Kibirige and Another v Namuga and Another (Miscellaneous Application 1140 of 2024) [2024] UGHCLD 138 (13 May 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DIVISION)

ly conjudge<br> $\frac{1}{3}$ $\frac{5}{3}$ $\frac{2024}{5}$

# **MISCELLANEOUS APPLICATION NO.1140 OF 2024**

(Arising out of FD MA. 006 of 2024, all from Civil Suit No.395 of 2023) $\mathsf{S}$

1. KIBIRIGE KASULE VINCENT

2. SENFUKA KIBIRIGE CHARLES::::::::::::::::::::::::::::::::::::

#### VERSUS

#### 1. NAMUGA MASTULA

2. NAMUKASA NAKUBULWA FLORENCE::::::::::::::::::::::::::::::::::: $10$

# Before: Lady Justice Alexandra Nkonge Rugadya.

### Ruling.

This application seeks orders that the applicant be granted leave to amend the plaint by adding STABEX INTERNATIONAL LTD (U), Kafeero Isaac, Yunus 15 Baale, Simon Nsubuga Mujambula, Charles Mbogo, Sekajja Ronald, Ssebunya John and Nafuka Leticia as parties to Civil Suit No. 379 of 2023.

The grounds upon which the application is premised are contained in the affidavit in support thereof deponed by the applicant. This court did not have

the opportunity to peruse it as the same were not filed on ECCMIS in **FD-MA-**20 006-2024 filed in the Family Division where the main suit **Civil Suit No.395** of 2023 had been transferred to.

When it was referred back to this division FD-MA-OO6-2024 became LD-MA-1140-2024. The pleadings were not however availed to court via ECCMIS.

25 However, from the record the applicants are two out of the four joint administrators of the estate of the late Yowana Birigwa. The four had jointly filed C. S No. 395 of 2023 in respect of the suit land comprised in Busiro Block 263 Plot 123, at Ssenge, Wakiso district.

Among the orders sought in that suit are that the l"t defendant therein has no kibanja interest; the understanding between the lst and 2nd defendant be declared illegal, nu1l and void; and a permancnt injunction restraining the defendants from interfering with the suit land.

5 The instant application fi1ed by thc two administrators seeks to add nine (9) other partics as dcfcndants to thc main suit, including the co-administrators who are alrcady co-plaintiffs in C. S iVo. 395 of 2O23.

The claim is that the applicants secured a permanent injunction but the same was violated by the respondents together witLl Stabex International (tJ)

10 Ltd and Yunusu Baale in constructing a petro station thereon based on an agreement entered into by the respondcnts; Leticia Nanfuka and Sebunya John who sold part of the suit land and caused several subdivisions along with their assignees/ agents; and that any orders made in the main suit wili affect all these parties' interests; and their addition is necessary in 15 determining the main suit to avoid multiplicity of suits.

Thc rcspondcnts in thcir submissions contendcd that the application is incompetent because it is brought under OI r 1O(2) oJ the Ci,r'.l procedure Rules by chamber summons.

That the application was brought without the consent and approval of the other administrators, while thc main suit under which the application arises was filed by all the administrators of thc cstatc of thc latc yowana Birigwa; and as such thc application is defcctive on the ground that thc applicants have no locus standi. 20

That there is insufficient proof of alleged transactions or interest claimed by the parties to bc added to thc suit. 25

# Consideration bu court.

Ord.er 6 rule 79 oJ the Civil Procedure Rules SI Z7-l governs the amendment of pleadings, cmpowcring court at any stage of the proceedings to allow cithcr party to alter or amend thcir pleadings in such a manner, and on such tcrms as may bc just. A1l such amendmcnts arc to be made as may be necessary for purposes of determining the real controversy between the parties.

Furthermore, Order 1 rule 10(2) of the Civil Procedure Rules S. I 71-1 provides that:

'The court may at any stage of the proceedings either upon or $\mathsf{S}$ without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, whose presence before 10 the court may be necessary in order to make the court effectually and completely adjudicate upon and settle all questions involved in the suit, be added'

It is important to note that the purpose of joinder of parties as was stated in Samson Sempasa vs P. K. Sengendo H. C. M. A No.577 of 2013, is to enable 15 court to effectually and completely deal with the matter in controversy and *avoid multiplicity of proceedings.*

For a party to be joined on ground that their presence is necessary for the effective and complete settlement of all questions involved in the suit, it is necessary to show either that the orders sought would legally affect the interest 20 of that person and that it is desirable to have that person joined to avoid multiplicity of suits, or that that person could not effectually set up a desired defence unless that person was joined or an order made that would bind that other person (Departed Asians Property Custodian Board vs. Jaffer brothers Ltd [1999] 1. E. A 55). 25

It also goes without saying that the applicant must have the necessary capacity to make the prayers.

In the present case, the applicant seeks that Stabex International (U) Ltd, Kafeero Isaac, Yunus Baale, Simon Nsubuga Mujambula, Charles Mbogo, Sekajja Ronald, Ssebunya John and Nafuka Leticia be added as parties to Civil Suit No. 395 of 2017 on grounds that they participated in the illegal

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transactions and transfers of the suit land, despite a subsisting injunction, which the applicants now seeks to recover.

Ssebunya John and Nafuka Leticia, two of the parties to be added as respondents are actually the 3<sup>rd</sup> and 4<sup>th</sup> plaintiffs in the main suit and coadministrators.

The prayers sought by the applicants and their fellow administrators in the main suit not only raise questions pertaining to the validity of the transactions leading up to the sale and transfer of the suit land, but also seek to refrain any further transactions/dealings thereon.

#### 10 **Decision of court:**

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$\mathsf{S}$

Given the fact that the main suit was filed by all the administrators, they are required to act in unison when it comes to matters concerning the estate; including filing a suit to protect the estate. That includes moving court to permit then make amendments to that suit.

- In the peculiar circumstances of this application the court is being asked to 15 add new parties and remove two of the co-plaintiffs/co-administrators without their consent and instead make them defendants, which would inevitably result in adjusting the prayers/reliefs sought in the main suit. - The dramatic shift from one cause of action which existed at the time the main suit was filed to another cause of action which may have occurred thereafter 20 involving some of the plaintiffs would necessitate adjustments in the entire pleadings, with all due respect.

I am therefore inclined to agree with counsel for the respondent that the application is defective. The applicants have no locus standi to make the amendments sought in this application, before seeking the prior approval of 25 their co-administrators, let alone seeking to rely on a court order to force the two out of the suit they willingly filed.

If the applicants have a cause of action against the two administrators, they can only pursue a different course of action.

They also have to make a choice between maintaining the main suit in its form or institute a fresh suit to incorporate all the parties they seek to add to this suit. I therefore decline to grant this application. Costs awarded to the respondents.

bob for

Alexandra Nkonge Rugadya.

Judge

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$\mathsf{S}$

$13^{th}$ May, 2024.

Deliveed via encal<br>aboling<br>13/5/2024