High Court at Mbale Clarifies That Foreign Development Agencies Are Not Automatically Immune From Suit, and That Improper Service Cannot Be Alleged Where Service Is Admitted and Acknowledged

Waboga David
Nov 15
7 min read

FACTS

The Respondents, comprising multiple minors (suing through next friends) and adults, initiated Civil Suit No. 062 of 2023 against the USADF for general, special, and exemplary damages arising from a tort of negligence. The claim stemmed from a motor vehicle accident involving a vehicle owned and registered in the name of the USADF, which injured the Respondents while transporting children (allegedly in the course of commercial activity).

On October 25, 2023, the summons and plaint were sealed by the High Court.

On October 26, 2023, the documents were hand-delivered to and acknowledged by Ms. Mercy Omara at the USADF's Country Program Coordinator office in Kampala, Uganda.

The USADF did not file a defense within the 15-day statutory period under Order 9 Rule 1(2) of the Civil Procedure Rules SI 71-1.

Consequently, on November 15, 2023, the court entered a default judgment against the USADF under Order 9 Rule 10.

In July 2024, the Applicant (United States, on behalf of USADF) filed two consolidated applications: Miscellaneous Application No. 116 (seeking enlargement of time to object to jurisdiction, declaration of lack of jurisdiction, setting aside of service, and dismissal of the suit) and Miscellaneous Application No. 117 (seeking to set aside the default judgment and leave to object to jurisdiction).

The applications were supported by affidavits from Ada E. Bosque (Acting Director, Office of Foreign Litigation, U.S. Department of Justice), asserting USADF's status as a U.S. government agency entitled to sovereign immunity and improper service via diplomatic channels.

The Respondents opposed via affidavits from Kiprotich Ben, arguing proper service under Ugandan law, USADF's independent status, and constructive notice (including a Diplomatic Note issued by the Applicant to Uganda's Ministry of Foreign Affairs).

Issues

The Court framed three issues:

(a) Whether USADF is an agent of the United States and therefore entitled to diplomatic/sovereign immunity.

(b) Whether sufficient cause was shown to set aside the ex parte (default) judgment.

(c) Remedies available to the parties.

SUBMISSIONS

Applicant (United States / USADF)

The Applicant argued that USADF is an integral agency of the U.S. Government under customary international law and Article 5 of the UN Convention on Jurisdictional Immunities of States and Their Property (2004), lacking separate legal personality and entitled to sovereign immunity.

The Applicant contended that the Service was invalid as it bypassed diplomatic channels (Order 5 Rules 22-32, Civil Procedure Rules) and failed to provide 60 days' notice, depriving the Applicant of awareness and opportunity to respond (Lydia Naiga v. Ask Services Limited HCMA 482/2020; Attorney General v. Wazuri Medicare Limited HCMA 283/2023).

The default judgment should be set aside for improper service and jurisdictional defects, constituting a non-waiver of immunity.

Lastly, enlargement of time and dismissal of the suit were sought to uphold international comity.

Respondents

The Respondents argued that USADF is not a U.S. government agency but an independent body corporate under the African Development Foundation Act (U.S. Code Title 22, Chapter 71), capable of suing/being sued in its own name (Sections 290h-1(a) and 290h-4(a)(1)-(2)).

Service complied with Order 5 Rule 1(4), Civil Procedure Rules, via delivery to the Kampala office; diplomatic rules do not apply to non-sovereign entities.

Even if immunity applied, it is excepted under Article 31(1)(c) of the Diplomatic Privileges Act (Cap. 185) for commercial activities (e.g., vehicle transport).

No "sufficient cause" exists to set aside the judgment, as the Applicant had notice but delayed response (Florence Nabatanzi v. Naome Binsobedde SCCA No. 6/1987; Hikima Kyamanywa v. Sajjabi Chris CACA No. 1/2006).

The Diplomatic Note issued by the Applicant evidenced constructive notice, rendering the setting-aside application moot.

LEGAL REPRESENTATION

Applicant, Mr. Rayner Magyezi, Kampala Associated Advocates
Respondents, Mr. Sselwambala Julius, Mercio Advocates

COURT’S FINDINGS

Issue 1: Whether USADF is a sovereign agent entitled to immunity

The Court gave a detailed analysis of the legal status of the United States African Development Foundation (USADF), drawing from the USADF Act, Ugandan law, and the Diplomatic Privileges framework.

(a) USADF is a Body Corporate Capable of Being Sued

The Court held that USADF is established as an independent corporate body with full legal capacity to sue and be sued. It quoted the enabling legislation:

“The African Development Foundation… is a body corporate… with capacity to sue or be sued, complain and defend, in its corporate name in any court of competent jurisdiction.”

Relying on Section 290h-4(a)(1) & (2) of the USADF Act, the Court emphasized that the phrase “any court of competent jurisdiction” demonstrates that USADF was intended to be amenable to suit in any jurisdiction in which it operates. The Court stated:

“"The catch phrase under Section 290h-4 (a) (1) & (2) of the USADF ACT /ADF ACT U.S Code Title 22, Chapter 71, is that the African Development Foundation, as a body corporate, can sue or be sued in any court of competent jurisdiction. My understanding of this provision is that, the use of the words 'any court of competent jurisdiction' in the enactment provision which establishes the African Development Foundation is a symbolisation of an expression of lack of restriction in filing legal proceedings against the African Development Foundation in any geographical jurisdiction it operates in, like in this case Uganda."

(b) The High Court of Uganda Has Jurisdiction

The Court reaffirmed its unlimited original jurisdiction under Article 139(1) of the Constitution and Section 14(1) of the Judicature Act, holding that it is competent to hear suits involving USADF.

"According to Article 31 (1) (c) of the Diplomatic Privileges Act, Cap. 185, it provides that— 'A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.'"

"I agree with the submissions of counsel for the Respondents that the incident which gave rise to the cause of action in the main suit stems from a commercial activity. In that context, even if the African Development Foundation was listed among the prescribed organizations which enjoy diplomatic immunity and privileges, its immunity and privileges would fall under the exceptions to diplomatic immunity and privileges."

(c) USADF Does Not Enjoy Diplomatic Immunity in Uganda

The Court found that USADF is not listed under the Diplomatic Privileges Act (Cap. 185) or the Diplomatic Privileges (Extension to Prescribed Organisations) Regulations, SI 201-1:

“There is no mention of the African Development Foundation among the list of prescribed organizations that enjoy diplomatic immunity and privileges in Uganda.”

USADF, therefore cannot claim diplomatic or sovereign immunity.

(d) Even if Immunity Existed, the Dispute Falls Under the ‘Commercial Activity’ Exception

The Court noted that the cause of action, arising from vehicle transport and related transactions, was purely commercial. Under Article 31(1)(c) of the Diplomatic Privileges Act:

“…a diplomatic agent shall enjoy immunity… except in the case of an action relating to any professional or commercial activity exercised… outside his official functions.”

The Court concluded:

“The incident… stems from a commercial activity… even if the African Development Foundation was listed among prescribed organizations… its immunity would fall under the exceptions to diplomatic immunity.”

Conclusion on Issue 1

USADF is not a sovereign or diplomatic agent and does not enjoy immunity in Uganda.

Issue 2: Whether Sufficient Cause Was Shown to Set Aside the Default Judgment

(a) USADF Admitted Receipt of Service but Took No Action

USADF acknowledged receiving summons but failed to file a defence or take any procedural step within the statutory 15 days under Order 9 Rule 1(2) CPR.

“The African Development Foundation received service… but did not file a defence… The time limited for filing a defence is fifteen days.”

(b) Notice of Intention to Defend Was Filed Out of Time

The Applicant only filed a notice long after the default judgment had been entered and could not give a legally acceptable explanation for the delay.

The Court emphasized that objections to jurisdiction must be raised in a timely notice of intention to defend:

“…the Applicant did not comply with the timelines in the law. The notice of intention to defend… was filed beyond the limited time… Failure to take any procedural step… is an indictment of lack of reverence to court process, which this court cannot condone.”

(c) No Sufficient Cause Established

The Court applied the principle from Florence Nabatanzi v. Naome Binsobedde:

“Sufficient reason… must relate to inability or failure to take a particular step in time.”

The Court held that demanding diplomatic service or claiming mistaken immunity did not justify the delay.

Conclusion on Issue 2

No sufficient cause was established to set aside the default judgment.

Issue 3: Remedies

Given the conclusions on both issues, the Court found no basis for interfering with the judgment of 15 November 2023.

HOLDING

The High Court made the following determinations:

USADF is an independent corporate body suable in any court of competent jurisdiction, including the High Court of Uganda.
USADF does not enjoy diplomatic or sovereign immunity, as it is not a prescribed organisation under Ugandan law.
Service upon USADF was proper, having been received and acknowledged.
USADF failed to file a defence within time, and objections to jurisdiction were not raised in accordance with Order 9 Rule 3 CPR.
No sufficient cause exists to set aside the default judgment entered in Civil Suit No. 062 of 2023.
Both applications—MA 116 and MA 117 of 2024—were dismissed with costs to the Respondents.

The Court concluded:

“In view of my findings… the two consolidated applications herein are hereby disallowed with costs.”

KEY TAKEAWAYS

Foreign development agencies registered as corporate bodies do not automatically enjoy sovereign immunity in Uganda.
Diplomatic immunity must be expressly granted under the Diplomatic Privileges Act and its Regulations.
Commercial activities conducted by foreign agencies fall outside immunity protections.
A party served with summons must comply with the 15-day statutory timeline even where it intends to challenge jurisdiction.
Challenges to jurisdiction must be made after filing a notice of intention to defend (Order 9 Rule 3 CPR).
Improper service cannot be alleged where service is admitted and receipt acknowledged.
Foreign entities operating in Uganda must ensure Proper internal processes for receiving court process, Timely responses to suits, Understanding of Ugandan civil procedure rules
Courts will not set aside a default judgment where delay is deliberate, strategic, or unsupported by sufficient cause.