Kayanja v Yekee and Another (Civil Suit No. 263/2003) [2008] UGHCCD 1 (8 April 2008)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT NA $6H/C$ $CH$ CIVIL SUIT NO. 263/2003

D. KAYANJA:::::::::::::::::: **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\* VERSUS**

# YEKEE JOHN AND ANOTHER ::::::::::::::::::::::::::::::::::::

#### BEFORE: HON. LADY JUSTICE ANNA MAGEZI

#### **RULING**

This application under Order 24 rr 3 and 12 sought for the substitution of the applicant as a plaintiff since the original $\alpha$ one had since died. The legal representative of **David Kavanja (deceased)** Nassozi Sylvia brought the application. She submitted that since the matter had not been disposed of when the deceased died it was only just that the application be allowed. The learned counsel for the respondent objected to the application urguing that the matter had abated. That being a personal injury claim the suit abated with the death of the original plaintiff. That despite being the legal representative of the deceased the plicant could not proceed with the prosecution of the

er.

The applicant proceeded under Order 24(2). A scrutiny of where one of several plaintiffs to sue survives. I am of the consideration opinion that the case before me is different. The present applicant was originally not one of the plaintiffs when **David Kayanja** sued the respondent. or defendants dies and right the said provisions indicates that the orders refers to a case

The right provision would in my opinion be Order 24(3). sole plaintiff dies. Continuation of the action depends on whether the cause of action survives or continues upon which court would cause the matter. This provision deals with events when a the legal representative of the deceased plaintiff take over

Order 24(1) provides that the death of a plaintiff does not continues. action survives or continues. In the circumstances I am persuaded by the decision of *Pulling vs The Great Eastern Railway Company (1882) QBD,* cited by learned counsel cause the suit to abate if the cause of action survives or This order and rules do not define when an

*i ±*

for the respondent. That case decided that the plaintiff could not sue in respect of damages to the intestate's estate arising from a tortuous injury to the intestate's person. the precedent is not binding oh me but agree with it **3** because tortuous action may not be maintainable where the injured plaintiff would be required to prove the negligence of the defendant. This would not be possible if the plaintiff to claim or entitled to those damages is deceased. That the action was unmaintainable. I do appreciate that

I therefore dismiss the application. Costs of the application to be met by each party.

*'I* **S'** ANNA MAGEZI

JUDGE

**c** *<1-* **3**

### $10/04/08$

$\overline{a}$

Mr. Mangeni for the plaintiff absent though notified.

Plaintiff present.

Mr. Steven Zzimula for $2^{nd}$ defendant present.

Court: Ruling read as directed by the Hon. Judge.

$s^r$

$\mathsf{Sgd}\text{:}$ Opesen Thadeus ASSISTANT REGISTRAR $\frac{10000000}{10/04/08}$