Wakilii

Kayemba v MS Huadar Guang Dong Chinese Co. Ltd (Miscellaneous Application No. 98 of 2017)

High Court · [2018] UGCOMMC 48 · 2018 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default judgment entered in summary suit for recovery of liquidated sum
Decision
Default judgment and decree of 7th September 2016 upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application to set aside default judgment dismissed. The court held that service of summons was effective under Order 5 rules 13 and 14 of the Civil Procedure Rules where the process server attended the defendant's home, spoke with his wife and the LC1 official who entered and spoke to the defendant, and the defendant communicated through them that his lawyer would handle the matter. Where the defendant refused to endorse the summons, the court declared service duly effected, and found no just cause to set aside the default judgment.

Outcome

Default judgment and decree of 7th September 2016 upheld

Facts

The respondent filed Civil Suit No. 371 of 2016 seeking recovery of USD 77,639 from the applicant arising from default on a loan agreement. Summons in the summary suit were served. On 29th June 2016, a court process server attended the applicant's home with the LC1 official. The applicant's wife informed them the applicant was resting inside. The LC1 official entered and spoke to the applicant, who stated the matter would be handled by the family lawyer. Both the applicant and his wife refused to endorse the summons. The applicant did not file an application for leave to defend. Default judgment was entered on 7th September 2016. The applicant filed Miscellaneous Application No. 597 of 2016 on 18th July 2016, which was dismissed when he failed to appear. The applicant then filed the current application on 8th February 2017 seeking to set aside the default judgment.

Issues

  1. Whether service of summons on the applicant was effective under Order 5 rules 13 and 14 of the Civil Procedure Rules.
  2. Whether there was just cause for setting aside the default judgment entered on 7th September 2016.
  3. Whether the court should declare summons duly served where the defendant refused to endorse acknowledgment of service.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Service of Process — Service on Adult Family Member
Where a defendant cannot be found, service may be made on an adult member of the family residing with the defendant under Order 5 rule 13 of the Civil Procedure Rules.
Civil Procedure — Service of Process — Refusal to Endorse Summons
Where the court is satisfied that a defendant or person receiving service on his behalf has refused to endorse acknowledgment of service, the court may declare the summons to have been duly served under Order 5 rule 14 of the Civil Procedure Rules.
Civil Procedure — Setting Aside Default Judgment — Effective Service
A default judgment will not be set aside under Order 36 rule 11 of the Civil Procedure Rules where service was effective. Service is effective where the defendant was made aware of the proceedings through communication with the process server via family members and local officials, even where the defendant refused to personally receive or endorse the summons.

Legislation cited (9)

Cases cited (3)

  • Kifamba Musoke v Kiwalabye Steven (Miscellaneous Application No. 576 of 2013)
  • M.B. Automobiles Vs Kampala Bus Service [1966] E.A
  • Pinnacle Projects Ltd v Business in Motion (High Court Miscellaneous Application No. 362 of 2010)

Full judgment

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

Kayemba v MS Huadar Guang Dong Chinese Co. Ltd (Miscellaneous Application No. 98 of 2017) [2018] UGCommC 48 (24 July 2018)
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.