Wakilii

Kiggwe v Babirye and Another (Miscellaneous Application No. 910 of 2021)

High Court · [2022] UGHCLD 63 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte judgment arising from Civil Suit No. 309 of 2015
Decision
Application to set aside ex parte judgment dismissed; ex parte judgment and decree in Civil Suit No. 309 of 2015 remain in force

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application to set aside an ex parte judgment. The court held that the applicant had been duly served through his former counsel who acknowledged receipt of mediation notices in September 2015, and through substituted service at his home via the LC1 Chairman. The applicant's failure to file a defence despite being served, and his delay of six years before challenging the judgment, demonstrated a lack of vigilance. The court found that the applicant had not shown sufficient cause to warrant setting aside the judgment, particularly where the orders had already been executed through cancellation of the title.

Outcome

Application to set aside ex parte judgment dismissed; ex parte judgment and decree in Civil Suit No. 309 of 2015 remain in force

Facts

The respondents filed Civil Suit No. 309 of 2015 seeking declarations that land comprised in Kyadondo Block 245, plot 259 at Kiwuliriza had been illegally subdivided creating plots 494 and 495, and that registration in the names of the applicant and one Ronald Dennis Dujang was illegal. Summons to file a defence were sealed on 30 April 2015. The applicant's former counsel M/s Luzige, Lubega, Kavuma & Co. Advocates acknowledged receipt of mediation notices on 16 September 2015. When the applicant failed to appear, ex parte judgment was entered in favour of the respondents. The applicant claimed he only learned of the judgment on 7 May 2021 when tenants informed him of potential buyers visiting the land. The certificate of title for plot 494 had been cancelled pursuant to the court's orders. The applicant filed this application on the grounds that he had not been duly served and had been denied his right to be heard.

Issues

  1. Whether the applicant was duly served with summons to file a defence in Civil Suit No. 309 of 2015.
  2. Whether sufficient cause has been shown to set aside the ex parte judgment and decree entered in Civil Suit No. 309 of 2015.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Judgment — Service of Process — Effective Service Through Counsel
Service of court process on an advocate who has instructions to represent a party is effective service and is as effectual as if the process had been served on the party in person. Where a party's counsel acknowledges receipt of court documents, the party cannot later deny knowledge of the proceedings.
Civil Procedure — Setting Aside Ex Parte Judgment — Sufficient Cause — Mistake of Counsel
While mistake or negligence of counsel may constitute sufficient cause to set aside an ex parte judgment, this principle has limits. A litigant must demonstrate vigilance by following up on their case with counsel. Where a party knows about proceedings through service on counsel but sits passively for years until judgment is passed, equity will not assist them as equity is for the vigilant.
Civil Procedure — Setting Aside Ex Parte Judgment — Requirements Under Order 9 Rule 27 CPR
To set aside an ex parte decree under Order 9 rule 27 of the Civil Procedure Rules, an applicant must satisfy the court that summons was not duly served or that they were prevented by sufficient reason from appearing when the suit was called for hearing. The main test is whether the applicant honestly intended to attend the hearing and did their best to do so.
Civil Procedure — Service of Process — Substituted Service — Service Through LC1 Chairman
Where personal service cannot be effected because a party refuses to open their premises to the process server, substituted service by affixing documents at the gate and obtaining endorsement from the LC1 Chairman constitutes effective service under Order 5 rule 15 of the Civil Procedure Rules.

Legislation cited (6)

Cases cited (12)

  • Lawrence Musitwa Kyaze v Eunice Busingye (Supreme Court Civil Appeal No. 78 of 1990)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Joseph Mulenga v Photo Focus (U) Ltd (1999) 1 KALR 79
  • Dr. Byarugaba v Nantarwa (High Court Miscellaneous Application No. 229 of 2019)
  • Erukana Omuchilo v Ayub Mudindi [1966] EA 229
  • Lucas Marisa v Uganda Breweries Ltd (1988-1990) HCB 131
  • Mary Kyotawabi v Ahmed Zirandemu (Civil Appeal No. 41 of 1979)
  • Zamu Namunsi v Samwiri Mule (Court of Appeal No. 2 of 1992)
  • Nicholas Roussos v Gulamhussein Habib Virani and Another (Supreme Court Civil Appeal No. 9 of 1993)
  • National Insurance Corporation v Mugenyi and Company Advocates [1987] HCB 28
  • Kirya Grace Wanzala v Daudi Migereko and Another (Election Reference Appeal No. 39 of 2012)
  • David Kato Luguza and Another v Evelyn Nakafeero and Another (Civil Appeal No. 37 of 2011)

Full judgment

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

Kiggwe_v_Babirye_and_Another_(Miscellaneous_Application_No._910_of_2021)_[2022]_UGHCLD_63_(11_May_2022)
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.