Wakilii

Mukabalanga v Mbaraga (Miscellaneous Application No. 2051 of 2021)

High Court · [2022] UGHCLD 157 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte judgment arising from Civil Suit No. 003 of 2016
Decision
Application to set aside ex parte judgment dismissed; ex parte judgment in Civil Suit No. 003 of 2016 stands

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application to set aside the ex parte judgment. The 1st applicant was duly served through her counsel under Order 9 rule 2 of the Civil Procedure Rules. Her failure to attend the hearing resulted from misunderstandings with her counsel, not from lack of service. Where a client rejects professional advice or fails to agree with counsel on a course of action, the proper remedy is to withdraw instructions, follow up the case, or engage new counsel — not to sit back and later claim non-service. Misunderstandings between counsel and client do not constitute sufficient cause under Order 9 rule 27 CPR to set aside an ex parte judgment.

Outcome

Application to set aside ex parte judgment dismissed; ex parte judgment in Civil Suit No. 003 of 2016 stands

Facts

The applicants sought to set aside an ex parte judgment delivered on 16 June 2021 in Civil Suit No. 003 of 2016. The 1st applicant claimed she was never served with court process and did not participate in the hearing. She alleged that misunderstandings with her counsel led him to stop informing her of court proceedings. The 2nd and 3rd applicants (defendants in the main suit) claimed they had been directed to locate the 1st applicant for service but that judgment was passed before they could report back. The respondent contended that all parties were duly served, that the matter had gone through mediation (which the 1st applicant frustrated by non-attendance), and that on the scheduled hearing date neither the 1st applicant nor her counsel appeared despite prior adjournments. The 2nd and 3rd defendants were represented throughout and attended the hearing and locus visit. The 1st applicant admitted she remained in touch with her counsel but that he stopped informing her of proceedings after their disagreement.

Issues

  1. Whether the ex parte judgment delivered on 16 June 2021 in Civil Suit No. 003 of 2016 should be set aside on the ground that the 1st applicant was not duly served with court process.
  2. Whether the 1st applicant was prevented by sufficient cause from attending the hearing of the main suit.
  3. Whether misunderstandings between the 1st applicant and her counsel constitute sufficient cause to set aside an ex parte judgment.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Service of Process — Service Through Counsel — Deemed Effective Service
Under Order 9 rule 2 of the Civil Procedure Rules, service of court process through an advocate as an authorized agent is deemed to be effective service on the client.
Civil Procedure — Setting Aside Ex Parte Judgment — Sufficient Cause — Misunderstandings with Counsel
Misunderstandings between a client and counsel, or a client's refusal to accept professional advice, do not constitute sufficient cause under Order 9 rule 27 of the Civil Procedure Rules to set aside an ex parte judgment where the client remained in contact with counsel and was duly served through counsel.
Civil Procedure — Client Responsibility — Disagreement with Counsel — Proper Remedies
Where a litigant rejects professional advice from counsel or fails to agree on a course of action, the proper remedy is to withdraw instructions, follow up the case personally, or engage new counsel — not to remain passive and later claim non-service or lack of notice.
Civil Procedure — Setting Aside Ex Parte Judgment — Sufficient Cause — Test
Sufficient cause to set aside an ex parte judgment under Order 9 rule 27 CPR must relate to inability or failure to take a particular step in time, and the facts and circumstances of each case must afford sufficient ground to enable the court to exercise discretion judiciously.

Legislation cited (2)

Cases cited (2)

  • Rosette Kizito v Administrator General and Others (Supreme Court Civil Appeal No. 9 of 1994)
  • Bishop Kiginto Kibuuka v Uganda Catholic Lawyers Society and Another (Miscellaneous Application No. 696 of 2010)

Full judgment

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

Mukabalanga_v_Mbaraga_(Miscellaneous_Application_No._2051_of_2021)_[2022]_UGHCLD_157_(8_August_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.