Wakilii

Mukuye v MK Creditors Ltd (HC Miscellaneous Application No. 594 of 2015)

High Court · [2017] UGCOMMC 106 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for unconditional leave to appear and defend a summary suit brought under Order 36 of the Civil Procedure Rules
Decision
Applicant granted unconditional leave to appear and defend

Observed later treatment

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Holding

Held that where an applicant seeking leave to defend a summary suit demonstrates even one triable issue, unconditional leave must be granted. The court found triable issues regarding the unliquidated nature of the claim (fluctuating daily interest on a loan alleged to have been repaid) and potential double jeopardy arising from simultaneous proceedings. Technical objections to the affidavit were overruled under Article 126 of the Constitution. Application allowed.

Outcome

Applicant granted unconditional leave to appear and defend

Facts

The respondent brought a summary suit under Order 36 of the Civil Procedure Rules seeking recovery of UGX 71,010,000 arising from breach of contract. The claim arose from a loan of UGX 1 million with daily accruing interest. The applicant filed a motion for leave to appear and defend, arguing he had repaid the loan with interest of UGX 500,000 and that the respondent had previously filed an Originating Summons concerning the same matter which had been determined in his favour, with an appeal pending. The respondent raised preliminary objections to the affidavit in support, claiming it was defective for lack of a date and non-compliance with procedural requirements.

Issues

  1. Whether the affidavit in support of the application was defective for lack of a date.
  2. Whether there was non-compliance with Order 6 rule 2 of the Civil Procedure Rules.
  3. Whether the applicant demonstrated triable issues warranting leave to appear and defend the summary suit.

Orders

  • The applicant is hereby granted unconditional leave to appear and defend the suit.
  • The applicant shall file his defence within 10 days from date of reading this ruling to the parties.
  • Costs of this application shall abide the results of the suit.

Rules and key headnotes

Civil Procedure — Summary Procedure — Leave to Defend — Standard for Granting Leave
In an application for leave to appear and defend a suit brought under summary procedure, if even one triable issue is shown on the face of the affidavit in support, the applicant is entitled to unconditional leave to appear and defend.
Civil Procedure — Summary Procedure — Triable Issue — Definition
A triable issue is an issue which raises a prima facie defence and which ought to go to trial for adjudication. The court is not required at the leave stage to engage in trial of the issues raised or to decide whether the defence will be successful.
Civil Procedure — Affidavits — Defects — Application of Article 126
Where an affidavit supporting an application is not dated but the deponent is illiterate and the place of commissioning is stated, the adverse effects of non-compliance with the Commissioners for Oaths Act ought not to be placed on the deponent. Courts should apply Article 126 of the Constitution to administer justice without undue regard to technicalities.
Contract Law — Debt Claims — Unliquidated Demands — Suitability for Summary Procedure
A claim based on daily accruing interest that keeps changing by the day and is stated as an amount 'as of' a particular date raises a triable issue as to whether the demand is sufficiently liquidated to be brought under summary procedure.

Legislation cited (8)

Cases cited (8)

  • Balikudembe Jumba Peter & 2 others v Jjagwe Mbuga & another (HC Miscellaneous Application No. 976 of 2012)
  • Job Connect (U) Ltd v DFCU Bank Ltd (HC Miscellaneous Application No. 627 of 2014)
  • Minister of Internal Affairs v Kaggwa Andrew & others (HC Miscellaneous Application No. 0660 of 2002)
  • Bhaker Kotech v Adam Muhammad (Court of Appeal Civil Application No. 48 of 2001)
  • Patel v Cargo Handling Services [1974] EA 75
  • Sulaiman Nsambu v Fred Balinda (HC Miscellaneous Application No. 289 of 1998)
  • HD Hasmani v Banque Du Congo Belge (1938) 5 EACA 89
  • Makula International v His Eminence Emmanuel Cardinal Nsubuga & Another [1982] HCB 11

Full judgment

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

Mukuye v MK Creditors Ltd (HC Miscellaneous Application No. 594 of 2015) [2017] UGCommC 106 (24 September 2017)
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.