Mutebi v Kitalemire (Miscellaneous Application 608 of 2025) [2025] UGCommC 74 (17 April 2025)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT DIVISION) MISCELLANEOUS APPLICATION NO. 608 OF 2025 (ARISING FROM CIVIL SUIT NO. 0467 OF 2023)**

### **MUTEBI BRIAN aka "MUTTS" :::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**KITALEMIRE JIMIL ::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

## 15 **Before: Hon. Lady Justice Dr. Ginamia Melody Ngwatu**

#### **RULING**

This is a ruling on an application that was brought by notice of motion under section 98 of the Civil Procedure Act cap 282; and Order 9 Rule 27, Order 36 Rule 11, and Order 22 of the Civil 20 Procedure Rules S. I. 7l-1. The application seeks orders that: the applicant be granted unconditional leave to appear and defend *Civil Suit No. 0467/2023 Kitalemire Jimil versus Mutebi Brian aka "MUTTS"*; a stay of execution of the decree or order until this application is heard and determined; the applicant be released from civil prison pending the hearing and determination of the application; the default judgment entered against the applicant be set aside;

25 and costs of the application be in the cause.

The brief background to this application is that the applicant filed *Civil Suit No. 0467/2023* to recover a total sum of USD 23,000 being money that the respondent herein had lent to the applicant. Upon the applicant's failure to file his application before this court for leave to appear 30 and defend the suit, the respondent applied for and was granted a default judgment; which he then executed by way of arrest and detention of the applicant in civil prison, hence this application.

The grounds of the application were stated in the affidavit of the applicant, Mutebi Brian aka 35 "Mutts", and are briefly that:

- 5 1. The applicant was not served with the initial summons or any other court process in the main suit. - 2. The applicant was only served with a Notice to Show Cause Why Execution Should Not Issue, indicating the imminent execution of the decree or order. - 3. The applicant has a *bona fide* defense to the claims raised in the main suit and should be 10 afforded the opportunity to present this defense. - 4. Execution of the decree or order should be stayed pending the hearing of the application as the applicant has been deprived of a fair opportunity to respond to the claim. - 5. The applicant is currently being unlawfully detained in civil prison due to the default judgment entered against him. The detention is unjust and constitutes a violation of his 15 constitutional right to a fair hearing. - 6. The applicant seeks unconditional leave to appear and defend the suit on the grounds that he was not properly served and has triable issues to raise, including a defense to the claim. - 7. The applicant intends to raise points of law, including that the plaint discloses no cause of 20 action, that the Respondent is not a registered money lender, and that the suit is brought in bad faith. - 8. It is just and equitable that the applicant be released from civil prison and allowed to defend the suit on its merits. - 25 The respondent opposed the application on the grounds contained in the affidavit in reply of Kitalemire Jimil, wherein he stated that: - 1. the summons arising out of the said suit were dully served on the applicant as evidenced by the affidavit of service attached thereto as annexture 4. - 2. the applicant's affidavit is dented with falsehoods and is incurably defective. - 30 3. the applicant just opted not to apply for leave to appear and defend the suit. - 4. sometime in October 2024, the applicant was served with a notice to show cause why execution should not issue in respect of the decree that is now in issue. - 5. upon appearance in court on the 5th day of November 2024, the applicant who did not physically attend court informed court through his advocate that he had paid the decretal 35 sum but had no proof. - 6. at no point did the applicant inform court that he was never served with the summons in the suit.

- 5 7. even with all those proceedings being brought to his attention, the applicant opted not to apply for leave to appear and defend the suit until March 2025 when he was lawfully arrested and detained in execution of the decree. - 8. the applicant's application was brought in delay and is just an abuse of court process and intended to deny the respondent enjoyment of the fruits of his litigation. - 10 9. even after filing the application, the applicant has not attached any evidence to prove that he paid the decretal sum to the respondent even after acknowledging receipt of the claimed sum from the respondent. - 10. the applicant failed to prove by evidence that he has since paid the sums being claimed. - 11. the applicant's application does not satisfy the grounds for stay of execution. - 15 12. the applicant has absolutely no defense to the main suit.

## **Representation at the hearing**

The applicant was represented by Mr. Musoke Anthony of Kisasa Kiwanuka & Co. Advocates; while the respondent was represented by Mr. Baluku Herbert Bagheni of Bagyenda & Co. 20 Advocates. The parties were granted leave to file written submissions which are on the Court record.

## **Issue for determination**

The issues raised in this application for determination in this matter are:

- 25 1. Whether the service of summons upon the applicant was proper in law? - 2. Whether the default judgment ought to be set aside? - 3. Whether the applicant should be granted unconditional leave to defend the suit? - 4. Whether the applicant is entitled to immediate release from civil prison pending the hearing and determination of this application?

## 30

# **RESOLUTION**

Having considered application and the submissions of both parties as well as the relevant legal authorities cited, the issues for determination are resolved as follows:

# 35 **1. Whether the service of summons upon the applicant was proper in law?**

It was submitted by Counsel for the applicant that the applicant, Mr. Mutebi Brian, was not effectively served with summons as required under Order 5 Rule 10 of the Civil Procedure Rules. Counsel for the applicant relied on the Supreme Court case of *Edison Kanyabwera v Pastori Tumwebaze [2005] 2 EA 86* where it was held that service of summons is a fundamental

- 5 step in litigation and that court lacks jurisdiction to make any orders affecting the person who has not been served. Counsel for the applicant, therefore, argued that there was no attempt made at personal service in the instant case; and there was no court order on record, authorising substituted service. - 10 Counsel for the applicant further submitted that the alleged service upon an unnamed third party at the applicant's workplace falls short of the legal standard. In support of this submission and relying on the authority of *Makula International Ltd v His Eminence Cardinal Nsubuga & Anor [1982] HCB 11*, Counsel for the applicant argued that an illegality once brought to the attention of the court, cannot be sanctioned; and reiterated that the affidavit of service was riddled with 15 material deficiencies: - Counsel for the respondent replied to Counsel for the applicant's submission and pointed out that the applicant does not deny that he operates a business called Link Communications, next to Centenary Bank, Namirembe Road branch; or that a one Kikonyogo Ronald works for the 20 applicant. He also pointed out that there is no affidavit from the said Kikonyogo Ronald denying ever having been permitted to receive the said summons and plaint on the applicant's behalf. Counsel for the respondent also submitted that the applicant did not make use of the opportunity to question the handwriting of the said Kikonyogo; nor did he dispute the said call that was made to the applicant. Counsel for the respondent further submitted that the applicant did not confirm 25 whether telephone contact 0775 09866 as appended on the summons and plaint attached to the affidavit of service as an annexture, was called, if he is not a worker/agent of the applicant.

Counsel for the respondent, while opposing the application relied on section 103 of the Evidence Act and the case of *Samwiri Massa Vs Rose Achen (1978) HCB 297* to argue that any averment 30 in an affidavit that is not controverted is deemed to have been accepted. Counsel for the respondent further argued that the burden shifted to the applicant to prove that to the contrary, that the authority to receive summons by Kikonyogo Ronald, whom he has not denied to be his worker, was received by him and that he had been permitted to receive the said summons. Counsel for the respondent also submitted that the particulars of the third party that was served

- 35 are inscribed on the served summons as *"Kikonyogo Ronald on behalf of Mutebi Brian…."* and that the agent's contact is 0775509866 with his signature and date of receiving the summons as 16th June 2023. Counsel implored the court to read the affidavit of service with the annexture as a whole and not in piecemeal as the applicant was trying to invite court to do. - 40 In rejoinder, Counsel for the applicant relied on various cases to emphasise that it is necessary for the affidavit to contain full and specific details of how and when service was effected. (see *Shaban Kiwanda v E. T. Nechama Ltd. HCCS No. 634 of 2024; Simon Nyakiti v Uganda National*

5 *Roads Authority Civil Appeal No. 3 of 2010 and National Insurance Corporation v Tumwesigye Civil Appeal No. 34 of 1999*)

## **Determination**

The law on service of summons in accordance with Order 5 of the Civil Procedure Rules is that 10 in as far as practicable, service of summons shall be personal. Where personal service is not possible, an agent or an adult member of the family or the company place of business or via email or other available means of communication between the parties, may be employed by the serving party. The purpose of service is to ensure the defendant is aware of the pending claim, allowing them to respond. See *Nakiberu Rose Daphine Edith Margaret Kalemera Musoke –* 15 *Kibuuka Miscellaneous Application No. 82 OF 2021*, at page 2.

In the instant, as indicated in the affidavit of service sworn by Baluku Bagheni Herbert of M/s Bagyenda & Co. Advocates, summons and a summary plaint were taken out on 6th June 2023 for service upon the defendant, the applicant herein. (see affidavit of service dated 23rd June 2023). Baluku categorically states that on 16th 20 June 2023, he proceeded to Mr. Mutebi's (the applicant) shop at Link Communications next to Centenary Bank Branch, Namirembe road where he found a one Kikonyogo Ronald to whom he introduced himself. Baluku further states that Mr. Mutebi was contacted by Kikonyogo on phone and he gave permission to Kikonyogo to receive the court process on his behalf; upon which Kikonyogo received the same by appending his name and 25 signature on the summons in suit on summary plaint and the summary plaint. A copy of the received court process was attached to the affidavit of service as proof of service.

Service of court process on a co-worker would ordinarily not be considered as effective service unless if the intended recipient authorized his/her co-worker to accept service. In the instant case, 30 service of summons was effective considering that the Kikonyogo Ronald only received the said court process upon being authorized by the applicant on phone. Much as the Counsel for the applicant submitted that no particulars of the third party served with the court process was indicated in the affidavit of service, this is not true as Baluku, the process server, clearly identified Kikonyogo Ronald as the applicant's co-worker who was served by him, as authorised 35 by the applicant.

I am inclined to find that there was effective service of court process. The absence of effective service of court process in *Civil Suit No. 0467/2023* on the applicant as a ground for this application, therefore, fails.

# 5 **2. Whether the default judgment ought to be set aside?**

became aware of the suit upon committal to civil prison.

Counsel for the applicant submitted that in light of the irregularity of service, the default judgment entered without proper service of summons was a nullity. He relied on the case of *Sebuliba v Cooperative Bank Ltd [1982] HCB 130*, where the same principle was stated. He further relied on the case of *Kamunyana v Kayiwa HCCA No. 6 of 2012*, in which the High Court 10 reiterated that default judgments obtained irregularly must be set aside *ex debito justitiae* (as of right). Counsel for the applicant further relied on the case of *Banco Arabe Espanol v. Bank of Uganda [1999] 2 EA 22* to argue that courts should not penalise a party for a default arising from defective service. Counsel for the applicant maintained that the applicant has a bona fide defence to the suit, which warrants trial on the merits; and that the default judgment in *Civil Suit No.* 15 *0467/2023* was entered without proper service upon the applicant and should, therefore, be set aside to allow the applicant an opportunity to defend himself, especially given that he first

- Counsel for the respondent submitted that the summons in *Civil Suit No. 0467/2023* were duly 20 served on the applicant to enable him apply for leave to appear and defend the suit in issue. Counsel for the respondent further stated that the applicant presented a litany of ledgers and unverified documents and he did not point out any single piece of evidence to prove that he had paid off the debt owed to the respondent. Counsel submitted that the authority of *Patel versus EA Cargo Handling Services Ltd [1975] EA 75* that was cited by the applicant does not apply in his 25 favour as no fraud or intention to over reach had been raised and proved by the applicant. Counsel for the respondent, while relying on the case of *Immaging the Worlds Africa Ltd vs Juliet Nagawa Luggya HCMA No. 111 of 2023* argued that in the absence of any proof of illegality and proof of refund of the money owed, the default judgment should stand as it is. - 30 In rejoinder, counsel for the applicant submitted that in light of the defective service demonstrated, the default judgment entered against the applicant is a nullity and must be set aside *ex debito justitiae*. He further submitted that the applicant demonstrated triable issues which justify setting aside the default judgment to allow the matter to be heard on its merits. That without proper service, the applicant was denied the opportunity to be heard, thereby breaching - 35 the principles of natural justice and the right to a fair hearing under Article 28 of the Constitution.

## **Determination**

The law regarding setting aside of a decree is provided for under Order 36 rule 11 of the Civil 40 Procedure Rules. This provision lays down the procedure for setting aside a decree and empowers court to do so if:

5 *"…it is 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."*

Order 9 rule 27 of the Civil Procedure Rules, permits a defendant against whom an ex parte 10 decree was passed to apply to court to have the decree set aside, if they so wished. Under this same rule, however, the applicant is required to satisfy court that they were prevented by sufficient cause from appearing when the suit was called for hearing. This court is, therefore, empowered by the foregoing provisions, if convinced that the applicant was prevented by sufficient cause from appearing, to set aside the default judgment.

In *Departed Asians Property Custodian Board versus Issa Bukenya Supreme Court Civil Appeal No. 18 of 1991* the Supreme Court held that an application to set aside an ex parte judgment cannot succeed if no good or substantial reasons are given to justify setting it aside. It is, therefore, incumbent on the applicant to demonstrate that sufficient cause exists. For sufficient 20 cause to be raised as a ground for setting aside the default judgment, there should be no negligence or inaction imputed on the part of the applicant/defendant of the suit. Further in the case of *Banco Arabe Espanol versus Bank of Uganda* SCCA No. 8 of 1998, it was held that where a party's failure to take a step in litigation was caused by his or her indolence or

inadvertence, the court will not be equally as forgiving.

In the instant matter, the applicant did not take the necessary and required step of applying for leave to appear and defend *Civil Suit No. 0467/2023* as mandatorily required under Order 36 rule 3 and 4 of the Civil Procedure Rules. In defence of the applicant, counsel for the applicant argued that there was no effective service of court process. Having found that service of court 30 process on the applicant was effective, this ground fails considering that the applicant was aware of the proceedings against him, having been effectively served with the summons in summary suit on plaint and summary plaint in regard to the need for him to apply for leave to appear and defend *Civil Suit No. 0467/2023*.

35 The summons in summary suit on plaint clearly stipulates that the applicant was required to apply for leave of court to appear and defend the suit; failure of which, the plaintiff would be entitled to obtain a decree for the amount of the right claimed in the plaint as well as interest and costs of the suit. The ten days for the applicant to apply for leave to appear and defend *Civil Suit No. 0467/2023* started running from 16th June 2023, when Kikonyogo Ronald received court 40 process on his behalf; but the applicant never ever filed the same.

The applicant relied on Article 28 of the Constitution of the Republic of Uganda to assert that his right to a fair hearing was not observed. The right to a fair hearing guarantees that individuals are 5 treated fairly and given a chance to present their case, defend their rights, and be heard before any decision is made about them.

This right to a fair hearing was available to the applicant during the consideration of *Civil Suit NO. 0467/2023*. The applicant would have enjoyed this right to a fair hearing had he filed his 10 application for leave to appear and defend *Civil Suit No. 0467/2023* as required under Order 36 of the Civil Procedure Rules. It should be noted that the default judgment that was entered against the applicant was entered on 28th August 2024, slightly over a year from the date when *Civil Suit 0467/2023* was filed in this court. This shows inadvertence on the part of the applicant since he had sufficient time to either file his application for leave to appear and defend the suit; 15 and upon lapse of the ten-day stipulated period, he had the option of applying for extension of time to file his application. Neither of these options was explored by the applicant

Further, this application should have been brought within a reasonable time. It is almost two years since *Civil Suit No. 0467/2023* was brought before this court having been filed on 2nd June 2023 and the service of summons in summary suit filed on 6th 20 June 2023. Furthermore, no action was taken by the applicant to the have the default judgment entered against him in Civil Suit No. 0467/2023 set aside, until after he was arrested and remanded to civil prison in March 2025. It was observed on this court's Electronic Court Case Management System (ECCMIS) that the applicant only attempted to file *Miscellaneous Application No. 2369/2024 Mutebi Brian aka "MUTTS" v Kitalemire Jimil*, however, the application was closed administratively on 4th 25 November 2024 due to none filing of pleadings and none payment of fees by the applicant.

## **3. Whether the applicant should be granted unconditional leave to defend the suit?**

Since grounds one and two fail, it follows, therefore, that issue three is answered in the negative and, therefore, fails. As already pointed out, the applicant was served with court process on 16th 30 June 2023; which notified him about the impending, *Civil Suit No. 0467/2023*, against him. Despite being served, the applicant did not bother to file his application for leave to appear and defend. The applicant cannot now turn around and state that he has a triable issue when he did not respond to an opportunity to have the said issue tried before this court.

35 The show of inadvertence on the part of the applicant disentitles him from being granted unconditional leave to defend the suit.

# 5 **4. Whether the applicant is entitled to immediate release from civil prison pending the hearing and d Counsel for the applicant?**

Counsel for the applicant argued that civil imprisonment is a coercive measure and not a punishment; and relied on various provisions including Article 23 of the 1995 Constitution as amended and Order 22 Rule 31 CPR to argue that court is empowered to release a judgment 10 debtor from civil prison upon sufficient cause being shown. Counsel for the applicant further argued that detention of the applicant under a judgment obtained through defective service is a clear case warranting release. He cited various cases including: *Patel v Singh [1961] EA 565* where Court held that execution proceedings must not be oppressive or unjust, and courts should exercise discretion to prevent such injustice; and *Francis Odong v Uganda Revenue Authority* 15 *HCMC No. 0242 of 2019*, where Hon. Justice Ssekaana Musa held that civil imprisonment is a

draconian measure and should not be sustained where there is a credible challenge to the judgment upon which it is founded.

Counsel also relied on the cases of *Francis Muwonge v Attorney General HCMC No. 744 of 2003*, where the court ordered the release of an applicant who had been committed to civil prison 20 under questionable circumstances, pending the determination of his application. Counsel prayed that the applicant be released on the date fixed for scheduling, and allowed to attend proceedings as a free person while awaiting determination of this application.

Counsel for the respondent did not submit on this issue.

# 25 **Determination**

Section 40 of *the* Civil Procedure Act cap *282* provide for the option of execution by way of arrest and commitment to civil prison, of the judgment-debtor as a mode of execution. In such an instance, where a judgment-debtor has means to pay and still refuses or neglects to honour his/her obligations, he/she can be sent to civil prison. The court would, therefore, order 30 imprisonment of the judgment debtor only if it is established that the judgment debtor could, but would not pay.

This court has the discretion to order release of a judgment debtor if it is satisfied that the judgment debtor is unable to pay the debt due, due to poverty or for some other sufficient cause. 35 In this instance, the applicant borrowed US Dollars 23,000 from the respondent and failed to clear the debt owed. No effort was made by the applicant to settle the said debt or negotiate a settlement, even when execution proceedings were commenced against him. The applicant attached ledgers to the applicant but did not prove that the said US Dollars 23,000 was actually paid back to and received by the respondent and the entire debt settled.

- 5 The applicant was inadvertent about the suit against him until he was arrested and detained in civil prison. This is not an issue of the applicant's inability to pay the debt owed to the respondent but rather a refusal to pay. Court should not look kindly on such litigants and should not be used to pervert the course of justice. This court is alive to the fact that the effectiveness of the court system is dependent on all parties engaged in litigation abiding by the rules of proper - 10 practice. The applicant in this instance, did not adhere to the clearly laid out rules. This issue is also answered in the negative and, therefore, fails.

Basing on the foregoing, this application is dismissed with costs to the Respondent.

15 I so order.

*Dr. Ginamia Melody Ngwatu Ag. Judge 17* 20 *th April 2025*