Wakilii

Kigemuzi and 5 Other v Mande and 4 Others (Miscellaneous Application 855 of 2022)

High Court · [2023] UGHCLD 352 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex-parte judgment and decree in Civil Appeal No. 73 of 2018 arising from Entebbe Chief Magistrates Court Civil Suit No. 207 of 2011
Decision
Application to set aside judgment dismissed; ex-parte judgment in Civil Appeal No. 73 of 2018 remains in effect

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application to set aside an ex-parte judgment in an appeal. The applicants claimed they were not served because their former lawyers no longer had instructions, but failed to file any notice of withdrawal or change of advocates. The court held that where no notice of change is filed, opposing parties and the court are entitled to assume continuing instructions. The applicants' delay of two years in filing the application after judgment, without explanation, evidenced intent to delay justice.

Outcome

Application to set aside judgment dismissed; ex-parte judgment in Civil Appeal No. 73 of 2018 remains in effect

Facts

The applicants were successful parties in Entebbe Chief Magistrates Court Civil Suit No. 207 of 2011. The respondents appealed to the High Court (Civil Appeal No. 73 of 2018). The memorandum of appeal and hearing notices were served on M/s Byamugisha Lubega Ochieng & Co. Advocates, the firm that had represented the applicants at trial. The applicants did not file submissions in the appeal. On 5 October 2020, the High Court delivered judgment allowing the appeal ex parte. The applicants learned of the judgment in December 2021 when the area local chairperson received a taxation notice. The applicants filed this application on 26 May 2022 seeking to set aside the judgment, claiming they were never served because their former lawyers no longer had instructions. No notice of withdrawal or change of advocates had been filed on record at any stage.

Issues

  1. Whether the applicants were duly served with the memorandum of appeal and hearing notices in Civil Appeal No. 73 of 2018.
  2. Whether the applicants demonstrated sufficient cause to warrant setting aside the ex-parte judgment and decree.
  3. Whether the delay in filing the application to set aside the judgment was justified.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Service of Process — Notice of Change of Advocates — Duty to Notify Court and Opposite Counsel
Where an advocate receives instructions in a matter, the onus is on that advocate to take steps to make it known to all concerned that he or she has been duly instructed by filing a notice of instruction informing the court and opposite counsel. Where there is a change in instructions, a prudent advocate files a notice of change of advocates to avoid challenges to instructions.
Civil Procedure — Service of Process — Presumption of Continuing Instructions — Absence of Notice
Where no notice of withdrawal of instructions or notice of change of advocates is filed on record, opposing parties and the court are entitled to presume that advocates on record continue to have instructions to represent their clients.
Civil Procedure — Setting Aside Judgment — Inordinate Delay — Intention to Delay Justice
Delay of two years in filing an application to set aside a judgment, coupled with delay of four years in filing notice of change of advocates, and without any explanation for the delay, evidences an intention to delay the course of justice and deny the successful party quick access to the benefits of their judgment.

Legislation cited (3)

Cases cited (3)

  • Okodoi and Another v Okello (Miscellaneous Application No. 143 of 2016)
  • [1978] HCB 297
  • [1978] HCB 297

Full judgment

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

Kigemuzi_and_5_Other_v_Mande_and_4_Others_(Miscellaneous_Application_855_of_2022)_[2023]_UGHCLD_352_(11_October_2023)
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.