Wakilii

Namalwa v Musendwa (Civil Miscellaneous Application No. 415 of 2021)

High Court · [2021] UGHCLD 141 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte judgment and decree arising from Civil Suit No. 570 of 2012
Decision
Application to set aside exparte judgment dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an application to set aside exparte judgment fails where the applicant was duly served with hearing notices on multiple occasions, was represented by counsel who appeared in court, but showed dilatory conduct and lack of honest intention to attend court. Service is effective when made in accordance with Order 5 of the Civil Procedure Rules, including service on an adult member of the defendant's family or on counsel as agent. Application dismissed.

Outcome

Application to set aside exparte judgment dismissed

Facts

The respondent filed Civil Suit No. 570 of 2012 against the applicant. The applicant filed a defence through Kiyemba & Matovu Advocates in January 2013. Over the course of 2014 and 2015, the applicant repeatedly failed to attend scheduled hearings despite being served with hearing notices. Kintu Nteza Advocates filed a notice of change of advocates in September 2014. Court granted the applicant multiple chances to defend but she or her counsel failed to appear. Service was effected at the applicant's residence in the presence of the area General Secretary, and counsel Kintu Nteza acknowledged service. The matter proceeded exparte in October 2015 and judgment was delivered on 19 August 2020. The applicant filed this application in June 2021 to set aside the exparte judgment, claiming she was never served and did not instruct Kintu Nteza Advocates.

Issues

  1. Whether there were sufficient grounds for setting aside the exparte judgment in Civil Suit No. 570 of 2012.
  2. Whether the applicant was prevented by sufficient cause from attending court hearings.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Setting Aside Exparte Judgment — Sufficient Cause — Burden of Proof
Under Order 9 rule 27 of the Civil Procedure Rules, an exparte decree may be set aside upon proof that the defendant was prevented by sufficient cause from appearing when the suit was called for hearing. Sufficient cause must relate to the failure to take necessary steps required by law and the applicant must demonstrate an honest intention of attending court.
Civil Procedure — Service of Process — Hearing Notices — Requirements
The procedure governing service of summons under Order 5 of the Civil Procedure Rules also governs service of hearing notices. Service is effective when made in accordance with Order 5, including service on an adult member of the defendant's family under Order 5 rule 13 or on counsel as agent under Order 3.
Civil Procedure — Service of Process — Affidavit of Service — Evidentiary Value
Where affidavits of service are filed by process servers and not challenged, they constitute proof of effective service. Facts pleaded in an affidavit that are not challenged are taken as the truth.
Civil Procedure — Setting Aside Exparte Judgment — Dilatory Conduct
A litigant's right to a hearing is vitiated if the litigant is guilty of dilatory conduct in the instruction of their lawyer or in prosecuting their defence. Where a party shows no honest intention to attend court and fails to take steps to prosecute their case over several years, an application to set aside exparte judgment will fail.
Civil Procedure — Legal Representation — Agency — Notice of Change of Advocates
Where counsel files a notice of change of advocates and acknowledges service on behalf of a party, that counsel is recognised as agent of the party within the meaning of Order 3 of the Civil Procedure Rules. Service upon such counsel is effective service upon the party unless the recognition is challenged through proper legal steps.

Legislation cited (6)

Cases cited (7)

  • UTC v Katongole & Anor (1975) HCB 336
  • Nzioki S/o Mutwata v Akamba Handcraft Industries Ltd (1954) 27 KER
  • Edison Kanyabware v Pastori Tumwebaze (Supreme Court Criminal Appeal No. 6 of 2004)
  • Mumello v Bank of Tanzania (Civil Appeal No. 12 of 2002) [2006] TZCA 12
  • Tanganyika Packers Replacement Company Limited Vs Jumanne D. Masangwa and Amos A. Mwalwanda Civil Application No.6 of 2001 (unreported)
  • Winnie Ddungu T/A Ddungu Winnie Traders v Stanbic Bank (U) Ltd (Miscellaneous Application No. 902 of 2013)
  • National Insurance Corporation v Mugenyi & Co Advocates (1987) HCB 28

Full judgment

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

Namalwa_v_Musendwa_(Civil_Miscellaneous_Application_No._415_of_2021)_[2021]_UGHCLD_141_(30_September_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.