Wakilii

Kiyimba v Dooba Enterprises Ltd (Miscellaneous Application No. 89 of 2012)

High Court · [2012] UGCOMMC 174 · 2012 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte judgment in default of defence
Decision
Default judgment varied: judgment entered for admitted sum of UGX 250,000,000 with interest and costs; leave granted to file defence regarding disputed UGX 50,000,000; matter to proceed to trial on remaining issues including damages and interest.

Observed later treatment

Treatment recorded in citing cases followed in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Good law Followed in 1 case and applied in 0 cases, with no adverse treatment recorded. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Court partially set aside the default judgment and varied it to enter judgment for the admitted portion of the claim (UGX 250,000,000) with interest at 8% and costs, while granting leave to the applicant to file a defence regarding the disputed balance of UGX 50,000,000. The proposed defence of frustration was deemed insufficient to challenge the admitted liquidated sum under clause 5 of the contract, which expressly provided for refund or an alternative plot if development plans were rejected. Time was enlarged for the applicant to file his defence within 15 days.

Outcome

Default judgment varied: judgment entered for admitted sum of UGX 250,000,000 with interest and costs; leave granted to file defence regarding disputed UGX 50,000,000; matter to proceed to trial on remaining issues including damages and interest.

Facts

In March 2010, the parties executed a contract for the sale of land at plot 83 Mpanga Close Bugolobi for UGX 300,000,000. The respondent/purchaser paid UGX 250,000,000 immediately, with a balance of UGX 50,000,000 due within one month. Clause 5 provided that if NEMA or government rejected the development plans, the vendor would refund the purchase price or provide an alternative plot. The development plans were rejected. The respondent filed suit on 8 December 2011 seeking refund. The applicant was served with summons on 19 December 2011 but failed to file a defence, claiming he was preparing for an urgent business trip and instructed his business assistant to deliver court documents to his lawyers, but the assistant forgot. Default judgment was entered for the liquidated demand (with general damages and interest expressly dispensed with) on 2 February 2012. The applicant returned from abroad, discovered the default judgment, and applied on 28 February 2012 to set it aside, arguing he had a plausible defence based on frustration of contract.

Issues

  1. Whether the applicant demonstrated sufficient cause for the default judgment to be set aside under Order 9 rule 12 of the Civil Procedure Rules.
  2. Whether the applicant has a plausible defence to the respondent's claim justifying the setting aside of the default judgment.
  3. Whether time should be enlarged for the applicant to file a defence out of time under Order 51 rule 6 of the Civil Procedure Rules.
  4. Whether the applicant's proposed defence of frustration of contract is legally available where the parties expressly contemplated the risk of development plan rejection in the contract.

Orders

  • The Applicant shall pay the Plaintiff a sum of Uganda shillings 250,000,000/= with interest at 8% from up to the date of judgment in terms of order 9 rule 6 of the Civil Procedure Rules with costs.
  • Leave is granted to the Applicant to file a defence with respect to the sum of Uganda shillings 50,000,000/=.
  • The Applicant shall pay interest on SHS 250,000,000/= at a rate to be determined after trial of the suit from the date of judgment till payment in full.
  • The dispensation of the Respondent resulting in an abandonment of its claim for damages and interest is set aside and the same shall become an issue for trial.
  • Time is enlarged for the Applicant to file his defence within 15 days from the date of this judgment.
  • Costs of the remainder of this suit to abide the outcome of the suit.

Rules and key headnotes

Setting Aside Default Judgments — Exercise of Discretion — Plausible Defence
Where an applicant seeks to set aside a default judgment under Order 9 rule 12, the court will exercise its wide discretion to do justice between the parties, but will not set aside judgment where the proposed defence admits the liquidated claim by express admission or by necessary implication under Order 8 rule 3 of the Civil Procedure Rules.
Frustration of Contract — Express Contractual Provision for Contingency
The doctrine of frustration of contract is not available as a defence where the parties have expressly contemplated the supervening event in the contract and provided for its consequences. Where a contract contains a clause warranting refund or alternative performance if a government body rejects development plans, the vendor cannot plead frustration but is bound by the express terms of the warranty.
Admissions in Pleadings — Effect of Failure to Deny
Under Order 8 rule 3 of the Civil Procedure Rules, every allegation of fact in a plaint not denied specifically or by necessary implication or stated not to be admitted shall be taken to be admitted. Where a proposed written statement of defence does not deny the vendor's liability to refund money under an express contractual warranty but only denies having failed or refused to do so, the liability itself is deemed admitted.
Variation of Default Judgments — Partial Setting Aside
The court has jurisdiction under Order 9 rule 12 not only to set aside a default judgment but also to vary it. Where part of a liquidated claim is admitted and part disputed, the court may vary the default judgment to enter judgment for the admitted portion while granting leave to defend in respect of the disputed balance.
Parol Evidence Rule — Variation of Written Contracts
Under section 91 of the Evidence Act, where the terms of a contract have been reduced to writing, no oral evidence may be given to vary the terms of the contract. The written agreement is conclusive proof of its terms and parties are bound by those terms as written.

Legislation cited (9)

Cases cited (2)

  • Ongom v Nyero owota (Supreme Court Civil Appeal No. 14 of 2001)
  • Dhillon v Dhillon [2006] 1 EA 66

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

↓ Download PDF

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

Kiyimba v Dooba Enterprises Ltd (Miscellaneous Application No. 89 of 2012) [2012] UGCommC 174 (27 April 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.