Wakilii

Kitongo William and Another v Lystra Investments Limited [2023] UGHC 544

High Court · 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 and decree in Civil Suit No. 999 of 2022 remain in force

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An application to set aside a default judgment under Order 36 Rule 11 of the Civil Procedure Rules requires proof that service was ineffective or demonstration of good cause. Where applicants admitted effective service, failed to file an application for leave to appear and defend within the prescribed ten days, and provided no evidence that counsel was instructed but negligent, no sufficient cause was shown. An unserved application for extension of time does not suspend the mandatory requirement to apply for leave within the stipulated period. Application dismissed.

Outcome

Application to set aside default judgment dismissed; default judgment and decree in Civil Suit No. 999 of 2022 remain in force

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. After paying UGX 5,000,000, the first applicant defaulted. The respondent filed Civil Suit No. 999 of 2022. Summons were served on both applicants. The ten-day period to apply for leave to appear and defend expired without such application being filed. On 20 December 2022, applicants' lawyers created an application for extension of time (M.A. No. 036 of 2023) on ECCMIS, which was filed on 11 January 2023. On 12 January 2023, the Registrar entered default judgment. On 21 February 2023, the court closed the main suit and observed that M.A. No. 036 of 2023 had been overtaken by events. Applicants then filed the present application in April 2023 seeking to set aside the default judgment and decree.

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 — Default Judgment — Setting Aside under 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 must 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, a party alleging that counsel was instructed but failed to act must adduce evidence such as a notice of instruction or an affidavit from the advocate to prove the allegation.
Civil Procedure — Leave to Appear and Defend — Mandatory Time Limit
Under Order 36 Rule 3(2) of the Civil Procedure Rules, in default of an application for leave to appear and defend within the period fixed in the summons, the plaintiff is entitled to a decree. An unserved application for extension of time does not suspend this mandatory requirement.

Legislation cited (7)

Cases cited (3)

  • Pinnacle Projects Limited v Business in Motion (HCMA No. 362 of 2010)
  • Mugo v Wanjiri [1970] EA 481
  • Banco Arabe Espanol v Bank of Uganda (SCCA 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 William and Another v Lystra Investments Limited 2023 UGHC 544 (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.