Wakilii

Mulondo v Kirenga (Miscellaneous Application No. 741 of 2015)

High Court · [2017] UGCOMMC 16 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default judgment and stay execution arising from Civil Suit 458 of 2013
Decision
Default judgment set aside on condition of deposit; matter to proceed to hearing on merits with defence to be filed

Observed later treatment

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Holding

A default judgment obtained for a sum agreed to be reduced by subsequent memorandum of understanding should be set aside where the applicant demonstrates sufficient cause including counsel negligence and shows a triable defence. The court exercised its discretion to set aside the exparte judgment on condition that the applicant deposits the undisputed amount in court as security.

Outcome

Default judgment set aside on condition of deposit; matter to proceed to hearing on merits with defence to be filed

Facts

The Respondent filed Civil Suit 458 of 2013 claiming Shs. 101,800,000/- from the Applicant. On 25 September 2013, the parties entered into a memorandum of understanding reducing the debt to Shs. 90,000,000/- with a scheduled payment plan. The Applicant was granted leave to defend the suit but failed to file a defence within the prescribed time. Default judgment was entered against him for the original sum of Shs. 101,800,000/-. Execution was granted and the Applicant was committed to civil prison on 2 March 2015. The Applicant claimed he had paid Shs. 67,000,000/- pursuant to the memorandum, leaving a balance of Shs. 23,000,000/-. The Respondent disputed this, acknowledging only Shs. 25,000,000/- received and claiming Shs. 65,000,000/- remained owing. The Respondent's lawyers were unaware of the memorandum of understanding when filing suit.

Issues

  1. Whether the default judgment and attendant decree should be set aside and execution stayed.

Orders

  • Application allowed on condition that the Applicant deposits Shs. 23,000,000/- in court as security for payment of the debt within two weeks from the date of this ruling.
  • Default judgment set aside.
  • Execution stayed.
  • Applicant to file a defence within fifteen days from this ruling.
  • Costs to abide the outcome of the main suit.

Rules and key headnotes

Civil Procedure — Setting Aside Default Judgment — Sufficient Cause — Counsel Negligence
An error on the part of counsel in the form of a mistaken belief or negligence should not be visited upon the applicant and constitutes sufficient cause for setting aside a default judgment where the applicant demonstrates merit.
Civil Procedure — Default Judgment — Court's Power to Revoke — No Adjudication on Merits
Unless a court has pronounced judgment upon the merits or by consent, it has power to revoke the expression of its coercive power where judgment has only been obtained by failure to follow any of the rules of procedure.
Civil Procedure — Setting Aside Exparte Judgment — Terms — Deposit of Undisputed Amount
Where the court exercises its discretion to set aside an exparte judgment, it may impose terms such as requiring the applicant to deposit the undisputed portion of the debt in court as security for payment.
Contract Law — Memorandum of Understanding — Effect on Original Claim
Where parties enter into a memorandum of understanding reducing a liquidated debt after the original claim arose, it is unfair for a claimant to subsequently sue for the original higher sum without informing their lawyers of the reduction, and such circumstances support setting aside a default judgment entered for the unreduced amount.

Legislation cited (6)

  • Civil Procedure Rules O.9 r.12
  • Civil Procedure Rules O.36 r.11
  • Civil Procedure Rules O.52 rr.1, 2, 3
  • Civil Procedure Rules O.9 r.6
  • Civil Procedure Rules O.25 r.6
  • Civil Procedure Act s.98

Cases cited (6)

  • Mugisha Florence v Babirye and Another (High Court Civil Suit No. 20 of 2014)
  • Bunjo Jonathan v KCB Bank (U) Ltd (High Court Miscellaneous Application No. 324 of 2013)
  • Uganda Telecom Ltd v Airtel (U) Ltd (High Court Miscellaneous Application No. 452 of 2010)
  • National Enterprises Corporation v Mukisa Foods Ltd (Court of Appeal Civil Appeal No. 42 of 1997)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Evans v Barton [1937] AC 473

Full judgment

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Mulondo v Kirenga (Miscellaneous Application No. 741 of 2015) [2017] UGCommC 16 (21 February 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.