Wakilii

Mujulizi v Kyeyune (Miscellaneous Cause No. 2158 of 2021)

High Court · [2022] UGHCLD 103 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex-parte judgment in Civil Suit No. 549 of 2016
Decision
Application dismissed; ex-parte judgment stands

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that an affidavit in reply filed and served nine months out of time without leave of court is irregular and a nullity. On the merits, the applicant failed to prove sufficient cause for non-appearance, as he provided no medical evidence of illness, no proof of advanced age, and his own documents contained signature discrepancies. The application was dismissed with costs to the respondent.

Outcome

Application dismissed; ex-parte judgment stands

Facts

The applicant sought to set aside an ex-parte judgment in Civil Suit No. 549 of 2016, claiming he only became aware of the proceedings when the decree was extracted. The applicant alleged old age and non-service of court process as grounds. The respondent filed an affidavit in reply dated 23 March 2022, nine months after being served on 22 December 2021. The applicant's counsel raised a preliminary objection to the late filing. On the merits, the court noted that the applicant had filed a defence in 2014 through Kanduho & Co. Advocates but neither counsel nor applicant attended subsequent court sittings. The applicant alleged sickness and advanced age but provided no medical records or other supporting evidence. Signature discrepancies appeared in the applicant's own attached documents.

Issues

  1. Whether the respondent's affidavit in reply was properly filed and served within the statutory timelines.
  2. Whether the applicant proved sufficient cause to set aside the ex-parte judgment under Order 9 rule 27 of the Civil Procedure Rules.

Orders

  • The affidavit in reply struck off for being irregularly served and out of time.
  • Application to set aside ex-parte judgment dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Service of Process — Late Filing — Statutory Timelines
Filing and serving an affidavit in reply outside the statutory period without leave of court is irregular and renders the service a nullity; such an affidavit must be struck off.
Civil Procedure — Setting Aside Ex-Parte Judgment — Sufficient Cause — Burden of Proof
Under Order 9 rule 27 of the Civil Procedure Rules, an applicant seeking to set aside an ex-parte judgment bears the heavy burden of proving by evidence that he was prevented by sufficient cause from appearing when the suit came up for hearing; mere allegations without supporting evidence will not suffice.
Civil Procedure — Setting Aside Ex-Parte Judgment — Insufficient Evidence
Where an applicant alleges sickness and advanced age as sufficient cause for non-appearance but produces no medical records, no documentary proof of age, and his own documents contain signature discrepancies, he has failed to discharge the burden of proving sufficient cause.

Legislation cited (1)

  • Civil Procedure Rules O.9 r.27

Cases cited (6)

  • Patrick Senyondwa & Another v Lucy Nakitto (Miscellaneous Application No. 1103 of 2018)
  • Stop & See & 5 Others v Tropical Bank Ltd (HCMA No. 333 of 2010)
  • Nakibira Agnes & 5 Others v Kalemera Edward & Another (HCMA No. 403 of 2018)
  • Rosette Kizito v Administrator General (SCCA No. 9 of 1986)
  • Musa S. Betty & Another v Akello Joan (HCCS No. 173 of 2013)
  • Nicholas Virani & Another (CA No. 9 of 1992)

Full judgment

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

Mujulizi_v_Kyeyune_(Miscellaneous_Cause_No._2158_of_2021)_[2022]_UGHCLD_103_(27_April_2022)
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.