Wakilii

Kare Distribution Ltd v Ntake Bakery and Co. Ltd (H.C.Miscellaneous Application No. 412 of 2020)

High Court · [2021] UGCOMMC 90 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside Registrar's order dismissing application for leave to appear and defend in summary suit
Decision
Order dismissing application for leave to appear and defend set aside; matter reinstated for filing of defence and full trial

Observed later treatment

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Holding

Held that where an application for leave to appear and defend a summary suit is dismissed by the Registrar, the proper remedy is an appeal to the High Court under Order 50 rule 8 CPR, not an application to set aside decree under Order 36 rule 11 CPR. Order 36 rule 11 applies where no application for leave was filed and judgment was entered in default. The applicant raised triable issues regarding withdrawal of goods by the respondent that required reconciliation of accounts at full trial. Application allowed; order dismissing leave to appear set aside; matter reinstated.

Outcome

Order dismissing application for leave to appear and defend set aside; matter reinstated for filing of defence and full trial

Facts

The respondent sued the applicant for UGX 129,300,000 in a summary suit for goods supplied. The applicant filed an application for leave to appear and defend, which was dismissed by the Registrar, and summary judgment was entered against the applicant. The applicant then brought this application to set aside the Registrar's order. The applicant claimed that the respondent's agents had withdrawn goods previously supplied without accountability, and that the respondent had disrupted the applicant's business operations. The respondent argued that goods worth UGX 129,330,000 were delivered and acknowledged by the applicant, who issued cheques that were later countermanded. The respondent raised a preliminary objection that the proper remedy was under Order 36 rule 11 CPR (setting aside decree) rather than Order 50 rule 8 CPR (appeal from Registrar's order).

Issues

  1. Whether the application discloses sufficient cause to set aside the order dismissing the application for leave to appear and defend.
  2. Whether the proper remedy for a dismissed application for leave to appear and defend is an appeal under Order 50 rule 8 CPR or an application to set aside decree under Order 36 rule 11 CPR.
  3. Whether the applicant raised triable issues warranting leave to appear and defend the summary suit.

Orders

  • Application allowed.
  • The order entered in Civil Suit No. 504 of 2019 is hereby set aside and the matter reinstated.
  • The applicant is ordered to file a written statement of defence within fifteen days and serve the respondent as prescribed by law.
  • Costs shall be provided for.

Rules and key headnotes

Civil Procedure — Summary Suits — Remedy After Dismissal of Application for Leave to Appear and Defend
Where an application for leave to appear and defend a summary suit is dismissed by the Registrar inter partes, the proper remedy available to the aggrieved party is an appeal to the High Court under Order 50 rule 8 CPR, not an application to set aside the decree under Order 36 rule 11 CPR.
Civil Procedure — Summary Suits — Scope of Order 36 Rule 11 CPR
Order 36 rule 11 CPR, which provides for setting aside a decree in a summary suit, is intended for situations where the defendant did not file an application for leave to appear and defend within the prescribed time and judgment in default of application for leave was entered as a result under Order 36 rule 3 CPR.
Civil Procedure — Summary Suits — Leave to Appear and Defend — Triable Issues
In an application for leave to appear and defend a summary suit, where the defendant raises a contentious factual dispute that goes to the root of the claim and requires reconciliation of accounts or evaluation of conflicting evidence, the defendant has disclosed a triable issue and should be granted leave to defend.
Civil Procedure — Summary Suits — Leave to Appear and Defend — Standard of Proof
To avoid summary judgment, a defendant must show that there is a triable issue or that for some other reason there ought to be a trial. Where the defendant raises a triable issue on affidavit, leave to defend must be granted even if the case appears weak. Mere denials are insufficient; the defendant must clearly disclose the nature and extent of the defence in clear language.

Legislation cited (9)

Cases cited (6)

  • ZamZam Noel & Others v Post Bank Ltd (Miscellaneous Application No. 530 of 2008)
  • Attorney General and Another v James Mark Kamoga and Another (Supreme Court Civil Appeal No. 8 of 2004)
  • Francis Wazarwahi Bwengye v Haki Bonera (High Court Civil Appeal No. 39)
  • Bunio v KCB Bank (U) Ltd (High Court Miscellaneous Application No. 174 of 2014)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Miter Investments Ltd v East African Portland Cement Co. Ltd (Miscellaneous Application No. 336 of 2012)

Full judgment

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

Kare Distribution Ltd v Ntake Bakery and Co. Ltd (H.C.Miscellaneous Application No. 412 of 2020) [2021] UGCommC 90 (20 April 2021)
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.