Wakilii

Kitongo & Another v Lystra Investment Limited (Miscellaneous Application 544 of 2023)

High Court · [2023] UGCOMMC 258 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default judgment and decree entered in Civil Suit No. 999 of 2022 and for leave to appear and defend
Decision
Application to set aside default judgment dismissed; default judgment in Civil Suit No. 999 of 2022 stands

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 a default judgment. The applicants failed to prove sufficient cause under Order 36 Rule 11 of the Civil Procedure Rules. Effective service of summons was admitted. The applicants did not adduce evidence that they instructed counsel who failed to file an application for leave to appear and defend. The default judgment was properly entered by the Registrar in the absence of any timely application for leave to appear and defend within the prescribed ten-day period.

Outcome

Application to set aside default judgment dismissed; default judgment in Civil Suit No. 999 of 2022 stands

Facts

The first applicant obtained a loan of UGX 25,236,000 from the respondent at 20% monthly interest, secured by a motor vehicle. The second applicant was guarantor. The first applicant paid UGX 5,000,000 and defaulted on the balance. The respondent filed Civil Suit No. 999 of 2022. Summons were served on the applicants. The applicants did not file an application for leave to appear and defend within the prescribed ten days. On 20 December 2022, the applicants' lawyers submitted Miscellaneous Application No. 036 of 2023 for extension of time and leave to appear and defend, filed on 11 January 2023. Default judgment was entered on 12 January 2023. On 21 February 2023, the court closed the main suit and observed that M.A. No. 036 of 2023 had been overtaken by events. A similar application appears to have been filed in February 2023, and the present application was filed in April 2023.

Issues

  1. Whether this is a proper case for setting aside the Judgment/Decree in Civil Suit No. 999 of 2022 and granting the Applicants leave to appear and defend the said suit.

Orders

  • Application dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Civil Procedure — Setting Aside Default Judgment — Order 36 Rule 11 — Requirements
A judgment entered under Order 36 of the Civil Procedure Rules can only be set aside under Order 36 Rule 11 if the court is satisfied that service of summons was not effective, or for any other good cause which shall be recorded.
Civil Procedure — Good Cause — Definition and Application
The phrase 'good cause' means a legally sufficient reason and must relate to the inability or failure to take the particular step in time.
Civil Procedure — Advocate's Negligence — Burden of Proof
While negligence of counsel ought not be visited on an innocent litigant, the litigant must adduce evidence such as notice of instruction or an affidavit from the advocate to prove that counsel was indeed instructed and failed to carry out instructions.
Civil Procedure — Default Judgment — Entry by Registrar — Unserved Application for Extension of Time
An unserved application for extension of time does not displace the requirement to file an application for leave to appear and defend within the ten days specified in the summons. In default of such application, the plaintiff is entitled to a decree under Order 36 Rule 3(2) of the Civil Procedure Rules.

Legislation cited (7)

Cases cited (3)

  • Pinnacle Projects Limited v Business in Motion (High Court Miscellaneous Application No. 362 of 2010)
  • Mugo v Wanjiri [1970] EA 481
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)

Full judgment

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

Kitongo & Another v Lystra Investment Limited (Miscellaneous Application 544 of 2023) [2023] UGCommC 258 (19 September 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.