Kanyonyi v Equity Bank Uganda Limited (Miscellaneous Application 1762 of 2022)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Court held that an ex parte order for vacant possession should be set aside where the applicant was not duly served with the notice of motion. Service through a person who was not proven to be an adult member of the defendant's family, coupled with service on an LC1 official, was insufficient to constitute due service under Order 5 Rule 13 of the Civil Procedure Rules. The applicant satisfied the requirement under Order 9 Rule 27 that summons was not duly served, warranting the setting aside of the ex parte order.

Outcome

Ex parte order for vacant possession set aside; applicant granted leave to file affidavit in reply

Facts

The respondent bank advanced the applicant a credit facility of UGX 30,000,000 on 15 February 2018, secured by a mortgage over property in Buzzi LC1, Namulanda Parish, Ssisa sub county. The applicant defaulted on loan repayments and the property was sold. When the applicant refused to hand over vacant possession, the bank filed Miscellaneous Cause No. 0026 of 2022 seeking an order for vacant possession. An ex parte order was granted on 17 October 2022. The applicant learned of this order only on 2 December 2022 when unknown persons delivered it to his house. The applicant contended he was never served with the court process in the original application. The process server's affidavit stated he left court papers with a young man identified as the applicant's son and with the LC1 chairperson, but there was no evidence the son was an adult family member who actually received the papers.

Issues

1. Whether this application discloses sufficient grounds for setting aside the ex parte order in Miscellaneous Cause No. 26 of 2022
2. What remedies are available

Orders

• Application allowed.
• The Order for vacant possession issued in Miscellaneous Cause No. 0026 of 2022 is set aside.
• Leave is hereby granted to the Applicant to file an affidavit in reply within ten (10) days from the date of this ruling.
• Costs of this application shall be in the cause.

Rules and key headnotes

Legislation cited (13)

• Civil Procedure Act Cap 71 s.98
• Civil Procedure Rules SI 71-1 Order 36 Rule 3
• Civil Procedure Rules SI 71-1 Order 36 Rule 4
• Civil Procedure Rules SI 71-1 Order 36 Rule 11
• Civil Procedure Rules SI 71-1 Order 51 Rule 6
• Civil Procedure Rules SI 71-1 Order 52 Rule 1
• Civil Procedure Rules SI 71-1 Order 52 Rule 2
• Civil Procedure Rules SI 71-1 Order 52 Rule 3
• Civil Procedure Rules SI 71-1 Order 9 Rule 27
• Civil Procedure Rules SI 71-1 Order 5 Rule 13
• Civil Procedure Rules SI 71-1 Order 15 Rule 5(1)
• Evidence Act Cap 6 s.101
• Evidence Act Cap 6 s.103

Cases cited (4)

• Barugahare v Attorney General (Supreme Court Civil Appeal No. 28 of 1993)
• Owaraga v Owaraga (High Court Civil Appeal No. 60 of 1992)
• Karumu v Metha [1960] EA 305
• Wadamba v Mutasa (High Court Civil Appeal No. 0032 of 2015)

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