Wakilii

Ssembatya v Walugembe (Miscellaneous Application 2038 of 2024)

High Court · [2025] UGCOMMC 33 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default/interlocutory judgment in underlying civil suit
Decision
Application to set aside default judgment dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Court dismissed application to set aside default judgment on service grounds. Applicant claimed non-service but admitted knowing of suit through summons delivered to his office and instructing lawyers to file defence. Court held service was effective both through agent at applicant's place of business and via WhatsApp on the phone number applicant provided in the underlying agreement. Electronic service via WhatsApp recognised as valid under Practice Directions. Admission of knowledge of suit defeated non-service ground.

Outcome

Application to set aside default judgment dismissed

Facts

Applicant sought to set aside default judgment in Civil Suit No. 0713 of 2024, claiming he was never properly served with court process. He alleged the affidavit of service was erroneous because it stated service was made through a person called Sabrina (unknown to him) at his place of business, and that WhatsApp service was ineffective as the number used did not belong to him. Applicant stated he first learned of the suit around 31 July 2024 when he returned to his office and found an envelope delivered to him from the respondent. Upon opening it, he discovered he had been sued and immediately engaged lawyers to file a defence. Respondent contended applicant was properly served both through Sabrina (applicant's receptionist at his place of business in Makerere-Kavule) and electronically via WhatsApp on the same number applicant had provided in the agreement underlying the dispute (0700848600). Applicant's lawyers later withdrew instructions.

Issues

  1. Whether there are sufficient grounds to warrant the setting aside of the default/interlocutory judgment entered by this Honorable Court in Civil Suit No. 0713 of 2024?

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Service of Process — Effective Service — Admission of Knowledge
Where an applicant admits in his affidavit that he learned of a suit through summons delivered to his office and immediately instructed lawyers to file a defence, such admission defeats a ground of non-service because the summons achieved the desired effect of making the defendant aware of the suit and providing opportunity to respond.
Service of Process — Service on Agent at Place of Business
Under Order 5 Rule 10 of the Civil Procedure Rules, service may be made on the defendant's agent at the defendant's place of business where the agent is empowered to accept service or where personal service is not practicable, and such service is sufficient if it brings about the intended result of making the defendant aware of the suit.
Service of Process — Electronic Service via WhatsApp — Validity
Rule 7(2)(c) of the Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Directions, Legal Notice No. 6 of 2019, permits parties to use technology including instant messaging applications for service of documents. Electronic service via WhatsApp messenger application on a party's known phone number constitutes effective service.
Admissions — Statements Suggesting Inference as to Fact in Issue
Under Section 16 of the Evidence Act, an admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact. A party's statement in an affidavit that he learned of a suit and instructed lawyers to respond constitutes an admission that service was effective.
Setting Aside Default Judgment — Burden of Proof on Service
Where an addressee denies receipt of court summons, the onus is on the sender or server to prove that the summons was indeed delivered. Proof may be established by showing that service was made at the recipient's known contact details provided by the recipient himself in prior dealings with the sender.
Setting Aside Default Judgment — Order 9 Rules 12 and 27 — Distinction
Order 9 Rule 12 is broader than Order 9 Rule 27 and permits setting aside judgment in light of all facts and circumstances if just and reasonable. Order 9 Rule 27 applies specifically where an ex parte decree was passed and permits setting aside on grounds of non-service of summons or sufficient cause preventing appearance. Where a party cites both rules, it is not fatal provided the court has jurisdiction and the procedure accommodates the application.

Legislation cited (10)

Cases cited (13)

  • National Resistance Movement v Kampala Modernity and Printers Ltd (HCMA No. 6 of 2016)
  • Nicolas Rousos v Gulam Hussein Virani and Another (SCCA No. 9 of 1993)
  • Mbogo v Shah (1968) EA 93
  • Patel v E.A Cargo Handling Services (1974) EA 76
  • Saggu v Road Master Cycles (U) Ltd (2022) 1 EA 258
  • Geoffrey Gatete and Angela Maria Nakigonya v William Kyobe (SCCA No. 7 of 2005)
  • Abela and others v Baadarani [2013] UKSC 44
  • Gray v Hurley [2019] EWHC 1636 (QB)
  • Male H. Mabirizi v Attorney General (HC Misc. Application No. 918 of 2021)
  • Musumba Isaac Isanga v Quid Financials Ltd (HC Misc. Application No. 139 of 2020)
  • Nyanzi Fred Sentamu v The Electoral Commission and 2 others (CA Misc. Application No. 10 of 2021)
  • Peace Barigye v Rosemary Kizza Omamteker (HC Misc. Application No. 2075 of 2022)
  • National Enterprises Corporation v Mukisa Foods Limited (CACA No. 42 of 1997)

Full judgment

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

Ssembatya v Walugembe (Miscellaneous Application 2038 of 2024) [2025] UGCommC 33 (28 March 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.