JUDGMENT WITHOUT TRIAL

Summary Procedure, Ex Parte Judgments, Interlocutory Judgments and Default Judgments

• S.25 CPA
• S.41(2)(k) Judicature Act

SUMMARY PROCEDURE

Law Applicable

• Order 36 CPR

Cases

• Fielding & Plant Ltd v Selim Najjar [1967] 1 WLR 357

• Simon & Co v Parmer’s Stoves (1902) Ltd [1912] KB 259

• Zora v Ralli Brothers [1969] EA 690

• Budai Coffee Hulling Factory Ltd v Babumba [1963] EA 613

• Maluku Interglobal v Bank of Uganda [1985] HCB 65

• Sadolin Paints v Wali Muhamed [1972] EA 395

• Komiswa v Rwahulembe [1971] HCB 50

• Suteman v South British Insurance Co. Ltd [1965] EA 66

• Twentsche Overseas Trading Co. Ltd v Bombay Garage Ltd [1958] EA 741

• Camille v Meralli [1966] EA 411

• Brinks Ltd v Abu Saleh [1995] 4 All ER 65

• Home & Overseas Co. Ltd v Mentor Insurance Co. (UK) Ltd [1989] 3 All ER 74

• Runnacles v Mesquita [1887] 1 KB 416

• Lea Fils Dreyfus v Clarke [1958] 1 WLR 300

• British East Africa Coporation (1939) v Ladha (1938-39) 18 KLR 66

• Sheba Gold Minining Co.Ltd v Trunshawe [1892] 1 QB 674

• May v Childley [1894] 1 QB 451

 • Terrazo Pavioins v Standard Joinery & Building Co. [1967] EA 307

• Souza Figueiredo Co. Ltd v Moorings Hotel Co. Ltd [1959] EA 425

• Lonian Bank v Couvre [1968] 1WLR 781

A suit may be concluded before trial because it is an interlocutory judgment or an ex parte

judgment.

Summary procedure is one of the ways in which a suit may be concluded without trial or
proceedings. The plaintiff may institute a summary suit and serve the pleadings on the
defendant and the defendant cannot defend unless he or she has sought the court’s
permission so to do (Order 36 rule 3 CPR). The plaintiff will in essence be saying that it is a
simple matter for which the defendant need not defend. The burden is then put on the
defendant to show that he or she has a good defence.

The plaintiff need not call witnesses to support his or her claim. Where the defendant does
not come to defend, then the plaintiff is entitled to a summary judgment or where he or
she applies to court and is not granted leave to defend, then a summary judgment may be
entered. (Order 36 rules 3(2) and 5 CPR).

According to Order 36 rule 1, the order shall apply to the High Court and to all magistrates
courts. This scrutinised however means that the order applies to chief magistrates and
magistrates Grade 1 courts since it is only those magistrates courts that apply the CPR. The
rules applicable to Grade II magistrates are found in the Magistrates Courts Act.

In Nakabango Cooperative Society v Livingstone Kyenga (1992) III KALR 137 , Bahigeine, J
(as he then was) held that the Civil Procedure Rules which provide for summary procedure
are inapplicable to courts presided over by Magistrates Grade II and III because the rules
applicable in these courts are set out in the third schedule of the MCA. These rules
providing for civil procedure in the MCA do not provide for summary procedure.

Order 36 rule 2 provides that:

“All suits—
(a) where the plaintiff seeks only to recover a debt or liquidated demand in
money payable by the defendant, with or without interest, arising—
(i) upon a contract, expressed or implied (as, for instance, on a bill of exchange,
hundi, promissory note or cheque, or other simple contract debt);
(ii) on a bond or contract written for payment of a liquidated amount of money;
(iii) on a guaranty where the claim against the principal is in respect of a debt or
liquidated amount only;
(iv) on a trust; or
(v) upon a debt to the Government for income tax; or
 (b) being actions for the recovery of land, with or without a claim for rent or
mesne profits, by a landlord against a tenant whose term has expired or has been
duly determined by notice to quit, or has become liable to forfeiture for
nonpayment of rent, or against persons claiming under the tenant,
may, at the option of the plaintiff, be instituted by presenting a plaint in the form
prescribed endorsed “Summary Procedure Order XXXVI” and accompanied by an
affidavit made by the plaintiff, or by any other person who can swear positively to the
facts, verifying the cause of action, and the amount claimed, if any, and stating that in his
or her belief there is no defence to the suit.

In Maluku Interglobal v Bank of Uganda (1985) HCB 65, the court held that Order 33 (now
36) rule 2 of the CPR clearly envisages actions for recovery of land, rent or mesne profits
where the relationship of landlord and tenant exists or had existed as the right of each of
the parties would be clearly spelt out depending on the nature of the tenancy. There would
therefore be no dispute to the title of the landlord on the amount of rent payable. In the
circumstances summary procedure would provide an ideal quick remedy to the landlord
to recover possession of property or rent due. In the present case, the defendant had not
been granted any tenancy by the plaintiff who found him already in occupation of the
premises under a tenancy granted by a previous owner. The plaintiff allowed the applicant
to continue staying on the land thus making it a tenancy at sufferance which arises by
operation of law.

Court added that in the absence of any prior agreement on rent and the lack of any
subsequent details to explain how the amount of rent was arrived at rendered the amount
of rent due and owing a triable issue entitling the applicant to leave to defend the suit.

In Busingye & Co. Ltd v Mayimuna Muye Amin (HCMA 87of 2011- Kampala), Justice Percy
Night Tuhaise observed inter alia that:

“The prayer in the plaint is for recovery of land by giving vacant possession. There is
no claim as to rent. Summary procedure under Order 36 rule 2 of the CPR clearly
envisages actions for recovery of land, rent or mesne profits. The wording of the rule
is clear. The action can be “ for recovery of land, with or without a claim for rent or
mesne profits”. This infers that a claim for recovery of land can stand on its own under
summary procedure..”

Order 36 rule 3 (1) provides that upon the filing of an endorsed plaint and an affidavit as is
provided in rule 2 of this Order, the court shall cause to be served upon the defendant a
summons in Form 4 of Appendix A of these Rules, or in such other form as may be
prescribed, and the defendant shall not appear and defend the suit except upon applying
for and obtaining leave from the court. Sub rule 2 is to the effect that In default of the
application by the defendant or by any of the defendants (if more than one) within the
period fixed by the summons served upon him or her, the plaintiff shall be entitled to a
decree for an amount not exceeding the sum claimed in the plaint, together with interest,
if any, or for the recovery of the land (with or without mesne profits), as the case may be,
and costs against the defendant or such of the defendants as have failed to apply for leave
to appear and defend the suit.

In Republic Motors v Atlantic Decorators (1982) HCB 104, Manyindo, J (as he then was)
held that if a defendant wishes to appear and defend the suit, he must obtain leave of the
court and he must do so within ten days of receiving the summons in a summary suit and
time is of the essence. The application in this case, which was made three days outside the
prescribed time of ten days was therefore time barred.

An application for leave to appear and defend takes the form of a notice of motion and
must be supported by an affidavit which must state whether the defence goes to the
whole or part of the plaintiff’s claim and if so, which part (Order 36 rule 4).

The defendant is obliged to inform court of what his defence is and if he admits part, then
judgment will be entered summarily for that part and the court will determine whether to
allow him or her defend for the remainder or not.

On leave to appear and defend, in Maluku Interglobal v Bank of Uganda, he court said that
before leave to appear and defend is granted, the defendant must show by affidavit or
otherwise that there is a bona fide triable issue of fact or law. When there is a reasonable
ground of defence to the claim, the plaintiff is not entitled to summary judgment. The
defendant is not bound to show a good defence on the merits but should satisfy the court
that there was an issue or question in dispute which ought to be tried and the court should
not enter upon the trial of the issues disclosed at this point.

In the Board of Governors of Nebbi Town S.S.S. v Jaker Food Stores Ltd, (HCMA 62 of 2016-
Arua), Justice Stephen Mubiru held that:

“Under Order 36 rule 4 of the Civil Procedure Rules, unconditional leave to appear and
defend the suit will be granted where the applicant shows that he or she has a good
defence on the merits; or that a difficult point of law is involved; or that there is a dispute
which ought to be tries, or a real dispute as to the amount claimed which requires taking
an account to determine or any other circumstances showing reasonable grounds of a
bona fide defence, such as where;-

1. The applicant demonstrates to the court that there are issues or questions of fact
or law in dispute which ought to be tried.
2. The applicant shows a state of facts which leads to the inference that at the trial
of the action he may be able to establish a defence to the plaintiff’s claim, in which
case he ought not to be debarred of all power to defeat the demand upon him.
3. Where court is in doubt whether the proposed defence is being made in good
faith, the court may order the defendant to deposit money in court before leave
is granted.
 4. Whenever there is a genuine defence either to fact or law the defendant is entitled
to leave to appear and defend.
5. The defendant may in answer to the plaintiff’s claim rely upon a setoff or
counterclaim.”
In UCB v Mukoome Agencies (1982) HCB 21 (CA), it was observed per incuriam that when
applying for leave to appear and defend a suit, it would serve a good purpose if the
intended written statement of defence is annexed to the notice of motion in order to avoid
the unnecessary costs which would of necessity be incurred on appeal. That it would also
help the judge to make up his mind whether to refuse or grant the applicant leave to
appear and defend in the suit.

Order 36 rule 5 provides that:

“Where, after hearing an application by a defendant for leave to appear and defend
the suit, the court refuses to grant such leave, the plaintiff shall be entitled as against
the defendant to a decree such as is described in rule 3 of this Order.”

So where an application is made and the court refuses then there and then the court enters
judgment in favour of the plaintiff.

Having given a decree, the very court may set aside the decree. Order 36 rule 11 provides
that:
“After the decree the court may, if satisfied that the service of the summons was
not effective, or for any other good cause, which shall be recorded, set aside the
decree, and if necessary stay or set aside execution, and may give leave to the
defendant to appear to the summons and to defend the suit, if it seems reasonable
to the court so to do, and on such terms as the court thinks fit.”

In Caltex Oil v Kyobe (1988-90) HCB 141, the court found that it was endowed with wide
discretionary powers to set aside the decree obtained under order 33(now 36) rule 3.
However the applicant had to satisfy court either that there was no effective service or he
had to show any other good cause. Sufficient cause had to relate to the failure by the
applicant to take the right steps at the right time. There was no hard and first rule as to
what constituted any other cause. Each case had to be considered on its own peculiar
circumstances.

Applications to set aside are brought by way of notice of motion supported by affidavit
(order 36 rule 4 and order 52 rule 1)

In Caltex Oil v Kyobe, the court added that as to whether the defendant/applicant should
be granted leave to defend part of the indebtedness, the test to be applied was whether
he had disclosed such fats as might be deemed sufficient to entitle him to defend. The
defence which the defendant/applicant was putting forward in this case was that his
indebtedness to the plaintiff was not in the amount claimed in the plaint; this was not
contested. The defendant/applicant was therefore entitled to defend part of the plaintiff’s
claim which he was disputing.
EXPARTE, INTERLOCUTORY AND DEFAULT JUDGMENTS

It is also possible for a judgment to be entered without trial in the following circumstances:

(a) Under Order 9 rule 6 of the CPR, where the plaint is drawn claiming a liquidated
demand and the defendant fails to file a defence, the court may, subject to rule 5 of this
Order, pass judgment for any sum not exceeding the sum claimed in the plaint together
with interest at the rate specified, if any, or if no rate is specified, at the rate of 8 percent
per year to the date of judgment and costs. Rule 5 requires a plaintiff who is desirous of
proceeding in default of the defendant’s filing of a defence to file upon the record an
affidavit of service of summons and failure of the defendant to file a defence.

(b) Under Order 9 rule 7 of the CPR Where the plaint is drawn claiming a liquidated
demand and there are several defendants of whom one or more files a defence on or
before the day fixed in the summons, and another or others of them fail to file a defence,
the court may, subject to rule 5 of this Order, pass judgment as in rule 6 of this Order
against such as have not filed a defence, and execution may issue upon such judgment and
decree without prejudice to the plaintiff’s right to proceed with the action against such as
have filed a defence.

A liquidated demand is a sum certain in money (See Uganda Baati vs. Patrick Kalema High
Court, Commercial Division, Civil Suit Number 126 of 2010 and adopting the definition
in Stroud’s Judicial Dictionary that: “liquidated demand” inter alia means and includes, the
amount on a bill of exchange, definite interest on a contract or under a statute, a sum certain in
money, a statutory demand for the payment of a total debt and an amount due on a judgment).
The definition is consistent with that for a claim under summary procedure under Order 36 rule 2
of the Civil Procedure Rules. On the other hand, “pecuniary damages” are defined by Halsbury’s
Laws of England 4th Edition Volume 12 (1) Paragraph 809 to mean any financial disadvantage
past or future, whether precisely calculable or not. “Past loss of earnings and an assessment of
loss of earnings, loss due to damage to a chattel, loss on breach of a contract for the sale of goods,
and loss of profits constitute pecuniary damage”. Non pecuniary damage refers to claims for “pain,
suffering, damage to reputation and interference with the enjoyment of property”. (See also:
Transtel Ltd & Anor v Mahi Computers & Appliances Ltd & Anor (Civil Suit-2015/397) [2017] -
Commercial court)

(c) Under Order 9 rule 8 of the CPR, where the plaint is drawn with a claim for
pecuniary damages only or for detention of goods with or without a claim for pecuniary
damages, and the defendant fails or all defendants, if more than one, fail to file a defence
on or before the day fixed in the summons, the plaintiff may, subject to rule 5 of this Order,
enter an interlocutory judgment against the defendant or defendants and set down the
suit for assessment by the court of the value of the goods and damages or the damages
only, as the case may be, in respect of the amount found to be due in the course of the
assessment.
(d) Under Order 9 rule 9 of the CPR, Where the plaint is drawn as is mentioned in rule
8 of this Order and there are several defendants of whom one or more files a defence,
and another or others fail to file a defence, on or before the day fixed in the summons,
the court, subject to rule 5 of this Order, may assess the value of the goods and the
damages or either of them, as the case may be, as against the defendant or defendants
who have not filed a defence at the same time as the trial of the suit against the other
defendant or defendants and may proceed to pass judgment in accordance with the
assessment.
In Haji Asuman Mutekanga vs. Equator Growers (U) Ltd SCCA No. 07/1995 , it was held
that “where an interlocutory judgment has been entered in favour of the Plaintiff, the question of
liability of the Defendant is no longer in issue. What is in issue is the assessment of the quantum
of damages”.

In the case of Olweny and Ors v Oyoo and Ors (Civil Appeal-2018/32) [2020] UGHC 169

Justice Stephen Mubiru held that:

“An interlocutory judgment therefore is entered against a defendant where the plaint is
drawn with a claim for pecuniary damages only or for detention of goods with or without
a claim for pecuniary damages, where the defendant fails to appear, whereupon the
suit is set down for assessment by the court of the damages or the value of the goods
and damages as the case maybe be. In such cases, there will be an assessment of
damages at a hearing fixed, where the amount of money, interest, and legal costs
payable to the plaintiff will be determined by the Court.”

In Jogo v The Registered Trustees of the Church of The Province of Uganda (Civil Appeal-
2017/) [2018] UGHCCD 2 (09 January 2018), Justice Mubiru stated that:

“Interlocutory judgments in their very nature do not put an end to the litigation since they
do not specifically grant or deny any of the reliefs sought. An interlocutory or default
judgment is not based on any evidence or admission but rather the defendant's failure to
file a defence within the prescribed time. Pleadings contain averments and until they
were proved or disproved, or are admitted by the adversary, they are not evidence and
no final decision can be founded upon them. In the result, an interlocutory judgment does
not dispose of all of the issues between the parties and does not terminate the litigation.
Interlocutory judgments are not final until the court decides other matters in the case or
until the court can decide on whether the interlocutory judgment is backed by evidence.
An interlocutory or default judgment is based on a mere rebuttable presumption that the
suit is meritous and the defendant has no defence to it. It does not absolve the plaintiff of
the burden of proving his or her case. The burden is always on the plaintiff to prove his or
her case on the balance of probabilities even if the case is heard on formal proof
(see Kirugi and another v. Kabiya and three others [1987] KLR 347). Therefore, when
the court sets down a suit for formal proof, the plaintiff is under a duty to place before the
court evidence to sustain the averments in his or her plaint.

An interlocutory judgment not being a determination on the merits, does not adjudicate
with finality on any issue in a suit. Generally, a trial court has the inherent power to review,
revise, reconsider and modify its interlocutory decisions at any time prior to the entry of
final judgment. Therefore the decision in Mutekanga v. Equator Growers (u) Limited, [1995-
98] 2 E.A 219that was cited by counsel for the appellant did not postulate a rule of general
application but one applicable to the facts of that case. In that case, not only had an
interlocutory judgment been entered but also the question of liability had been admitted. It
was thus considered that the interlocutory judgment had settled the question of liability for
breach of contract which issue could not be re-opened during the formal proof of the
question of damages.

Consequently, the grant of an interlocutory judgment will result in a final judgment only if the
evidence adduced during the "formal proof" hearing resolves all issues arising in the suit.
Where at the conclusion of the evidential hearing it becomes apparent to the court that
either the interlocutory judgment was entered upon a palpably incorrect or irrational basis,
or it is obvious that the litigant has failed to adduce probative or competent evidence such
that the presumption of liability on basis of which the interlocutory judgment was entered
has effectively been rebutted, the interlocutory judgment may be annulled, voided or vacated.
Insufficient evidence usually results in dismissal of the suit since no party may obtain a
favourable final judgment on basis of evidence that does not satisfy the requirements of
the standard of proof.

Although an interlocutory judgment may result into a preliminary decree, there is however
a distinction between an interlocutory judgment and a preliminary decree in the strict
sense. When a court deals with aspects of the substantive subject-matter conclusively,
while the suit is not completely disposed off, since other issues are left to be dealt with, the
result is a preliminary decree and not an interlocutory judgment. There is nothing in The
Civil Procedure Code which prohibits the passing of more than one preliminary decree if
circumstances justify the same. While a final decree deals with fact finding, preliminary
decrees deal with the determination of substantive rights. In light of the provisions
of section 2 (c) of The Civil Procedure Act, a preliminary decree, though not determining all of
the rights of the parties still conclusively determines that range of rights in controversy it
respect of which it is made. In that limited sense, a preliminary decree is final, so far as the
rights are concerned and for that reason it is a decree in itself which is liable to appeal.”

(e) Under Order 50 rule 2 of the CPR it is provided that in uncontested cases and
cases in which the parties consent to judgment being entered in agreed terms, judgment
may be entered by the registrar.
See: Cardenas v Cardenas (HCT-04-CV-MA 112 of 2017); Muhammed Buwule Kasasa v NWSC (HCMA 2
OF 2016 -execution and Bailiffs Div); Annet Namirimu v Susan Bamanyisa and 2 Others (HC
Miscellaneous Application 894 of 2018); National Resistance Movement v Kampala Modernity Printers
Ltd (Miscellaneous Appeal 6 of 2016)

SETTING ASIDE EXPARTE JUDGMENTS

Under Order 9 rule 12, it is provided that:

“Where judgment has been passed pursuant to any of the preceding rules of this Order,
or where judgment has been entered by the registrar in cases under Order L of these Rules,
the court may set aside or vary the judgment upon such terms as may be just.”
This rule requires:
 1. That there is a judgment, passed under any of the preceding rules. The preceding
rules under which a judgment may be passed are rules 6, 7, 8 and 9. All these are
judgments that are passed in default of filing a defence.
2. A judgment be passed under order 50 (specifically under rule 2). These are
judgments passed by the registrar.

This rule was also considered in the case of National Resistance Movement v Kampala Modernity
Printers Ltd (HC Miscellaneous Appeal 6 of 2016).

Order 9 rule 27 provides that:

“In any case in which a decree is passed ex parte against a defendant, he or she may apply
to the court by which the decree was passed for an order to set it aside; and if he or she
satisfies the court that the summons was not duly served, or that he or she was prevented
by any sufficient cause from appearing when the suit was called on for hearing, the court
shall make an order setting aside the decree as against him or her upon such terms as to
costs, payment into court, or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit; except that where the decree is of such a nature that it cannot
be set aside as against such defendant only, it may be set aside as against all or any of the
other defendants also.”

This rule requires that:

1. an ex parte decree should have been passed against the defendant.

2. summons must have not been duly served, or the non-appearance when the suit
was called for hearing was due to sufficient cause.
This was considered in the case of Ntambara v Segawole (HC Miscellaneous Application 1082 of
2019- Comm. Court).

Under Order 36 rule 11, it is provided that:

“After the decree the court may, if satisfied that the service of the summons was not
effective, or for any other good cause, which shall be recorded, set aside the decree,
and if necessary stay or set aside execution, and may give leave to the defendant to
appear to the summons and to defend the suit, if it seems reasonable to the court so
to do, and on such terms as the court thinks fit.”
This rule requires that:
1. the suit be filed under order 36.
2. a decree must have been passed
3. service of summons may not have been effective or there must be some other good
cause.
The court is empowered to set aside the decree, stay or set aside the execution, or it may
grant leave to the defendant to defend the suit if it seems reasonable to do so and on such
terms as the court thinks fit.

What is sufficient cause?

In Zirondomu v Kyamulabi [1975] HCB 337, by consent of both parties to the suit, a hearing
date was filed as the 1st April 1975 but a clerk in chambers of counsel for the defendant
applicant erroneously entered in counsel’s diary the date of 1 st May 1975 and dispatched a
letter for information of the applicant to the same effect in consequence whereof both
counsel and applicant (defendant) failed to turn up when the case was heard and an ex
parte judgment was thereafter entered against the defendant/applicant.
The issue was whether failure to turn up due to confusion was sufficient cause for setting
aside the ex parte judgment.

It was held that:

1. A mistake or oversight on the part of a legal adviser though negligent is sufficient
cause for setting aside an ex parte judgment/decree.
2. In the instant case the defendant failed to turn up on the hearing date owing to
negligent entry of a wrong date by a clerk in his counsel’s chambers and such failure
was for sufficient cause.
3. Moreover the defendant had much interest and reason to defend the suit inasmuch
as the subject matter was land the property the property thereon valued at shs.
40,000/= and the applicant being a simple peasant her interest in the dispute ought
not to be underrated.
And so the application was allowed.

In Kawooya v Naava [1975] HCB 314, the appellant appealed against the decision of a chief
magistrate dismissing his application made under order 9 rule 24 of the CPR to set aside
an ex parte decree passed against him. The applicant deposed that he did not appear
at the hearing due to a sudden change in the venue for hearing of the case. The case had
originally been heard by a Grade II magistrate but later when adjourned was heard by a
Chief magistrate in another court. This mix-up caused the appellant and the advocate he
had briefed to appear for him to go to a wrong court. The applicant’s advocate deposed
that he was prevented to attend due to his sudden arrest the previous day by officers of
the Public Safety Unit. The Chief magistrate dismissed these grounds as showing no
sufficient cause for non-attendance, holding that the appellant had not exercised due
diligence to find out the appropriate court for the hearing of the case. He also held that
the application was incompetent as it cited Order 9 rule 9 of the CPR instead of order 9
rule 24 and further that it was supported by a defective affidavit which included hearsay
information. The appellant/defendant appealed to the high court which allowed the
appeal holding that:
 1. Under order 9 rule 24, the court shall set aside an ex parte decree entered against
the defendant on being satisfied that the defendant was prevented by sufficient
cause from appearing when the suit was called for hearing.
2. Since under Order 3 rule 1 any person may appear in person or by his advocate,
where the party is represented by an advocate, appearance for the purposes of
Order 9 rule 24 means appearance by the defendant’s advocate.
3. Where sufficient cause for non-appearance is shown, the ex parte decree entered
against the defendant shall be set aside under Order 9 rule 24.
4. That on the evidence in the instant case, the appellant and his advocate had shown
sufficient cause within order 9 rule 24 for their non appearance at the resumed
hearing and the ex parte decree would be set aside.
5. That the citing of a wrong rule in the notice of motion and the inclusion of hearsay
information in the affidavit supporting it were mere technicalities which were not
fatal to the application as they did not occasion any failure of justice to the other
party.

Mbogo v Shah [1960] EA 93

This was an appeal against a refusal to set aside a judgment. The Court of Appeal noted
that the court has a wide discretion to set aside judgments under order 9 rule 9 and that
an appellate court would not interfere in the exercise of this discretion unless it was
satisfied that the decision was wrong because the court misdirected itself or because it
acted on matters which it should not have acted on or because it failed to take into
consideration matters which it should have and in so doing arrived at a wrong conclusion.

In this case, the trial judge refused to set aside the judgment because he felt that the
defendant had deliberately sought to obstruct or delay the course of justice. On the facts,
after counsel had refused to accept service, service was effected by advertisement. No
appearance was entered and no defence was filed. Judgment was entered and the
defendant sought to set it aside.

At the trial, Harris, J, laid down the test for the exercise of the discretion. He said that the
discretion is intended so to be exercised to avoid injustice or hardship arising from mistake
or accident, inadvertent or inexcusable mistake or error but it is not designed to assist a
person who has deliberately sought whether by evasion, to delay or obstruct the course
of justice.

The case of Roussos v Virani Civil Appeal No. 9 of 1993 highlights the distinction between
Order 9 rule 9 (now rule 12) and Order 9 rule 24 (now rule 27). The facts were that a suit
was filed for an order directing the registrar to cancel the names of the defendant form
the proprietorship of Plot 30 Windsor Crescent. Summons could not be served in the
ordinary way so they were advertised in the press. The defendants did not appear or file a
defence and the suit was allowed to proceed ex parte. Judgment was eventually entered
against the defendants. When the defendants returned to Uganda, they applied to set
aside the judgment. This application was brought under Order 9 rule 9. A preliminary
objection was raised that the application was being brought under the wrong rule and that
the proper rule should have been Order 9 rule 24. The respondents maintained that the
proper rule was order 9 rule 9 because the hearing had taken place under order 9 rule 8A.

The trial judge dismissed the objection holding that the principles involved under either
rule were the same. The Supreme Court held that the proper rule for setting aside was
Order 9 rule 24.

The Court cited the case of Kimani v McConnel & Another (1965) EA 547(K) on the test of the
application of Order 9 rule 9 as follows:

“whether in light of all the circumstances both prior and subsequent and on the respective
merits of the parties it will be just and reasonable to set aside or vary the judgment”.

The court also cited Waweru v Ndiga (K) saying that rule 9 applied if judgment was passed
under the preceding rules and rule 24 applied if summons were not duly served or if the
defendant was prevented by sufficient cause from appearing when the suit was called for
hearing. They gave examples to include:

i. a mistake by an advocate (Shabil din v Ram Parkash)

ii. ignorance by an unrepresented defendant
iii. illness by a party (Patel v Star Mineral Water)

In Ladak Abdalla Mohamed Hussein v Griffiths Isingoma Kakiza civil Appeal No. 8 of 1995, it
was decided that a third party can apply to set aside a judgment under Order 9 rule 9.

In Ijjala v Energo Project [1988] HCB 157, the court was dealing with an application under
rule 24. The High Court said that the court needed to satisfy itself that there was a defence
on the merits before judgment is set aside.

See also: Mita v Ladha [1960] EA 1054

In Merag v Gandhi & Co [1957] EA 466 (K), the appellant as landlord filed two suits against
his tenants claiming possession and other relief. In July 14 th 1956, both cases were set
down for hearing on October 15 th. Shortly before October 15 th, the appellant’s advocate
who since September had been engaged in a lengthy criminal case before a magistrate,
realised that completion of this case would clash with the hearing of the appellant’s two
actions and he persuaded the magistrate not to sit on October 15 th and 16th. When the
Supreme Court adjourned on October 16 th, the first of the appellant’s two cases had been
concluded and the advocate applied that the other case (in which the respondents were
concerned) be adjourned generally. The respondent’s advocate did not oppose but the
trial judge refused the application on the grounds that the advocate should have briefed
someone else to hold his brief in either the criminal or the civil case and because an
adjournment would disrupt the cause list. On October 17th, in the absence of his advocate,
who was again before the magistrate, the appellant attended the Supreme Court and
when the trial judge again refused an adjournment he declined to go on with the case
adding that “I elect not to appear”. The respondent’s advocate then applied to the judge
to dismiss the suit under Order 9 rule 19 and the judge so ordered but no formal order or
decree was ever extracted. Thereafter, the appellant unsuccessfully applied under order 9
rule 20 to set aside the dismissal and reinstate the suit. On appeal, much of the argument
was concerned with the question whether the appellant had “appeared” in the suit since
Order 9 rule 19 applies only in the event of non-appearance of the plaintiff. It was held

• the appellant had both in fact and law “appeared” and therefore no order could be
made under order 9 rule 20; the dismissal of the suit though in itself regular, could
not have been effected under the terms of Order 9 rule 19, since the condition
precedent to its application, namely non-appearance of the plaintiff, was not
satisfied.
• The only operative order was that the suit was dismissed with costs, and the suit
fell to be dismissed because the appellant did not prove his case.
The appeal was therefore dismissed.