Wakilii

Namusisi Madina t/a Kibuli Islamic Nursery & Primary School v Bogezi Sula and Others (Miscellaneous Application 149 of 2025)

High Court · [2025] UGHCFD 128 · 2025 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. 282 of 2022
Decision
Application to set aside judgment dismissed; applicant must appeal if dissatisfied

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that where a defendant initially participates in proceedings but fails to defend when given the opportunity after the plaintiff closes their case, the matter proceeds under Order 17 Rule 4 CPR, not Order 9 Rule 27. Order 9 Rule 27 applies only where the defendant never participated from the onset and the matter was heard ex parte. Once a matter is concluded under Order 17 Rule 4, the only available remedy is an appeal, not an application to set aside. The application was dismissed with costs.

Outcome

Application to set aside judgment dismissed; applicant must appeal if dissatisfied

Facts

The applicant operated a school on property forming part of the estate of the late Sirimani Katabalwa. The respondents, as administrators of the estate, filed Civil Suit No. 283 of 2022 seeking declarations that the applicant was a trespasser. The applicant appeared on 24 April 2023 when the respondents' witnesses testified and the plaintiffs' case was closed. The applicant claims she was involved in an accident on 21 May 2023 resulting in a dislocated pelvis hip joint, rendering her unable to walk and requiring treatment for close to a year. The matter was fixed for defence hearing on 8 November 2023. The hearing notice was served on the applicant's lawyers but neither the applicant nor her lawyers attended. The Court proceeded in her absence and delivered judgment for the respondents on 13 November 2024. The applicant only learned of the judgment in December 2024 when the respondents' lawyers demanded she vacate the property. The applicant then filed this application to set aside the judgment, claiming she was prevented by sufficient cause from appearing. The respondents contended the applicant had already vacated the property and demolished the school structures.

Issues

  1. Whether the judgment, declarations and orders of the Court in Civil Suit No. 283 of 2022 should be set aside and the suit heard inter partes.
  2. Whether the application under Order 9 Rule 27 CPR was the proper remedy or whether the applicant should have appealed under Order 17 Rule 4 CPR.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Judgments — Distinction Between Order 9 Rule 27 and Order 17 Rule 4 CPR
Order 9 Rule 27 of the Civil Procedure Rules applies only where the defendant never participated in the proceedings from the onset and the matter was heard ex parte. Order 17 Rule 4 applies when the defendant initially participated in the proceedings but, after the plaintiff closes their case and the defendant is granted the opportunity to defend, the defendant does not take that opportunity.
Civil Procedure — Order 17 Rule 4 — Remedy Against Judgment — Appeal Not Application to Set Aside
Where a matter proceeds under Order 17 Rule 4 of the Civil Procedure Rules because a party fails to produce evidence or perform any act necessary for the further progress of the suit after time has been granted, the only available remedy to challenge the resulting judgment is an appeal, not an application to set aside the judgment.
Civil Procedure — Duty of Counsel — Communication with Court
Where a party is indisposed and unable to attend court, their lawyers have a duty to relay that information to the court. Failure to do so does not constitute sufficient cause for setting aside a judgment.

Legislation cited (4)

Cases cited (2)

  • R.K Transporters Limited v Mulani Moosa (Miscellaneous Application No. 1175 of 2023)
  • Saggu v Roadmaster Cycles (U) Limited (2002) E.A 258

Full judgment

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

Namusisi Madina t_a Kibuli Islamic Nursery & Primary School v Bogezi Sula and Others (Miscellaneous Application 149 of 2025) [2025] UGHCFD 128 (3 October 2025)
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.