Wakilii

Turyamureeba Wilbrod v Kamba Coffee Factory (Civil Appeal No. 0011 of 2019)

High Court · [2022] UGHC 265 · 2022 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court ruling dismissing application to set aside ex parte summary decree and grant leave to defend
Decision
Appeal dismissed; ex parte decree upheld; appellant's application to set aside decree and obtain leave to defend denied

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that service effected on the defendant's adult son residing with him constitutes effective service under Order 5 Rule 13 of the Civil Procedure Rules. An applicant seeking to set aside an ex parte judgment must show by evidence that service was not effected. An applicant seeking leave to defend in summary suit proceedings must demonstrate by affidavit or otherwise a bona fide triable issue of fact or law. Mere denial without supporting evidence is insufficient. Appeal dismissed.

Outcome

Appeal dismissed; ex parte decree upheld; appellant's application to set aside decree and obtain leave to defend denied

Facts

On 15 August 2014, Kamba Coffee Factory advanced UGX 2,000,000 to Mbeitsc Benon with the Appellant as guarantor. The loan was to be repaid by 30 September 2014. Both Mbeitsc Benon and the Appellant failed to repay. On 12 September 2017, the Respondent instituted Civil Suit No. 73 of 2017 by way of summary plaint against the Appellant and Mbeitsc Benon. Neither defendant applied for leave to defend. On 31 January 2018, a decree under Order 36 Rule 3(2) was entered in favour of the Respondent. Costs were taxed at UGX 481,100 and a warrant of arrest was issued on 27 April 2018. On 27 August 2019, the Appellant filed Misc. Application No. 10 of 2019 seeking to set aside the decree, arguing he was never served with summons. The trial Magistrate found that service had been effected on the Appellant's adult son and dismissed the application. The Appellant appealed.

Issues

  1. Whether the trial Magistrate erred in failing to set aside the ex parte decree in summary suit entered against the Appellant.
  2. Whether the trial Magistrate erred in failing to grant unconditional leave to the Appellant to appear and defend Civil Suit No. 73 of 2017.

Orders

  • Appeal dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Civil Procedure — Service of Process — Substituted Service on Adult Family Member
Where a defendant cannot be found, service may be effected on an adult member of the defendant's family residing with him under Order 5 Rule 13 of the Civil Procedure Rules, and such service is effective without the defendant's personal acknowledgment.
Civil Procedure — Setting Aside Ex Parte Judgments — Burden of Proof on Service
An applicant seeking to set aside an ex parte judgment on grounds of non-service must adduce evidence to prove that service was not effected; mere assertion in an affidavit without corroborating evidence is insufficient.
Civil Procedure — Summary Suits — Leave to Defend — Bona Fide Triable Issue
For leave to appear and defend in summary suit proceedings under Order 36 Rule 4 of the Civil Procedure Rules, an applicant must demonstrate by affidavit or otherwise a bona fide triable issue of fact or law; a bare denial without supporting evidence does not satisfy this threshold.

Legislation cited (7)

Cases cited (8)

  • Selle and Another v Associated Motor-Boat Ltd and Others (1968) EA 123
  • Magon v Ottoman Bank (1968) EA 136
  • Wamini v Kinimu (1969) EA 172
  • Kitumba v Karibwire (1981) UGHC 71
  • Korutaro v Mukairu (1975)
  • S Kyobe Senyange v Naks Limited (1980) UGHC 31
  • Masaka Farmers and Producers Limited v Aloysius Tamale (1992-1993) UGHC 203
  • Makula International Trade Agency v Bank of Uganda [1985] HCB 65

Full judgment

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

Turyamureeba Wilbrod v Kamba Coffee Factory (Civil Appeal No. 0011 of 2019) [2022] UGHC 265 (26 April 2022)
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.