Follow Up on Proceedings
A party has a duty to exercise due diligence in following up on their case. Where a party appears once and is advised to seek legal representation but thereafter fails to appear for six consecutive hearing dates despite being served, they cannot be said to have exercised due diligence.
Civil Procedure — Setting Aside Exparte Judgments — Timeliness of Application
An application to set aside an exparte judgment must be filed within a reasonable time. Where an application is filed ten months after the exparte judgment and only after execution of the decree has been completed, it may be considered an afterthought and filed too late.
Civil Procedure — Constitutional Right to Be Heard — Article 126(2)(e) — Not an Open Cheque
Article 126(2)(e) of the Constitution, which provides that substantive justice shall be administered without undue regard to technicalities, is not an open cheque to be used at will by indolent litigants who fail to submit to law, but must be jealously guarded and only invoked in deserving cases where there is proof that the party invoking it has sufficient reasons.

Legislation cited (6)

Cases cited (14)

  • Nakiridde Namwandu v Hotel International [1987] HCB 85
  • Ready Agro Suppliers Ltd and 2 Others v Uganda Development Bank Ltd (HCT 00-CC-0379-2005)
  • Rwabunyoro Mugume David v Kalule S. Simon King (Miscellaneous Cause No. 45 of 2014)
  • Shamsudin Jiwan Mitha v Abdulaziz Ali Lalak [1960] EA 1054
  • Kiige Fred and 7 Others v Kaluya Yonasani (Civil Appeal No. 19 of 2018)
  • Lucas Marisa v Uganda Breweries Ltd (HCCS No. 9 of 1986) [1986-90] HCB 131
  • Namutebi Matilda v Ssemanda Simon and 2 Others (Miscellaneous Application No. 430 of 2021)
  • Kaingana Joy per Kaingana John v BouBon Dabo [1986] HCB 59
  • Makerere University v St. Mark Education Institute and Others (High Court Civil Suit No. 378 of 1993)
  • Taremwa Kamishani and Others v Attorney General (High Court Miscellaneous Application No. 38 of 2012)
  • Edrisa Mutaasa and Others v IGG, Lyantonde District Administration and Another (High Court Miscellaneous Cause No. 6 of 2010)
  • Kaheru Yasin and Another v Zinorumuri David (High Court Miscellaneous Application No. 82 of 2017)
  • Ssenyimba Vincent and Two Others v Birikade Peter and Another (High Court Miscellaneous Application No. 378 of 2018)
  • Kaahwa Stephen and Another v Kalema Hannington (High Court Civil Appeal No. 7 of 2011)

Full judgment

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Kaawa and Another v Mawerere (Civil Miscellaneous Appeal 318 of 2015) [2023] UGHC 63 (30 August 2023)
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.