Wakilii

Wagagai Mining (U) Limited v Freight Sendy Limited and Others (Misc. Application No. 1425 of 2025)

High Court · [2025] UGCOMMC 215 · 2025 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review and setting aside of judgment and decree in consolidated civil suits, and for setting aside of garnishee order nisi
Decision
Judgment and decree set aside; garnishee order nisi set aside; matter restored for hearing de novo

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the judgment and decree in consolidated civil suits No. 0895 of 2020 and No. 0006 of 2021 must be set aside where the applicant was neither served nor aware of the proceedings, counsel purportedly representing the applicant acted without instructions, and the individual who filed the written statement of defence falsely represented himself as the applicant's manager. The garnishee order nisi issued pursuant to that judgment was also set aside. The matter was restored to the cause list for hearing de novo to afford the applicant the constitutional right to a fair hearing.

Outcome

Judgment and decree set aside; garnishee order nisi set aside; matter restored for hearing de novo

Facts

In 2020, the applicant and the 5th respondent imported consignments of bitumen and steel via Mombasa destined for Uganda. They engaged the 6th respondent as clearing and forwarding agent, who subcontracted the 1st respondent as carrier. The 1st respondent transported the goods, made partial delivery, and retained the remainder by way of lien for unpaid freight charges. Disputes arose over the detention and outstanding charges. Civil Suits No. 895 of 2020 and No. 0006 of 2021 were instituted and consolidated, purportedly by the applicant through M/S Kampala Tax Advisory Center - Legal Department. The 1st and 2nd respondents filed defence and counterclaim. Judgment was entered for the 1st and 2nd respondents on 23 January 2024. On 12 June 2025, a garnishee order nisi was obtained against the applicant's Stanbic Bank accounts. The applicant discovered the proceedings only on 16 June 2025 when bank transactions failed. The applicant swore that it never instructed the counsel who appeared for it, and that the individual who filed the written statement of defence as the applicant's manager was neither an employee nor known to the applicant.

Issues

  1. Whether there are sufficient grounds to warrant the review and setting aside of the judgment and decree in consolidated suits No. 0895 of 2020 and No. 0006 of 2021 delivered on 23rd January 2024 against the Applicant?
  2. Whether a garnishee order nisi against Applicant in Misc. Application No. 1132 of 2025 can be set aside?

Orders

  • The Decree and the Judgement in Consolidated suits No. 0895 of 2020 and No. 0006 of 2021 delivered on the 23rd day of January, 2024 is hereby set aside.
  • The Garnishee Order Nisi in Miscellaneous Application No. 1132 of 2025 issued by this Court on 12th June 2025 for attachment of monies on the applicant's account to satisfy the judgement debt is set aside.
  • Consolidated suits No. 0895 of 2020 and No. 0006 of 2021 is hereby restored on the court's cause list to be heard de novo.
  • Parties are directed to file their pleadings as follows: the plaint within one week from this ruling; the written statement of defense and counterclaim within 10 days from the date of service of plaint; Reply to defense within 5 days from the date of service of the written statement of defense.
  • Plaintiff take out summons for directions within statutory period of 28 days from the date of filing of the reply to defense or any last pleading.
  • Each party bears its own costs of the application.

Rules and key headnotes

Review of Judgment — Grounds for Review — Lack of Instructions to Counsel
A suit brought by counsel without instructions from the client is incompetent in law and constitutes a nullity. Where it is established by sworn evidence that counsel who appeared for a party lacked proper instructions, this renders the pleadings legally incompetent and constitutes fresh evidence warranting review of the judgment.
Review of Judgment — New and Important Evidence — Misrepresentation of Party Status
Where a judgment is based on a written statement of defence filed by an individual who falsely represented himself as a manager of the party, and that individual was neither an employee nor affiliated to the party, this constitutes new and compelling evidence warranting review and setting aside of the judgment.
Right to Fair Hearing — Denial of Opportunity to be Heard
The right to a fair hearing under Articles 28 and 44 of the Constitution imposes a peremptory duty on every court to fairly hear both parties before making a decision. Where a party was neither notified of nor participated in proceedings, was not served with any court process, and the individual who filed pleadings on their behalf was unknown to them, the party has been denied the constitutional right to be heard and the judgment must be set aside.
Garnishee Orders — Setting Aside — Illegality in Underlying Judgment
A garnishee order nisi obtained pursuant to a judgment that is tainted by illegality must be set aside. Where the underlying judgment was based on proceedings in which the judgment debtor was neither notified nor served, and was represented by counsel without instructions, the garnishee order is founded on an invalid foundation and is incurably defective.
Review of Judgment — Locus Standi of Judgment Debtor
Under Section 82 of the Civil Procedure Act, any person aggrieved by a decree or order may apply for review. A judgment debtor who is directly impacted by a garnishee order nisi possesses the requisite locus standi to seek review and to have the order set aside.
Illegality — Doctrine of Curiae Neminem Gravabit
When a court discovers that an earlier judgment was passed based on an erroneous assumption of fact or law which did not exist, and the perpetuation of this error has resulted in a miscarriage of justice, the court must rectify such error to set the record straight under the doctrine curiae neminem gravabit (an act of the court shall prejudice no one).
Burden of Proof — Proving a Negative — Instructions to Counsel
Where an applicant contends that counsel acted without instructions, the burden of proof lies on the party making the positive assertion that counsel had instructions. However, the applicant should adduce supporting evidence such as disciplinary proceedings against the counsel or criminal proceedings against the individual who falsely represented the applicant to lend substantial weight to the claim.

Legislation cited (12)

Cases cited (9)

  • Kabale Housing Estate Tenants Association Ltd v Kabale Municipal Local Government Council (Supreme Court Civil Appeal No. 15 of 2013)
  • DFCU Bank v Supply Master Uganda Limited (Civil Appeal No. 1185 of 2021)
  • FX Mubuuke v UEB (High Court Misc. Application No. 98 of 2005)
  • Edison Kanyabwera v Pastori Tumwebaze (Supreme Court Civil Appeal No. 6 of 2004)
  • Oneti Vincent v Commissioner Land Registration and 60 Others (Misc. Cause No. 225 of 2021)
  • Kanda v Government of Malaya [1962] AC 322
  • Mohamed Allibhai v W.E. Bukenya Mukasa & Departed Asians Property Custodian Board (Supreme Court Civil Appeal No. 56 of 1996)
  • Administrator General v Kakooza & Another (Miscellaneous Application No. 11 of 2017)
  • Makula International Ltd v His Eminence Cardinal Emmanuel Nsubuga and Rev. Fr. Dr. Kyeyune (Court of Appeal Civil Appeal No. 4 of 1981)

Full judgment

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

Wagagai Mining (U) Limited v Freight Sendy Limited and Others (Misc. Application No. 1425 of 2025) [2025] UGCommC 215 (11 July 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.