Nandutu Asha and Wamboga Ali v Kamats Investments Credit Services Ltd (Civil Appeal No. 34 of 2022) [2025] UGHC 488 (8 July 2025)

# **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE**

## **CIVIL APPEAL NO. 0034 OF 2022**

#### **(ARISING FROM MISCELLANEOUS APPLICATION NO. 087 OF 2021)**

## **(ARISING FROM CIVIL SUIT NO. 155 OF 2020)**

## **1. NANDUTU ASHA**

**2. WAMBOGA ALI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS VERSUS**

# **KAMATS INVESTMENTS CREDIT SERVICES LTD :::::::::::::::: RESPONDENT**

# **BEOFRE: HON. JUSTICE LUBEGA FAROUQ RULING**

#### 1. **Introduction**

2. The Plaintiff/Respondent instituted Civil Suit No. 155 of 2020 against the defendants/Appellants seeking to recover a liquidated sum of money, interest and costs of the suit.

# 3. **Background**

- 4. After institution of the foregoing suit, the Appellants applied for leave to appear and defend the suit which was granted. The Appellants' written statement of defence was however, struck out for being defective and court entered a default judgment against the Appellants for the decretal sum plus interest at the commercial rate and costs of the suit. - 5. The trial court having struck out the Appellant's written statement of defence, they instituted Miscellaneous Application No. 87 of 2021 seeking to set aside the judgment and review the judgment and orders entered in Civil Suit No. 155 of 2020 and leave be granted to the Appellants to file their written statement of defence in Civil Suit No. 155 of 2020 for the second time but the same was dismissed. - 6. The Appellants were dissatisfied with the decision of the trial court hence, this appeal.

# 7. **Grounds of appeal**

- (a) The trial magistrate erred in law and fact when he failed to properly evaluate evidence on record and dismissed Miscellaneous Application No. 87 of 2021 thus arriving at an erroneous decision. - (b) The learned trial magistrate erred in law and fact when he failed to give an exhaustive scrutiny and proper evaluation of legal arguments on the court record thus arriving at a wrong decision - (c) The trial magistrate erred in law and fact when he failed to exercise his discretion judiciously thus arriving at a wrong decision - (d) The decision of the learned trial magistrate has occasioned a substantial miscarriage of justice. - 8. The Appellants prayed that the appeal be allowed, the ruling and order of the trial court in Civil Suit No. 155 of 2020 be set aside, Civil Suit No. 155 of 2020 be remitted for trial on its merit and that the Appellants be awarded costs here and in the court below.

# 9. **Legal Representation**

- 10. Counsel Nangulu Eddie represented the Appellants whereas Counsel Mugomu Muminu holding brief for Counsel Nappa Geoffrey represented the Respondent. - 11. This Appeal proceeded by way of written submissions and all parties complied. I will consider them in the determination of this ruling.

# 12. **Duty of the first appellate court**

13. This court is aware of its duty as the first appellate court which is to evaluate all the evidence on the court. *(See: Banco Arabe Espanol V. Bank of Uganda [1999] UGSC 1)*

# 14. **Determination of court**

15. I will resolve all the grounds of appeal together as below Ground No.1:

*The trial magistrates erred in law and fact when he failed to properly evaluate evidence on record and dismissed Miscellaneous Application No. 87 of 2021 thus arriving at an erroneous decision.*

- 16. Ground No.2: *The learned trial magistrate erred in law and fact when he failed to give an exhaustive scrutiny and proper evaluation of legal arguments on the court record thus arriving at a wrong decisio*n - 17. Ground No.3: *The trial magistrate erred in law and fact when he failed to exercise his discretion judiciously thus arriving at a wrong decision* - 18. Ground No.4: *The decision of the learned trial magistrate has occasioned a substantial miscarriage of justice.* - 19. Upon a careful review of the lower court record, I note that the Respondent instituted a summary suit against the Appellants. The Appellants subsequently applied for and were granted leave to file a defence. However, the written statement of defence filed did not contain the designated area for endorsement and sealing by the judicial officer, as required. - 20. Following that procedural error, the trial court struck out the Appellants' written statement of defence under Order 9 rule 1 (1) of the Civil Procedure Rules and entered a default judgment. - 21. The Appellants then instituted Miscellaneous Application No. 087 of 2021 seeking the judgment and orders entered in Civil Suit No. 155 of 2020 on the 23rd of September, 2021 to be set aside, leave be granted to the Applicants to file their written statement of defence in Civil Suit No. 155 of 2020, Civil Suit No. 155 of 2020 be heard and determined on its merits and costs be provided for. - 22. I have perused the lower court ruling and noted that the trial magistrate dismissed Miscellaneous Application No. 087 of 2021 because, no just ground to warrant setting aside the court's decree was put fore ward or argued by the Appellants. - 23. I have further reviewed the affidavit in support to Miscellaneous Application No. 087 of 2021 which was sworn by Nandutu Asha and observed that under paragraphs 12, 15, 16 and 17 respectively, the Appellants averred as follows;

*"That the other applicant and I have a right under the Constitution to be heard before we are condemned especially in circumstances where we have complied with the instructions, directives and summons of the court;*

*That neither of us have been negligently or dilatory in any manner during the pursuit of this matter. Besides we are not knowledgeable in the strict requirement of the Civil Procedure Rules and should not therefore be condemned;*

*That the other applicant and I shall suffer irreparable damage and injury if we are denied our constitutional right to be heard before we are condemned. We shall further be condemned unjustifiably to pay a debt that is owed;*

*That the other applicant and I shall further suffer irreparable damage if the damage is technically allowed to unjustly enrich itself."*

- 24. The above averments in my view, contained some of the grounds which supported the Appellants' application. - 25. **Order 9 rule 1 (1) of the Civil Procedure Rules SI-71** provides that- *"A defendant on or before the day fixed in the summons for him or her to file a defence shall file the defence by delivering to the proper officer a defence in writing dated on the day of its filing, and containing the name of the defendant's advocate, or stating that the defendant defends in person and also the defendant's address for service. In such case he or she shall at the same time deliver to the officer a copy of the defence, which the officer shall seal with the official seal, showing the date on which it is sealed, and then return it to the person filing the defence, and the copy of the defence so sealed shall be a certificate that the defence was filed on the day indicated by the seal.* - 26. The above provision makes it mandatory for the written statement of defence to be sealed by the officer with the official seal, showing the date on which it is sealed. The document sealed is the certificate which

shows that the written statement of defence was filed on the day indicated. Thus, absence of such in the written statement of defence implies, it was never filed and the trial magistrate was right to strike it out.

# 27. However, **Order 9 rule 12 of the rules** provides 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."*

28. **Order 36 rule 11 of the Civil Procedure Rules** also 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."*

- 29. The above provisions grant court with the discretion or power to vary or set aside decrees which have been entered ex-parte upon proof of a just cause. - 30. Based on the averments outlined in the body of this ruling, it is evident that the Appellants asserted that they have a right to be heard, claimed lack of knowledge in strict civil procedure, and contended that they would suffer irreparable harm if denied the opportunity to be heard. - 31. In the view of this Court, the grounds presented were sufficient to warrant the granting of Miscellaneous Application No. 087 of 2021, in light of the provisions of Order 9 Rule 12, Order 36 Rule 11, and Article 126(2) (e) of the Constitution of the Republic of Uganda. - 32. However, the court record clearly indicates that the written statement of defence in Civil Suit No. 0155 of 2017 was drawn and filed by N. Mugoda Advocates (Nangulu and Mugoda), a firm presumed to have

sufficient knowledge of civil procedure. Notably, the same law firm also represented the Appellants in this appeal as well as in Miscellaneous Application No. 087 of 2021. It is therefore not surprising that no plea of mistake of counsel was raised.

- 33. Therefore, since the Appellants engaged counsel whom they reasonably believed to possess adequate knowledge of civil procedure, the failure to comply with the procedural requirements under Order 9 Rule 1(1) should not be attributed to the Appellants, but rather to the advocate they retained to represent them. - 34. In **Capt Phillip Ongom V. Catherine Nyero Owota SCCA No.14 of 2001**, it was held that-

*"a litigant ought not to bear the consequences of the advocate's default unless the litigant is privy to the default or the default results from failure on the part of the litigant to give the advocate due instructions."*

- 35. It therefore follows that, having engaged Nangulu and Mugoda Advocates to represent them, any fault or negligence in the drafting of the written statement of defence rests squarely with the said advocates and cannot be attributed to the Appellants. - 36. In **Hon. Rose Okul Okullo and anor V. Among Annet Anita Court of Appeal Election Petition No. 35 of 2007**, Justice Twinomujuni held that-

*"In our judgment, Mr. Komakech Godfrey and his law firm of M/s Victoria Advocates and Consultants failed to show cause why they should not be condemned to pay costs of the applicants due to their gross negligence in handling the respondents appeal and the application to strike out the appeal. It is therefore ordered that they are liable to pay the costs of the petition, the appeal and the application to the applicants."*

37. Similarly, in this case, it is obvious that poor drafting of the written statement of defence was as a result of counsel's negligence and for that reason, Nagulu and Mugoda Advocates are liable to pay costs of this appeal to the Respondent.

- 38. In the circumstance, grounds 1, 2, 3 and 4 are answered in the affirmative. - 39. This appeal accordingly succeeds in the terms below- - (a) The judgment and decree in Civil Suit No. 155 of 2020 is set aside. - (b) The Appellants are granted leave to file the amended written statement of defence within 7 days from the date of this ruling. - (c) Costs of this Appeal are awarded to the Respondent and shall be paid by Nangulu and Mugoda Advocates, counsel for the Appellants.

I so order.

**…………………………..**

**Ag. JUDGE** *Judgment delivered via the emails of the Advocates of the parties on 8th of July, 2025*

**LUBEGA FAROUQ**