Wakilii

Kemigisa v The Registered Trustees of the Orthodox Church of Uganda (HCT-01-LD-MA-0055-2025)

High Court · [2025] UGHC 1167 · 2025 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside interlocutory judgment entered in default of defence and for leave to file defence out of time
Decision
Interlocutory judgment set aside; applicant granted leave to file defence out of time; main suit to proceed on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that substituted service by newspaper advertisement, though procedurally compliant, was ineffective where the defendant was abroad and lacked actual notice, constituting sufficient cause under Order 9 rule 27 CPR to set aside the interlocutory judgment. The court distinguished between good service in form and effective service in substance. Where a proposed defence raises triable issues on ownership and the applicant acted promptly upon learning of the judgment, leave to file defence out of time should be granted to ensure disputes are resolved on their merits rather than by procedural default.

Outcome

Interlocutory judgment set aside; applicant granted leave to file defence out of time; main suit to proceed on merits

Facts

The Respondent church sued the Applicant, administratrix of an estate, claiming ownership of 22 acres allegedly donated by a late King in 1962 and later transferred by his successor. The Applicant was served with summons through substituted service by newspaper advertisement pursuant to court order. She failed to file a defence and interlocutory judgment was entered against her on 25 May 2024, setting the matter down for assessment of damages. The Applicant then applied to set aside the judgment, averring she was out of the country when the advertisement was published and therefore never received notice. She claimed to be the registered proprietor of the land and attached a proposed defence disputing the Respondent's claims. The Respondent opposed, arguing service was procedurally compliant and the Applicant provided no proof of being abroad.

Issues

  1. Whether the Applicant has shown sufficient cause to warrant the setting aside of an interlocutory judgement entered against her on 25th May 2024.
  2. Whether the Applicant should be granted leave to file a defence out of time.

Orders

  • The interlocutory judgment entered against the Applicant on the 25th May 2024 in Civil Suit No. 74 of 2023 is hereby set aside.
  • The Applicant is granted leave to file her Written Statement of Defence out of time. The same shall be filed within 15 days from the date of this Ruling.
  • The main suit (HCT-01-CV-LD-CS-74-2023) shall proceed to be determined on its merits.
  • Costs of this application shall abide the outcome of the main suit.

Rules and key headnotes

Service of Process — Substituted Service — Distinction Between Good Service and Effective Service
Substituted service by newspaper advertisement, though procedurally compliant with court order and the Civil Procedure Rules, may be ineffective if it fails to bring the proceedings to the defendant's actual knowledge, particularly where the defendant was abroad at the time of publication and had no opportunity to become aware of the summons.
Setting Aside Default Judgment — Sufficient Cause — Ineffective Service
Under Order 9 rule 27 of the Civil Procedure Rules, ineffectiveness of substituted service due to a defendant's absence from the jurisdiction at the time of publication constitutes sufficient cause to set aside an interlocutory judgment entered in default of defence, as upholding such judgment would risk a miscarriage of justice.
Setting Aside Default Judgment — Burden of Proof — Uncontroverted Affidavit Evidence
Where an applicant seeking to set aside a default judgment deposes on affidavit that she was abroad and unaware of substituted service, and the respondent offers no counter-evidence beyond mere denial, the sworn affidavit suffices as prima facie evidence of lack of awareness, and the respondent's failure to rebut it does not discharge their burden to contradict the claim.
Leave to File Defence Out of Time — Meritorious Defence — Substantive Justice
The court's inherent powers under Section 98 of the Civil Procedure Act and Section 37 of the Judicature Act should be exercised to grant leave to file a defence out of time where the proposed defence raises triable issues on ownership and possession, as the administration of justice requires that disputes be investigated and decided on their merits rather than by procedural default.

Legislation cited (5)

Cases cited (7)

  • Adjumani District Local Government v Akule Abuni Albino & 3 Others (Misc. Application No. 56 of 2023)
  • Re Christine Namatovu Tebajjukira [1992-93] HCB 85
  • Gatete v Kyobe & Another (Civil Suit No. 7 of 2005)
  • Bitamisi v Rwabuganda (Civil Application No. 04 of 2015)
  • Nicholas Roussos v Gulamhussein Habib Virani & Another (Civil Appeal No. 6 of 1995)
  • Attorney General v Akena Martin (Misc. Application No. 0110 of 2022)
  • Katto v Den Brink (Misc. Application No. 791 of 2023)

Full judgment

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

Kemigisa v The Registered Trustees of the Orthodox Church of Uganda (HCT-01-LD-MA-0055-2025) [2025] UGHC 1167 (6 October 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.