Wakilii

Kotokyo Wilber William v Kaggwa and Anor (H.C.Miscellaneous Application No. 278 of 2019)

High Court · [2021] UGHCCD 26 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application seeking review and setting aside of ex-parte judgment in an underlying civil suit
Decision
Application for review and setting aside of ex-parte judgment dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that while an applicant in contempt of court should normally purge himself before seeking court's discretion, where the contempt arose in a different matter, the court may exercise discretion to hear the applicant in a new unrelated matter. However, the application for review was dismissed as the applicant failed to establish error apparent on the face of the record and did not demonstrate a defence on the merits. The applicant had been properly served with summons in the original suit and offered no justification for the alleged violations found by the trial court.

Outcome

Application for review and setting aside of ex-parte judgment dismissed

Facts

The applicant sought review and setting aside of an ex-parte judgment entered against him in Civil Suit No. 273 of 2016. The applicant claimed he was never served with summons and had a formidable defence. The 1st respondent opposed, producing an affidavit of service showing the applicant was served but declined to acknowledge receipt. The 1st respondent raised preliminary objections: that the applicant was in contempt of court arising from Miscellaneous Application No. 183 of 2016 where he was found in contempt ex-parte for non-attendance, and that the present application was served out of time. The underlying Civil Suit No. 273 of 2016 concerned alleged violations of the 1st respondent's fundamental human rights by the applicant.

Issues

  1. Whether the applicant can be heard when he is guilty of contempt of court.
  2. Whether the application is competent.
  3. Whether this is a proper case for review of court.
  4. Whether the applicant is entitled to the remedies sought.

Orders

  • Application dismissed with costs to the 1st respondent.

Rules and key headnotes

Civil Procedure — Contempt of Court — Right of Audience — Contempt in Different Matter
While a party in contempt of court should ordinarily purge himself of the contempt before seeking the court's discretion, where the contemptuous conduct arose in a different matter before a different court, the court may exercise discretion to hear the applicant in a new unrelated matter brought by another party, as the right to defend oneself should not be denied across all courts due to one incident of contempt.
Civil Procedure — Service of Process — Service Out of Time — Discretion of Court
Where an application is served outside the prescribed time but the respondent has suffered no prejudice and has filed a response, the court may exercise its discretion under Article 126 of the Constitution to overlook the delay in the interest of justice and to administer justice without undue regard to technicalities.
Civil Procedure — Review — Error Apparent on Face of Record — Definition and Scope
An error apparent on the face of the record must be self-evident, patent, manifest, and require no elaborate argument or long drawn process of reasoning to establish; it must strike one by merely looking at the record without travelling beyond the record or engaging in a process where two opinions could conceivably be held.
Civil Procedure — Review — Distinction from Appeal — Proper Remedy for Errors of Law
An erroneous view of evidence or law and erroneous conclusion of law are not grounds for review under Order 46 rule 1 of the Civil Procedure Rules, though they may be good grounds for appeal; misconstruing a statute or other provisions of law cannot be a ground for review, and the proper remedy is to appeal to a higher court.
Civil Procedure — Setting Aside Ex-Parte Judgment — Defence on Merits — Requirement
An application to set aside an ex-parte or default judgment requires the applicant to demonstrate a defence on the merits; the applicant must raise one or more issues of genuine contention which justify a trial on the merits, and it must not be a fanciful defence or a façade but a case which raises a real issue or valid basis of contention affecting the merits.

Legislation cited (3)

Cases cited (11)

  • Kabale University v Henry Rwaganika and Another (Appeal No. 007 of 2016)
  • Hankinson v Hankinson [1952] All ER 579
  • Wildlife Lodges Ltd v County Council of Narok and Another [2005] EA 344
  • Comform Uganda Limited v Megha Industries (U) Ltd (Miscellaneous Application No. 1084 of 2014)
  • MK Creditors Limited v Owora Patrick (Miscellaneous Application No. 143 of 2015)
  • Independent Medico Legal Unit v Attorney General of the Republic of Kenya {Application No. 2 of 2012; arising from Appeal No. 1 of 2011}
  • Nyamogo & Nyamogo Advocates v Kago [2001] 2 EA 173
  • MK Financiers Limited v Shah & Co Ltd (Miscellaneous Application No. 1056)
  • Edison Kanyabwera v Pastori Tumwebaze (SCCA No. 2004)
  • Mercurine Pte Ltd v Canberra Development Pte Ltd [2008] 4 SLR (R) 907
  • Alpine Bulk Transport Co Inc Ltd v Saudi Eagle Shipping Co. Inc [1986] 2 Lloyd's Rep 221

Full judgment

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

Kotokyo Wilber William v Kaggwa and Anor (H.C.Miscellaneous Application No. 278 of 2019) [2021] UGHCCD 26 (30 April 2021)
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.