Karungi v Kkingo Parents Transporters Co. Ltd (Miscellaneous Application 12 of 2025) [2025] UGHC 203 (16 April 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO. 12 OF 2025 (ARISING FROM CIVIL SUIT NO. 20 OF 2022)**

**KARUNGI ELIZABETH::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

## **VERSUS**

# **KKINGO PARENTS TRANSPORTERS CO. LTD:::::::::::::::::::RESPONDENT**

## **BEFORE: HON. JUSTICE LAWRENCE TWEYANZE**

## **RULING**

## **The Application**

- 1. This Application, instituted by the Applicant, Karungi Elizabeth, pursuant to Article 28 of the Constitution of the Republic of Uganda, Section 37 of the Judicature Act (Cap 16) (Revised Edition), Section 98 of the Civil Procedure Act (Cap 282), and Order 52 Rules 1 and 2 of the Civil Procedure Rules, seeks the following reliefs: An order to set aside the ex-parte proceedings conducted against the Applicant in High Court Civil Suit No. 20 of 2022; A stay of the delivery of the pending judgment in Civil Suit No. 20 of 2022; An order that Civil Suit No. 20 of 2022 be heard inter-parties and on its merits; An order for costs of the present Application. - 2. The grounds upon which this Application is based are detailed in the Applicant's affidavit, wherein she avers, inter alia, that Civil Suit No. 20 of 2022 was instituted by the Respondent, Kkingo Parents Transporters Co. Ltd, on 24th March 2022. The Applicant contends that she was not duly served with the summons in the said suit, thereby depriving her of the opportunity to participate in the proceedings, defend herself, and rebut the allegations and Witness Statements, including that of Mr. Asiimwe Robert, contained in the Plaint. - 3. The Respondent, through the affidavit of its Director, Mr. Asiimwe Robert, opposes the Application. The Respondent asserts that the Applicant was duly served with the summons and Plaint on 29th March 2022 by one Kaliisa

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Richard, in the presence of the deponent, but she declined to acknowledge receipt. The Respondent relies on an affidavit of service filed on 6th April 2022, accompanied by video evidence, to substantiate its claim. It further avers that during the formal proof hearing on 20th September 2022, the presiding Judge personally contacted the Applicant, who offered no explanation for her failure to file a defence or even attend Court. The Respondent submits that the Applicant's non-participation reflects a lack of interest and that this Application is a dilatory tactic intended to frustrate justice. Consequently, the Respondent urges the Court to dismiss the Application with costs.

4. In rejoinder, the Applicant reiterates the averments in her supporting affidavit, maintaining her position that she was not effectively served.

#### **Representation and Proceedings**

5. The Applicant was represented by M/s Prudens Law Advocates, while the Respondent was represented by M/s Bashasha & Co. Advocates. The matter was adjudicated through written submissions, with both Counsel filing comprehensive arguments. Having carefully reviewed the grounds of the Application, the affidavits in support and reply, the annexed evidence (including the video footage), and the submissions of Counsel, I now proceed to determine the matter.

#### **Issue for determination**

6. The sole issue for determination is whether the Application discloses sufficient grounds to warrant the setting aside of the ex-parte proceedings in Civil Suit No. 20 of 2022.

#### **Analysis and findings**

#### **Legal Framework**

7. The Court's inherent jurisdiction to ensure the administration of justice is well-established under *Section 37 of the Judicature Act (Cap 16) and Section 98 of the Civil Procedure Act (Cap 282).* Additionally, *Order 9 Rule 27 of the Civil Procedure Rules* empowers the Court to set aside an ex-parte judgment or decree where the Defendant demonstrates that the summons was not duly


served or that she was prevented by sufficient cause from appearing when the suit was called for hearing. The relevant provision of Order 9 Rule 27 states:

**"***Order 9 Rule 27 – Setting aside decree ex-parte against Defendant: 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*…" **(Underlined emphasis mine).**

- 8. The concept of "sufficient cause" has been the subject of extensive judicial interpretation. In *The Registered Trustees of the Archdiocese of Dar es Salaam vs The Chairman Bunju Village Government & Others* (cited in *Gideon Mosa Onchwati vs Kenya Oil Co. Ltd & Another* [2017] eKLR), it was observed that the term should be construed liberally to advance substantial justice, provided no negligence, inaction, or lack of bonafides is attributable to the applicant. Similarly, the Supreme Court of India in *Parimal vs Veena* defined "sufficient cause" as an adequate reason that accomplishes the intended purpose, viewed from the perspective of a reasonable person, without negligence or lack of diligence. - 9. A critical ground for setting aside an ex-parte judgment is non-service of summons, as affirmed by Mulenga JSC (as he then was) in *Geofrey Gatete & Anor vs William Kyobe* SCCA No. 7 of 2005. His Lordship emphasised that effective service requires the Defendant to be made aware of the suit to enable a response, with personal service being the surest method. However, procedural rules, such as those under Order 5 Rule 8 requiring delivery or tendering of a duplicate summons sealed by the Court and Order 5 Rule 14 allowing service to be deemed effective despite refusal to acknowledge, accommodate alternative modes of service.

## **Evidence on Service**

10. The Applicant asserts that she was not served with the summons, a claim central to her case for setting aside the ex-parte proceedings. Conversely, the Respondent relies on the affidavit of Kaliisa Richard, the Process Server,

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who deponed that on 29th March 2022, he, accompanied by Mr. Asiimwe Robert, tendered the summons and Plaint to the Applicant at the Law Development Centre canteen. The affidavit details that the Applicant, upon being identified by Mr. Asiimwe, refused to accept the documents, insisting on a dialogue regarding her alleged indebtedness rather than legal process. The Process Server annexed video footage, which this Court has reviewed, corroborating the attempted service and the Applicant's refusal.

11. Further, the record reveals that on 20th September 2022, during the formal proof hearing, the trial Judge took an un-conventional approach to make sure that justice is done by personally contacting the Applicant via telephone numbers 0772342896 and 0758009096. The Applicant acknowledged the call, citing her presence in class and promising to call back, but failed to do so. The matter was adjourned, yet the Applicant neither appeared nor communicated further. Satisfied with the affidavit of service and the video evidence, the Court entered an interlocutory judgment and proceeded with the ex-parte hearing for formal proof.

## **Evaluation**

- 12. The evidence unequivocally demonstrates that the Applicant was duly served with the summons and the Plaint on 29th March 2022. Her refusal to accept the documents does not negate the effectiveness of service under Order 5 Rule 14, which permits the Court to deem service valid upon refusal to acknowledge. The subsequent telephone contact by the Judge, coupled with the Applicant's failure to engage, reinforces the conclusion that she was aware of the proceedings yet chose not to participate. - 13. The Applicant has failed to adduce credible evidence or sufficient cause to justify her non-appearance. Her delay in filing this Application nearly three years after the suit's commencement in March 2022 further undermines her position, suggesting dilatory conduct rather than a genuine pursuit of justice. The principles of fairness and procedural justice, while paramount, do not extend to condoning inaction or belated attempts to reopen concluded proceedings without compelling justification.

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## **Decision**

- 14. Having meticulously considered the pleadings, evidence, and submissions, I find that the Applicant has not demonstrated sufficient cause to warrant the setting aside of the ex-parte proceedings in Civil Suit No. 20 of 2022. The summons was duly served, and the Applicant's non-participation was a matter of her own choice rather than circumstance. Accordingly, this Application lacks merit and is hereby dismissed with costs. - 15. Costs of this Application are awarded to the Respondent.

Orders:

- a. This Application is dismissed. - b. Costs awarded to the Respondent.

I so order.

Ruling delivered electronically by email at Masaka this 16 th day of April, 2025.


**LAWRENCE TWEYANZE JUDGE 16.04.2025**