Wakilii

Kampala Stocks Supermarket Limited v Orion Food Company Limited (Miscellaneous Application 2075 of 2023; Miscellaneous Application 2080 of 2023)

High Court · [2023] UGCOMMC 261 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte judgment and stay execution arising from Miscellaneous Cause No. 33 of 2020
Decision
Application to set aside exparte judgment dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the mistake and negligence of counsel does not automatically excuse a litigant who has also been negligent. Where an applicant instructs lawyers but fails to follow up on the progress of their case, and only learns of an exparte judgment eleven months after it was delivered when served with a notice to show cause, this demonstrates negligence and indolence. The applicant must show they were not negligent and took proactive steps to correct counsel's errors when they first became aware of the default. Application dismissed.

Outcome

Application to set aside exparte judgment dismissed

Facts

The Respondent instituted Miscellaneous Cause No. 33 of 2022 against the Applicant. At the hearing, the Applicant's new counsel informed the Court they had just received instructions and sought leave to file an affidavit in reply out of time, which was granted with a deadline of 31 March 2021. The directive was not followed. The Respondent sought to proceed exparte, which was granted. An exparte judgment was entered in favor of the Respondent on 5 September 2022. The Respondent then applied for execution and a notice to show cause was issued. On 30 August 2023, the Applicant applied to set aside the decree and stay execution, claiming they were unaware of the exparte proceedings until served with the notice to show cause. The Applicant blamed the negligence of former counsel for the failure to file the affidavit in reply and absence at the hearing and ruling.

Issues

  1. Whether the application discloses any grounds for setting aside the exparte judgment passed.
  2. Whether an order for a stay of execution should be issued.

Orders

  • Application dismissed.

Rules and key headnotes

Civil Procedure — Setting Aside Exparte Judgments — Negligence of Counsel — Burden on Applicant
Before an applicant can be excused from the mistakes of counsel, the applicant must show that they were not in any way negligent and that they took proactive steps in correcting the errors of counsel when they first became aware of the default.
Civil Procedure — Setting Aside Exparte Judgments — Duty to Follow Up on Case Progress
An applicant who instructs lawyers to pursue their case has a duty and responsibility to follow up on the progress of their case with the said advocates. Failure to do so constitutes negligence that may preclude setting aside an exparte judgment on grounds of counsel's mistake.
Civil Procedure — Uncontroverted Affidavit Evidence — Effect
If the applicant supports an application by affidavit or other evidence and the respondent does not reply by affidavit or otherwise, and the supporting evidence is credible in itself, the facts stand as unchallenged and the court may accept them as correct and true.

Legislation cited (6)

Cases cited (6)

  • Serefaco Consultants Limited v Euro Consults and Arcadis Euro Consult (Court of Appeal Civil Application No. 16 of 2007)
  • H.G. Gandesha and Kampala Estates Ltd v G.J. Lutaya (Supreme Court Civil Application No. 14 of 1989)
  • Zam Nalumansi v Sulaiman Lule (Supreme Court Civil Application No. 2 of 1992)
  • Mary Kyamulabi v Ahmed Zirondemu (Court of Appeal Civil Application No. 41 of 1979)
  • Andrew Bamanya v Sham Sherali Zaver (Court of Appeal Civil Application No. 70 of 2001)
  • Okech Verkam v Centenary Rural Development Bank (High Court Civil Application No. 93 of 2019)

Full judgment

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

Kampala Stocks Supermarket Limited v Orion Food Company Limited (Miscellaneous Application 2075 of 2023; Miscellaneous Application 2080 of 2023) [2023] UGCommC 261 (23 November 202
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.