THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MUBENDE
MISCELLANEOUS APPLICATION NO. MBD-075 OF 2018 (Arising From Civil Suit No. 002 of 2018)
REGISTERED TRUSTEES OF KIYINDA MITYANA DIOCESE =========APPLICANT
RULING BY: HON. JUSTICE DR. JOSEPH MURANGIRA
The applicant, Registered Trustees of Kiyinda Mityana Diocese, is represented by Mr. Makumbi Benon from Buwule & Mayiga Advocates, Kampala.
The respondent, Steven Kibirango, is represented by Mr. Sam Sserwanga from M/s Sam Sserwanga & Co. Advocates, Kampala.
This application is brought to court by way of Notice of Motion, under Section 96 of the Civil Procedure Act, Cap. 71, Order 9 rule 12 and Order 52 of the Civil Procedure Rules, Statutory Instrument No. 71-1.
This application is seeking the following orders; that:-
- The default judgment in HCCS No. 2 of 2018 be set aside.
- HCCS No. 02 of 2018 be reinstated and the applicant be allowed to file a written statement of defence out of time.
- Execution in HCCS No. 02 of 2018 be stayed.
- Costs of this application be provided for.
This application is based on the following grounds, that:-
- The Respondent filed a suit for trespass on the land against the applicant in HCCS No. 2 of 2018.
- The Registrar entered a default judgment against the applicant on 09th May, 2018.
- That there was no good and effective service of summons on the applicant.
- The applicant is interested in defending the suit.
- It is in the interest of justice that this application be granted to set aside the default judgment, reinstate the same, and allow the applicant to file a written statement of defence out of time.
This application is supported by the affidavit sworn by Rev. Fr. Denis Kyemwa. This affidavit contains more grounds of the application.
The respondent, on 14th August, 2018 filed in court an affidavit in reply and opposition to this application. The applicant, through Rev. Fr. Denis Kyemwa, filed in court an affidavit in rejoinder.
This aforestated affidavit in rejoinder rebutted the affidavit evidence that was adduced by the respondent in his affidavit in reply. The applicant in his two affidavits in support of this application raises very serious contentious matters. Such matters need to be investigated in a full trial between the said parties in HCCS No. 02 of 2018.
Resolution of the application.
The applicant and the respondent filed in court written submissions in support of their respective cases.
Indeed, the Assistant Registrar of this court entered a default judgment in HCCS No. 02 of 2018 on 9th May, 2018. The suit was supposed to be forwarded to the Judge by the Assistant Registrar for formal proof, which was not done. Thus, HCCS No. 02 of 2018 between the parties is still pending trial in this court. Again, in respect of the aforestated finding, order (c ) in the application for stay of execution in HCCS No. 02 of 2018 be stayed, there is no execution that can arise from a default judgment. If the respondent is trying to execute against the applicant the default judgment, such execution would be void and illegal.
Further, I have perused, the affidavits evidence by both parties; the written submissions by both parties; and the proposed written statement of defence attached to the affidavit in support of this application, marked annexture “D” and I make a finding that this application has merit.
It is accordingly granted in the following Orders, that:-
- The default judgment in HCCS No. 02 of 2018 is hereby set aside.
- The applicant is allowed to file the written statement of defence in HCCS No. 02 of 2018 within 10 (ten) days from the date of this ruling.
- Costs of this application are granted to the applicant.
Dated at Mubende this 27th day of August, 2018
DR. JOSEPH MURANGIRA