Wakilii

Komax Motor Vehicle Company Limited and 2 Others v Idha (Miscellaneous Application 15 of 2023)

High Court · [2023] UGHCCD 264 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte order and enlarge time for filing defence arising from Civil Suit No. 003 of 2023
Decision
Ex parte order set aside; applicants granted extension of time to file defence; matter to proceed inter partes

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) 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.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. 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

The court set aside its earlier order permitting ex parte proceedings under section 98 of the Civil Procedure Act. The applicants demonstrated on a balance of probabilities that they had instructed counsel timeously to file a defence, but counsel failed to do so. This constituted sufficient grounds to invoke the court's inherent powers to meet the ends of justice. Time was enlarged for filing the defence. The applicants were ordered to pay costs thrown away by the ex parte proceedings.

Outcome

Ex parte order set aside; applicants granted extension of time to file defence; matter to proceed inter partes

Facts

The respondent sued the applicants for breach of contract, alleging they failed to deliver and register an Isuzu Elf Truck he had paid for, and instead re-exported it to South Sudan. The applicants were served with summons on 29 March 2023 and had 15 days to file a defence. They instructed counsel Kinyera David and paid fees through his agent on 12 April 2023, within the permitted timeline. Counsel failed to file the defence. When the suit was called for hearing on 10 July 2023, the applicants appeared without counsel and explained they had been unable to file due to a family bereavement. The court allowed the respondent's application for ex parte hearing. The applicants filed this application on 13 July 2023 to set aside the ex parte order.

Issues

  1. Whether the Applicants have demonstrated a basis for setting aside the order of court allowing Civil Suit No. 003 of 2023 to proceed ex parte?
  2. Whether time ought to be enlarged for the Applicants to file their Written Statement of Defence?
  3. What remedies are available to the parties?

Orders

  • The Order of this Court given on 10 July 2023 allowing civil suit No. 003 of 2023 to proceed ex parte is hereby set aside under section 98 of the CPA.
  • The ex parte proceedings in Civil Suit No. 003 of 2023 between the parties herein is consequently set aside.
  • Time is hereby enlarged pursuant to section 96 of the CPA to enable the Applicants lodge their Written Statement of Defence in Civil Suit No. 003 of 2023.
  • The Applicants shall file Written Statement of Defence within 10 (ten days) from the date of this Ruling.
  • The Respondent may lodge its response to the Applicants' Defence/pleading within 15 days from the date of service.
  • The Applicants shall pay costs of this Application being thrown away costs and costs associated with the ex parte proceedings under section 27 of the CPA to the Respondent.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Orders — Distinction Between Order 9 Rules 12 and 27 CPR
Order 9 rule 12 of the Civil Procedure Rules applies only where judgment has been entered under Order 9 rules 6, 7, or 8, or by the Registrar under Order 50. It does not apply to an order permitting ex parte proceedings under Order 9 rule 11(2) where no final judgment has yet been delivered. Order 9 rule 27 applies to setting aside an ex parte decree after judgment is passed. The two rules are distinct in scope and application.
Civil Procedure — Inherent Powers of Court — Section 98 CPA — Setting Aside Ex Parte Orders
Where Order 9 rules 12 and 27 of the Civil Procedure Rules are inapplicable to the procedural stage reached, the court may exercise its inherent powers under section 98 of the Civil Procedure Act to set aside an order for ex parte proceedings if the ends of justice require it. Section 98 does not require proof of sufficient cause in the strict sense, but requires the court to consider all circumstances and act judicially to meet the ends of substantive justice.
Civil Procedure — Sufficient Cause — Counsel Negligence — Timeous Instruction of Counsel
Where a party demonstrates on a balance of probabilities that counsel was instructed within the permitted timeline but counsel failed to file the required pleading due to negligence or inaction, this constitutes grounds for invoking the court's discretion to grant relief. A party should not be made to suffer for the omissions of counsel where timeous instruction is proven. However, undue delay in seeking relief after discovering counsel's failure may be taken into account.
Civil Procedure — Proof of Instruction to Counsel — Burden of Proof
Where an applicant adduces evidence of payments to counsel within the permitted timeline for filing pleadings and states the purpose as legal fees or court representation, in the absence of evidence from the counsel or recipient denying the instruction or disputing the purpose of payment, the court may find on a balance of probabilities that timeous instruction was given. He who denies proper instruction bears the burden of proving the denial.

Legislation cited (11)

Cases cited (22)

  • Agadi Didi v James Namakaso (High Court Civil Suit No. 1230 of 1988)
  • Kanji Devji v Damodar Jinabhai & Co (1934) 1 EACA 87
  • Sengendo v Attorney General (1972) EA 140
  • D.D Bawa Limited v G.S Didar Singh [1961] EA 282
  • Nicholos Roussos v Gulamhussein Habib Virani & another (Civil Appeal No. 9 of 1993)
  • Attorney General & Uganda Land Commission v James Mark Kamoga and James Kemala (Civil Appeal No. 8 of 2004)
  • Patel v E.A Cargo Handling Services [1974] EA 75
  • Sebei District Administration v Gashai [1968] EA 300
  • Kimani v Mcconnell [1966] EA 547
  • Mbogo v Shah [1968] EA 93
  • Shabin Din v Ram Parkesh Anand (1955) EACA 48
  • Mitha v Ladak [1960] EA 1054
  • Zirabamuzaale v Correct [1962] EA 694
  • Patel v Star Mineral Water and Ice Factory [1961] EA 454
  • Capt. Philip Ongom v Catherine Nyero Owota (Civil Appeal No. 14 of 2001)
  • Suleiman v Salim Kabambalo (Civil Appeal No. 32 of 1995)
  • National Union of Clerical Commercial Professional and Technical Employees v National Insurance Corporation (Civil Appeal No. 17 of 1993)
  • Rawal Vs. Mombasa Hardware Ltd (1968)
  • Adonia v Mutekanga (1970) EA 429
  • Eva Kyowala v Lakeri Naluwoza (High Court Civil Suit No. 518 of 1995)
  • Navichandra Kakubhai Radia v Kukubhai Kalidas & Co. Ltd (Civil Appeal No. 10 of 1994)
  • United Assurance Co Ltd v AG (Civil Appeal No. 1 of 1986)

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

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Komax Motor Vehicle Company Limited and 2 Others v Idha (Miscellaneous Application 15 of 2023) [2023] UGHCCD 264 (12 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.