Wakilii

Kalyesubula Fenekansi v Luwere District Land Board & 2 Ors (Misc. Application No. 367 of 2011)

High Court · [2011] UGHC 178 · 2011 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal of civil suit arising from non-appearance at hearing
Decision
Suit reinstated for hearing on merit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where a plaintiff and his lawyer were not served with hearing notices and were under the impression that the court file could not be located, this constitutes sufficient cause for non-appearance under Order 9 rule 23 of the Civil Procedure Rules. The dismissal was set aside and the suit reinstated for hearing on merit.

Outcome

Suit reinstated for hearing on merit

Facts

The applicant filed Civil Suit No. 186 of 2008 in the High Court Land Division against the respondents. He diligently attended court and on 25 November 2009 the case was fixed for hearing on 26 and 27 April 2010. On 26 April 2010, the applicant attended court but the trial judge was retiring and did not hear the case. The applicant's lawyer wrote to the Registrar on 3 May 2010 requesting file reallocation. Despite multiple inquiries, court staff indicated the file could not be located. Unknown to the applicant and his lawyer, the file was reallocated and the case was called for hearing three times. The applicant and his lawyer were never notified or served with hearing notices. The case was dismissed in March 2011. Upon learning of the dismissal, the applicant's lawyer wrote to court, the file was traced on 23 May 2011, and the applicant filed this application to set aside the dismissal. The three respondents did not file any affidavit in reply despite being served with the application between June and July 2011.

Issues

  1. Whether the applicant had sufficient cause for his non-appearance when the suit was called for hearing
  2. Whether the dismissal of Civil Suit No. 186 of 2008 should be set aside and the suit reinstated

Orders

  • The dismissal of the Applicant's case vide Civil Suit No. 186 of 2008 is set aside.
  • The suit is reinstated to be heard on merit.
  • Costs of the application will be in the cause.

Rules and key headnotes

Civil Procedure — Setting Aside Dismissal — Sufficient Cause for Non-Appearance
Where a plaintiff and his lawyer are not served with hearing notices and are under the impression that the court file cannot be located, this constitutes sufficient cause for non-appearance under Order 9 rule 23 of the Civil Procedure Rules, warranting the setting aside of dismissal.
Civil Procedure — Ex Parte Proceedings — Effect of Failure to File Defence or Reply
Where a respondent has been served with an application and fails to file an affidavit in reply within the time allowed, the applicant may set down the application for hearing ex parte and the respondent will not be allowed to participate in the proceedings, though the burden remains on the applicant to prove the case on the balance of probabilities.
Civil Procedure — Pleadings — Failure to File Defence — Deemed Admission
A party who has not filed a defence or affidavit in reply is deemed to have admitted the allegations, and facts stated on oath by the applicant that are neither denied nor rebutted are presumed to be admitted.

Legislation cited (6)

Cases cited (8)

  • Kubibaire v Kakwenzire [1977] HCB 37
  • Musoke v Kaye [1976] HCB 171
  • Agard Didi v James Namakajjo (HCCS No. 1230 of 1988)
  • Tindimwebwa Naris v Mutebi Salim (HCT-OO-CV-0057)
  • Samwiri Massa v Rose Achieng [1978] HCB 297
  • Makerere University v St Mark Education Institute Ltd & Ors (HCCS No. 378 of 1993)
  • Eridadi Ahimbisibwe v World Food Programme & Ors [1998] KALR 32
  • Nakityo Miriam & Ors v Jackson Muleele & 7 Ors (HCT-00-CS-0052-2008)

Full judgment

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

Kalyesubula Fenekansi v Luwere District Land Board & 2 Ors (Misc. Application No. 367 of 2011) [2011] UGHC 178 (15 December 2011)
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.