Wakilii

Kilembe Mines v Makoma (Misc. Application No. 149 of 2015)

High Court · [2015] UGHCCD 114 · 2015 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate civil suit
Decision
Civil suit reinstated for hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Court set aside dismissal order and reinstated civil suit. Held that applicant demonstrated sufficient cause for non-appearance where process server's affidavit confirmed counsel was never actually served with hearing notices despite attempted service, and the affidavit of service was filed over a year after dismissal as an apparent afterthought.

Outcome

Civil suit reinstated for hearing on merits

Facts

Civil Suit No. 766 of 2006 was dismissed on 7th May 2014 after neither party nor their counsel appeared for hearing. The case had previously been adjourned from 9th January 2014 when no parties appeared, and court on its own motion set a further mention date of 7th May 2014. Applicant's counsel contended they received no hearing notices for either date. Respondent claimed hearing notices were served and filed an affidavit of service sworn by a process server. The affidavit stated that on 10th January 2014 the process server attended applicant's lawyers' office but was told they no longer represented the applicant and should serve personally, which she was unable to do. This affidavit was commissioned and filed on 27th July 2015, over one year after dismissal and three months after the application to set aside was filed in April 2015.

Issues

  1. Whether the applicant showed sufficient cause for non-appearance to warrant setting aside the dismissal order and reinstating the suit.

Orders

  • Application allowed.
  • Dismissal order made on 7th May 2014 in Civil Suit No. 766 of 2006 set aside.
  • Civil Suit No. 766 of 2006 reinstated.
  • Suit to be heard on its merits.

Rules and key headnotes

Civil Procedure — Reinstatement of Dismissed Suit — Sufficient Cause
Under Order 9 rule 18 of the Civil Procedure Rules, a plaintiff may apply to set aside a dismissal order upon showing sufficient cause for non-appearance, and non-service of hearing notices constitutes sufficient cause.
Civil Procedure — Service of Process — Affidavit of Service Filed Long After Event
An affidavit of service filed over one year after the event it purports to prove and after the application to set aside dismissal has been filed may be treated as an afterthought and given reduced weight.

Legislation cited (3)

Full judgment

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Kilembe Mines v Makoma (Misc. Application No. 149 of 2015) [2015] UGHCCD 114 (14 September 2015)
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.