Wakilii

Kayondo Joseph Asimwe v Azaan Trading Co. Limited (Miscellaneous Application 569 of 2022)

High Court · [2025] UGCOMMC 111 · 2025 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal of civil suit for non-appearance under Order 9 Rule 18 of the Civil Procedure Rules
Decision
Application granted; dismissal order set aside; suit reinstated for hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that an advocate or law clerk may competently depose an affidavit in support of an application to set aside dismissal where the grounds relate to miscommunication between court and counsel. Sufficient cause for non-appearance was established where counsel was not notified of hearing dates despite follow-up correspondence. The dismissal was set aside and the suit reinstated.

Outcome

Application granted; dismissal order set aside; suit reinstated for hearing

Facts

The applicant filed Civil Suit No. 124 of 2019 against the respondent claiming damages for breach of contract arising from the sale of a defective motor vehicle. The suit was fixed for hearing on 17 February 2022, but the judge was indisposed. Counsel was told the court would notify him of new dates. On 3 March 2022, the applicant's law firm wrote to court requesting hearing dates. Without notice to either party, the suit was called on 23 March, 5 April, and 19 April 2022. When neither party appeared on 19 April 2022, the court dismissed the suit under Order 9 Rule 17 of the Civil Procedure Rules. On 20 April 2022, the applicant's law clerk discovered the dismissal. The applicant brought this application to set aside the dismissal on grounds of miscommunication between court and counsel.

Issues

  1. Whether the affidavit in support is incompetent and defective for having been deponed by a person without direct knowledge and vested interest in the case.
  2. Whether the order for the dismissal of Civil Suit No. 124 of 2019 should be set aside and the suit reinstated.

Orders

  • The order dismissing Civil Suit No. 124 of 2019 is hereby set aside and the suit is accordingly re-reinstated.
  • The suit is adjourned to 10th June 2025 at 9:00am by which date the parties should have filed their respective trial bundles and Joint Scheduling Memorandum.
  • Counsel for the respondent/Defendant is to be served and a return of service filed before then.
  • The costs of the application are to abide the outcome of the suit.

Rules and key headnotes

Civil Procedure — Affidavits — Competence of Deponent — Advocate or Law Clerk
An advocate or law clerk instructed by a party may competently depose an affidavit in support of an application where the grounds relate to matters within their direct knowledge, such as miscommunication between court and counsel, without requiring separate authorization beyond the initial instruction to represent the party.
Civil Procedure — Dismissal for Non-Appearance — Setting Aside — Sufficient Cause
Miscommunication between court and counsel constitutes sufficient cause for non-appearance under Order 9 Rule 18 of the Civil Procedure Rules where counsel was not notified of hearing dates despite having made diligent follow-up inquiries and the court had indicated it would notify counsel of new dates.
Civil Procedure — Dismissal for Non-Appearance — Mistakes of Counsel — Effect on Litigant
Mistakes, faults, lapses and dilatory conduct of counsel should not be visited on the litigant, particularly where the litigant has instructed counsel and cannot be expected to act beyond what is within their knowledge regarding the status of the case.

Legislation cited (6)

  • Civil Procedure Rules O.9 r.17
  • Civil Procedure Rules O.9 r.18
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.52 r.3
  • Civil Procedure Rules O.3 r.1
  • Evidence Act s.117

Cases cited (19)

  • Nicholas Roussos v Gulamhussein Habibi Viani & Anor (Civil Appeal No. 9 of 1993)
  • Attorney General v AKPM Lutaaya (Supreme Court Civil Appeal No. 12 of 2007)
  • Ongom v Nyero (Civil Appeal No. 14 of 2001)
  • Nakanja v Wamala & 2 Others (Miscellaneous Application No. 001 of 2019)
  • Lukwajju v Mucunguzi (Miscellaneous Application No. 862 of 2011)
  • Kaingana v Dabo Boubou [1986] HCB 59
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Namutebi Matilda v Ssemanda Simon and 2 Others (Miscellaneous Application No. 430 of 2021)
  • Mugo and others v Wanjiri (1970) EA 981
  • Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers' Society and two others (Miscellaneous Civil Application No. 696 of 2018)
  • Shabir Din v Ram Parkash Anand (1955) 22 EACA 48
  • Stewards of Gospel Talents Ltd v Nelson Onyango & 7 Ors [2009] UGHC 182
  • United Office Equipment and Stationery Supply E.A v Uganda Bookshop Ltd [1987] HCB 90
  • Sango Bay Estates Ltd v Dresdner Bank [1971] EA 17
  • G M Combined (U) Limited v A. K. Detergents (U) Limited (Supreme Court Civil Appeal No. 34 of 1995)
  • Yowasi Kabiguruka v Samuel Byarufu (Civil Appeal No. 18 of 2008)
  • Hajati Safina Nabai v Yafesi Lule (Civil Appeal No. 9 of 1978)
  • Busingye & Anor v Gianluigi & Anor [2014] UGCommC 66
  • Rossette Kizito v Administrator General and others (Supreme Court Civil Application No. 9 of 1986)

Full judgment

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Kayondo Joseph Asimwe v Azaan Trading Co. Limited (Miscellaneous Application 569 of 2022) [2025] UGCommC 111 (16 May 2025)
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.