KCB Bank Uganda Limited v Leeward Investments (Civil Suit No. 448 of 2025) [2025] UGCommC 200 (25 June 2025)

5 THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) CIVIL SUIT NO. 0448 OF 2025

10 KCB BANK UGANDA LIMITED………………….…….. PLAINTIFF VERSUS LEEWARD INVESTMENTS………………………….... DEFENDANT

BEFORE: HON. LADY JUSTICE SUSAN ODONGO

JUDGMENT

The Plaintiff filed this suit for the following orders:

- a) Payment of Ugx 88,429,167/- (Uganda Shillings Eighty Eight million Four Hundred Twenty Nine Thousand, One hundred Six Seven only) 20 being outstanding principal loan, interest, and penalties; - b) Interest on a) above at a rate of 29% from the date of filing until payment in full; - c) Costs of the suit.

Summons to file a defence were issued by the Registrar on 1 st May 2025 for

25 service upon the defendant by Atwijukire Allan, an Advocate of the High Court. (*See: affidavit of service sworn by Atwijukire Allan on 14 th May 2025).* The said process server sought from the plaintiff information on the physical address of the defendant but was informed that the said information was not indicated on the defendant's loan application documents. However, the telephone number of


- 5 one of the defendant's directors, Omia Patrick, which is 0756365360 could be obtained through the Head of Recoveries and Debit Collection at the firm. The two had been in touch. That he confirmed that the said number is registered in the name of the said Omia Patrick, and he called the number for the purpose of establishing the location of the defendant to serve the summons but he did not - answer. That on 13 10 th May 2025 he sent a WhatsApp message to Omia Patrick via the said number introducing himself and attaching copies of the Plaint and Summons to file a defence, which messages were successfully delivered and responded to.

However, the defendant has, to date, not filed their defense. Premised on this,

15 the plaintiff's lawyers have written to this Honourable Court applying for default judgement to be entered against the defendant pursuant to the provisions of Order 9 rule 6 of the Civil Procedure Rules S. I. 17-1.

Issues for Determination

- When this matter was called on for hearing, the plaintiff appeared and was 20 represented by Counsel Jennipher Mahoro. The Plaintiff reiterated the prayer for default judgement and addressed court on the law as relates to service of summons. I am therefore inclined to consider the following issues in detrmining this matter. - 1. Whether service of summons was effective. - 25 2. Whether default judgement should be entered against the defendant.

Determination by Court

*Issue 1: Whether service of summons was effective.*


- 5 Order 5 of the Civil Procedure Rules, SI 71-1 sets out a robust procedure for the issuance and service of summons upon the defendant for purposes of requiring him/her to file a defence within a specified time or to appear and answer the claim on a specified day. - According to rule 8 read with rule 10 of the Order, wherever it is practicable, 10 service of summons shall be made by delivering a signed copy to the defendant in person, unless he or she has an agent empowered to accept service, then on the agent. The rules require that the defendant or the agent or other person should acknowledge receipt by endorsement of service. - For Corporations, Order 29 rule 2 of the Civil Procedure Rules, which is subject 15 to any statutory provision regulating service of process, guides that summons may be served on the secretary or any director or principal officer of the corporation; or by leaving it or sending it by post address to the corporation at the registered office or at the place of business of the corporation. - To keep pace with the rapidly evolving technological landscape, statutes, 20 regulations and court-made rules, have been established to address matters that can now be managed electronically, from transactions and signatures to service of court documents. To regulate the use of technology, particularly the electronic handling of court documents, *The Constitution

(Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Directions*, have been 25 issued to govern this area. The Practice Directions are not intended to supplant but rather to supplement and complement the Civil Procedure Rules. The Practise Directions call upon both the court and the parties to use technology for expeditious, more efficient and effective court proceedings *(Paragraph 5(1) of the Practice Directions).* To that end, in preparing a case for trial, the parties shall be 30 specifically encouraged to serve documents electronically through email, instant


5 messaging applications and any other widely used electronic communications service *(Paragraph 7 (2)(c) of the Practice Directions).*

Reflective of the Practise Directions and alive to the evolution of technology, numerous judicial decisions have upheld that electronic service of court documents is effective and permissible. (*See: Nyanzi Fred Sentamu v. The*

10 *Electoral Commission and 2 Others, Miscellaneous Application No.10 of 2021/Election Petition Appeal No.20 of 2021; Male H. Mabirizi v. Attorney General, High Court Misc. Application No. 918 of 2021; Musumba Isaac Isanga v. Quid Financials Ltd, High Court Misc. Application No. 139 of 2020).*

The elaborate procedure for the service of summons is purposed to uphold the 15 principle of the right to a fair hearing as enshrined in Article 28 (1) and (5) of the Constitution of Uganda. As a crucial aspect of natural justice, the other party should be informed about the case against them, and be given the opportunity to present their side. Therefore, to achieve this goal, it is essential not only that the other party was served with summons but also that they received them.

20 In the case of electronic service, various platforms have their own methods for confirming receipt, with some even providing confirmation when a message has been read. In my view, when considering whether to accept evidence of successful service via electronic means, a judicial officer should apply the highest verification standard that a given platform offers to ensure that the message has 25 been properly brought to the other party's attention.

In respect to the WhatsApp platform, one should satisfy court that indeed the number to which the message is being sent belongs to the person and is being utilized by the person or has in the recent months been used by that person. Evidence of this can be established in several ways, such as demonstrating that


5 the number is officially registered under the party's name; showing that it is listed as a contact for the individual in a document held by the party seeking to prove effective service; or confirming that the number is linked to the person's online profile or business directory listing. As proof of receipt, in the latest and common version of WhatsApp used by several subscribers, the icon should 10 clearly indicate that not only was the message and any attachments delivered to the other party's phone number but they were opened. It is even more beneficial

where a recipient responds to a message.

In the case before me, the plaintiff filed the suit on 1 st May 2025 and summons were issued by this court on the same date for service upon the defendant by

- 15 Atwijukire Allan, an Advocate of the High Court. (*See affidavit of service sworn by Atwijukire Allan on 14 th May 2025).* The said process server sought from the plaintiff information on the physical address of the defendant but was informed that the said information was not indicated on the defendant's loan application documents. However, the telephone number of one of the defendant directors, - 20 Omia Patrick, which is 0756365360 could be obtained through the Head of Recoveries and Debit Collection at the firm. That he confirmed that the said number is registered in the name of the said Omia Patrick (*paragraph 5 of the affidavit of service and annexture A Airtel App screenshot).* That he called the number for the purpose of establishing the location of the defendant to serve the summons but he did not answer. That on 13 25 th May 2025 he sent a WhatsApp message to Omia Patrick via the said number introducing himself and attaching copies of the Plaint and Summons to file a defence, which messages were successfully delivered*. (Paragraph 7 of the affidavit and Copies of the printout of the WhatsApp communication attached as Annexture B).*


- 5 I observe that there are two blue checkmarks indicating that the message was delivered and read. In addition, the recipient responded to the message by stating that he would call and discuss the way forward. This, in my opinion, demonstrates that the defendant was made aware of the claim against him and informed of the order to file his defence within a specified time, that is 15 days. - 10 The service of the summons via WhatsApp was therefore effective.

*Issue 2: Whether default judgement should be entered against the defendant?*

It suffices to state that the timely resolution of disputes cannot be overstated, as the credibility and effectiveness of the judicial system are highly dependent on

15 it. In addition, public policy demands that the business of the courts should be conducted expeditiously. One way to support this, is through the diligent participation of the parties to the suit by, inter alia, filing of necessary pleadings to enable the progress of the case. Where the defendant fails to file a defense within the time prescribed in the summons, the law under Order 9 rule 5 and 20 rule 6 of the Civil Procedure Rules, provides guidance on how to proceed.

The provisions state;

*Order 9*

*5. Affidavit of service upon failure to file defence*

*Where any defendant fails to file a defence on or before the day fixed in the summons and* 25 *the plaintiff is desirous of proceeding upon default of filing the defence under any of the rules of this Order, he or she shall cause an affidavit of service of the summons and failure of the defendant to file a defence within the prescribed time to be filed upon the record.*

*6. Judgment upon a liquidated demand*


5 *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.*

Under the said provisions of the law, the court is called upon to avoid 10 unnecessary delay and promote the efficient administration of justice.

I am satisfied that service of summons on the defendant was effective, an affidavit of service is on the record. In any case, the plaintiff should not be deprived of timely relief due to the defendant's dilatory conduct.

Consequent thereto, judgment is entered for the plaintiff against the defendant 15 as follows:

- d) Payment by the defendant of Ugx 88,429,167/- (Uganda Shillings Eighty Eight million Four Hundred Twenty Nine Thousand, One hundred Six Seven only); - e) Interest on a) above at a rate of 29% from the date of filing until payment 20 in full; - f) The costs of the suit are awarded to the plaintiff.

I so order.

Dated, signed and delivered electronically this 25 th day of June, 2025.