Wakilii

Kingstone Enterprises Ltd & 2 Ors v Metropolitan Properties Ltd (HCT-00-CC-MA 314 of 2012)

High Court · [2012] UGCOMMC 166 · 2012 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 obtained under summary procedure in a commercial dispute
Decision
Application to set aside ex-parte judgment dismissed with costs; ex-parte judgment and decree remain in force

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application dismissed. The court held that although the application was brought under Order 9 of the Civil Procedure Rules instead of the applicable Order 36 rule 11 governing summary procedure, the procedural error was not fatal. However, substituted service of summons by order of court was effective and the applicants failed to show good cause for not filing an application for leave to appear and defend the main suit. The application to set aside the ex-parte judgment and decree was accordingly dismissed with costs.

Outcome

Application to set aside ex-parte judgment dismissed with costs; ex-parte judgment and decree remain in force

Facts

The applicants sought to set aside an ex-parte judgment and decree obtained by the respondent in Civil Suit No. 129 of 2011 under summary procedure. The main suit arose from a claim for US$50,000 paid by the respondent to the first applicant as part payment for land the first applicant undertook to sell after obtaining title. The second and third applicants guaranteed repayment under a Memorandum of Understanding dated 27 November 2008. When the first applicant failed to obtain title or refund the money, the respondent sued and obtained ex-parte judgment after the applicants failed to appear. The applicants were served by substituted service. The third applicant claimed he had no notice of service as he was resident in Nairobi. The applicants brought this application under the wrong procedural rules (Order 9 instead of Order 36), challenged the effectiveness of substituted service, and argued they had a good defence on the merits.

Issues

  1. Whether the application was brought under the correct procedural law applicable to summary procedure judgments.
  2. Whether substituted service of summons on the applicants was effective.
  3. Whether the applicants showed good cause for their failure to file an application for leave to appear and defend the main suit.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.
  • Matter referred to the Chief Registrar to verify whether Eddie Wabusa is on the roll of advocates, and if not, to report to the Law Council.

Rules and key headnotes

Civil Procedure — Procedural Errors — Wrong Procedure Not Fatal Where Not Fundamental
Where an application is brought under the wrong procedural rule, the error is not fatal provided it does not prejudice the other party and the substance of the dispute can be decided on its merits. Matters of procedure are not normally of a fundamental nature and courts should foster hearing and determination of disputes rather than hinder them on purely procedural grounds.
Civil Procedure — Summary Procedure — Setting Aside Ex-Parte Decree — Applicable Law
Applications to set aside a decree obtained under summary procedure (Order 36 of the Civil Procedure Rules) must be brought under Order 36 rule 11, which is self-contained and does not require supplement of other rules. Order 36 rule 11 is the correct procedure, not Order 9 which relates to ordinary suits.
Civil Procedure — Service of Process — Substituted Service — Effectiveness
Substituted service of summons under an order of court is as effectual as personal service on the defendant. Where direct service has failed due to inability to locate the defendant at known addresses, and substituted service is effected in accordance with law and court order, there is no basis to challenge its effectiveness.
Civil Procedure — Setting Aside Ex-Parte Judgment — Requirements — Good Cause
Under Order 36 rule 11 of the Civil Procedure Rules, before a court may set aside an ex-parte decree obtained under summary procedure, the applicant must show either that service of summons was not effective or must demonstrate good cause which prevented them from applying for leave to appear and defend the main suit. The burden is on the applicant to state a justifiable reason for their inaction.
Civil Procedure — Good Cause — Definition — Sufficient Reason
Good cause means a legally sufficient reason which relates to the inability or failure to take a particular step in time. Circumstances which may amount to good cause include mistake by an advocate though negligent, ignorance of procedure by an unrepresented defendant, and illness of a party. The applicant must state justifiable reasons excusing their failure to take necessary action.

Legislation cited (6)

Cases cited (13)

  • East Mengo Growers Co-operative Union Ltd v Nyangweso Francis [1996] HCB 50
  • Kinyanjui & Another v Thande & Another [1995-98] EA 159
  • Francis Wazarwahi Bwengye v Haki W Bonera (Civil Appeal No. 33 of 2009)
  • Tarlol Singh Saggu v Roadmaster Cycles (U) Ltd (CACA No. 46 of 2000)
  • Nanjibhai Prabhudas & Co Ltd v Standard Bank Ltd [1968] 1 EA 670
  • Re Christine Namatovu Tebajjukira [1992-93] HCB 85
  • Banco Arabe Espanol v Bank of Uganda (SCCA No. 8 of 1998)
  • Nyombi v Anna Mary Nalongo (Civil Suit No. 819 of 1986)
  • Semakula Haruna v Stanbic Bank (U) Ltd (HCCS No. 432 of 2009)
  • Violet K Mukasa v Erizafani Matovu [1992-1993] HCB 235
  • Total (U) Ltd v Barumba General Agencies (Arbitration Application No. 3 of 1998)
  • Rosette Kizito v Administrator General and Others (Supreme Court Civil Application No. 9 of 1986)
  • Nicholas Roussos v Gulamhussein Habib Virani & Another (Civil Appeal No. 9 of 1993)

Full judgment

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

Kingstone Enterprises Ltd & 2 Ors v Metropolitan Properties Ltd (HCT-00-CC-MA 314 of 2012) [2012] UGCommC 166 (21 December 2012)
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.