Wakilii

Kinyara Sugar Limited v Kyomuhendo (Miscellaneous Application 85 of 2021)

High Court · [2023] UGHC 144 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte judgment from Civil Suit No. 003 of 2017
Decision
Exparte judgment set aside; matter remitted for defence to be filed and suit to proceed on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that service of summons on an unnamed person at the reception of a corporate defendant is not proper service under Order 29 rule 2 CPR, which requires service on the secretary, director, or principal officer. The exparte judgment was set aside on grounds that summons was not duly served. The applicant was not guilty of dilatory conduct, having filed the fresh application five days after dismissal of the earlier incompetent application.

Outcome

Exparte judgment set aside; matter remitted for defence to be filed and suit to proceed on merits

Facts

The respondent filed Civil Suit No. 003 of 2017 against the applicant company for breach of contract damages on 1 February 2017. According to an affidavit of service dated 28 February 2017, the applicant was allegedly served with summons to file defence on 7 February 2017. The applicant failed to file a written statement of defence. Default judgment was granted on 15 May 2017, the suit was set down for formal proof on 24 October 2017, and exparte judgment was passed on 23 July 2020. The applicant's company secretary discovered the judgment on 28 July 2020 while at court on another matter. He found that the summons bore a stamp similar to his office stamp but no signature, and the office administrator denied receiving it. The applicant filed Miscellaneous Application No. 61 of 2020 on 1 September 2020 to set aside the judgment, but it was dismissed on 4 November 2021 for being incompetent as it had not been properly signed and sealed. The present application was filed on 9 November 2021, five days after that dismissal.

Issues

  1. Whether the Applicant is guilty of dilatory conduct in filing the application to set aside the exparte judgment.
  2. Whether there are grounds to set aside the exparte judgment under Order 9 rule 27 of the Civil Procedure Rules.

Orders

  • Application granted.
  • Exparte judgment passed against the Defendant in Civil Suit No. 3 of 2017 set aside.
  • Applicant to file defence within 14 days from date of ruling.
  • Costs to abide the outcome of the main cause.

Rules and key headnotes

Service of Process — Corporations — Requirements under Order 29 rule 2 CPR
For proper service of summons on a corporation under Order 29 rule 2 of the Civil Procedure Rules, the summons must be served on the secretary, director, or other principal officer of the corporation; service on an unnamed person at the reception desk does not constitute effective service.
Service of Process — Who May Receive Service — Receptionists and Secretaries Distinguished
A secretary or receptionist of a company is not a duly authorised agent of the company for purposes of receiving court process; the term 'Secretary' in Order 29 rule 2 CPR refers to the company secretary, not a receptionist or clerical employee.
Setting Aside Exparte Judgments — Grounds under Order 9 rule 27 CPR
Under Order 9 rule 27 of the Civil Procedure Rules, where a defendant satisfies the court that summons was not duly served, the court shall set aside an exparte decree passed against the defendant upon such terms as to costs or otherwise as it thinks fit.
Dilatory Conduct — Assessment where Fresh Application Filed After Dismissal of Earlier Application
A party who files a fresh application five days after dismissal of an earlier incompetent application on a technical defect, and who had filed the earlier application within two months of the impugned judgment, is not guilty of dilatory conduct.

Legislation cited (4)

  • Civil Procedure Rules O.9 r.27
  • Civil Procedure Rules O.29 r.2
  • Civil Procedure Rules O.5 r.1
  • Civil Procedure Rules O.5 r.1(5)

Cases cited (1)

  • Augustine Okurut v Gerald Lwasa and Another (1988-1990) HCB 164

Full judgment

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Kinyara Sugar Limited v Kyomuhendo (Miscellaneous Application 85 of 2021) [2023] UGHC 144 (27 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.