Kireju and Others v Kahwa and Others (HCT-01-LD-MA-0043-2025) [2025] UGHC 545 (14 July 2025)

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT FORT PJORTAL**

# **HCT-01-LD-MA-0043-2025**

# **(ARISING OUT OF HCT-01-LD-CS-0008-2025)**

- **1. KIREJU JOSTUS** - **2. ZABULONI MUHINDO** - **3. KABUNDU ELIJAH** - **4. MUHESI ZAKAYO ::::::::::::::::::::::::::::::::: APPLICANTS**

## **VERSUS**

- **1. KAHWA ERISA** - **2. KATEBA WILSON** - **3. BALINDA FENEHANSI** - **4. ABWOOLI NYANJURA** - **5. HADI ABERI** - **6. JOHN MBABULIMA** - **7. MBUSA BIRENGESYO** - **8. KAMADI HAMADI** - **9. MUHAMADI MUKE :::::::::::::::::::::::::::::::::::: RESPONDENTS**


**1 |** P a g e

## **BEFORE: HON. JUSTICE VINCENT WAGONA**

## **RULING**

## **Introduction**:

- 1. The Applicants brought the instant Application by Notice of Motion under Section 98 of the Civil Procedure Act, Order 1 Rule 10 (4), Order 1 Rule 13, and Order 52 Rules 1, 2 of the Civil Procedure Rules. The Applicants seek the following Orders; - - **(1) The Plaint in Civil Suit No. 08 of 2025 be amended to add other Defendants to the suit to wit Bakunda Matthew, Kyetunda Daudi, and Mark Kule.** - **(2) Costs of this Application be provided for.**

### **Grounds of the Application**:

2. The Applicants initiated Civil Suit No. 08 of 2025 to recover land in Mwembi village, Bulondo Sub-County, Bundibugyo District from the Respondents. They now assert that *Bakunda Matthew*, *Kyetunda Daudi*, and *Mark Kule* have a significant interest in the suit, as it has been established that they are the ones who unlawfully sold the suit land to the 2nd to 8th Respondents, having acquired


it from the 1st Respondent. The Applicants argue that adding these individuals as defendants is in the best interest of justice.

#### **Response by the Respondents**:

- 3. All the Respondents filed independent Affidavits in Reply. The 1st Respondent argues that Civil Suit No. 08 of 2025 abated on 15th April 2025, after the close of pleadings when the Applicants failed to take out summons for directions within 28 days. Consequently, that no interlocutory applications, including one for amendment of pleadings under Order 6 Rule 19 of the Civil Procedure Rules, are maintainable. He contends that this Application is misconceived, incompetent, and an abuse of court process, as there is no valid or subsisting suit to amend. Allowing the amendment, he asserts, would illegally revive an abated suit without a formal application and order to set aside the abatement, and would be prejudicial and contrary to the proper administration of justice. He seeks dismissal of the application with costs. - 4. The 2nd to 9th Respondents similarly contend that the Application is incurably defective and not properly before the court. They state that they are lawful owners of different parts of the suit land. They argue that *Bakunda Matthew*, *Kyetunda Daudi*, and *Mark Kule*, who are sought to be added, are not parties to this application and cannot be "condemned unheard." They further state that these


proposed parties are not necessary for the court to determine the existing suit. They highlight that the Plaintiffs were served with a defence on 5th March 2025, were supposed to file a reply by 29th March 2025, and extract summons for directions by 11th April 2025, which they failed to do, leading to the abatement of the suit. They state that, there is no suit to which any party can be added.

## **Representation and Hearing**:

5. The Applicants were represented by *M/s Mirembe, Muhoozi & Co. Advocates*, the 1st Respondent was represented by *M/s Bahenzire, Kwikiriza & Co. Advocates*, while the 2nd – 9 th Respondents were represented *M/s Ahabwe James & Co. Advocates*. The matter proceeded by way of written submissions which I have duly considered.

#### **Applicants' Submissions**:

6. Learned Counsel for the Applicants submitted that **Section 33** of the **Judicature Act Cap 16** stipulates that as far as possible, all matters in controversy between the parties should be completely and finally determined and all multiplicities of legal proceedings concerning any of the matters avoided. **Section 98** of **The Civil Procedure Act, cap. 282** in support grants this honorable court inherent powers to make such orders necessary to ensure ends of justice are met. **Order 1 Rule**


**10(2)** of the **Civil Procedure Rules** also provides that the Court may at any stage of the proceedings...upon application of either party... order the name of a party whose presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. Furthermore, that **Order 1 Rule 13** of the **Civil Procedure Rules** provides that "Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court at any time before trial by mention or summons or at the trial of the suit in summary manner".

- 7. Counsel cited the case of **Tibagwa Joshua &4 others vs. Yaya Ucame & 52 others HCMA No. 39 of 2014**, where court emphasized that the main purpose of joining parties to a case is to enable the court to deal with the matter brought before it and avoid multiplicity of proceedings and that it must be established that the party has high interest in the case and that the orders sought in the main suit would directly legally affect the party seeking to be added. - 8. That as per the evidence depicted in the affidavit in support of the Application deponed by the third applicant, it has been made evidently clear that the Applicants brought a suit against the Respondents, but that it was purported to the Applicants that the 2nd to 8th Respondents had acquired the land in issue from the 1st Respondent whereas, it was eventually established that the 2nd to 8th


Respondents acquired the land in dispute from *Bakunda Matthew*, *Kyetunda Daudi* and *Mark Kule* who acquired the same from the 1st Respondent.

9. That it is therefore apparent that the only way to effectually and effectively adjudicate over Civil Suit No. 08 of 2025 and avoid multiplicity of proceedings is to actually add the intended parties as Defendants so that they can ably aid court in resolving and disposing of this suit. Counsel prayed that the instant Application be granted to add or join *Bakunda Matthew, Kyetunda Daudi* and *Mark Kule* as Defendants in Civil Suit No. 08 of 2025 so as to curtail the proliferation of proceedings on the same subject matter and have this matter resolved effectively to its logical conclusion.

#### **1 st Respondent's Submissions**:

10. Learned Counsel for the 1st Respondent submitted that the discretion to allow amendments under **Order 6 Rule 19** of the **Civil Procedure Rules** must be exercised judiciously, considering the interests of justice and rights of the parties involved. That **Order 11A Rule 1 Sub rule (6)** of the **Civil Procedure Rules SI 71-1 as amended, 2019**, provides that if the plaintiff does not take out summons for directions in accordance with sub rules (1) or (6), the suit shall abate. That where a suit has abated, no application shall be made to the Court in the suit, except an application to set aside the abatement. That any application for


amendment in an abated suit is not maintainable. It is on this background that it was prayed that the suit be dismissed with costs. That the Plaintiff cannot amend the Plaint in an abated suit unless the abatement has first been set aside or has been dealt with.

11. That once a suit has abated, it ceases to exist in law for procedural purposes, until an order is made setting aside that abatement, no further interlocutory stepsincluding an amendment of pleadings-can lawfully be taken. Counsel cited the case of **Nakiryowa & Anor vs. Sserugo & Anor [2018] UGHCLD 50**, where the Court held that "an application to amend cannot be entertained in a suit that has abated unless the abatement is first set aside and that such application is a nullity." Further, that in the case of **John Semakula vs. Richard Musoke HCCS No. 51 of 2014**, the Court refused to consider a motion filed in a suit that had abated, stating that *"abatement renders all pending applications incompetent until set aside."* Therefore, that the Plaintiff cannot lawfully amend the Plaint to add new parties where the suit has already abated and that this Application is accordingly premature, procedurally irregular, and legally untenable. Counsel prayed that this Application should be accordingly dismissed with costs.


12. Counsel further submitted that, the proposed amendment is also not legally tenable and would not serve the interest of justice. That **Order 1 Rule 10(2)** of the **Civil Procedure Rules SI 71-1** is to the effect that *"The court may at any stage of the proceedings... add the name of any person who ought to have been joined, either as plaintiff or defendant..."* and that **Order 6 Rule 19** of the **Civil**

**Procedure Rules SI 71-1** allows amendment where *"it is necessary for the purpose of determining the real question in controversy."* However, that both provisions presuppose that the suit is properly before the court and do not apply where a suit has abated or become void.

13. That even if the suit was still alive, the Application to add new parties would fail because the addition of *Bakunda Matthew*, *Kyetunda Daudi*, and *Mark Kule* introduces a new cause of action and shifts the focus of the case. That such amendments are not permitted under the guise of procedural correction. Counsel cited the case of **Muwolooza & Brothers Ltd vs. N. Shah & Co Ltd|2011] UGSC 11**, where the Supreme Court held that "an amendment should not introduce a completely new and inconsistent cause of action." That, the addition of the above-named defendants would automatically prejudice the 1st Respondent because it would require him to file a fresh written statement of defence, which incurs costs and is a waste of the court's time since the matter had already abated.


- 14. That the proposed amendment introduces a new cause of action by alleging that the 1st Respondent sold the land to the 10th , 11th and 12th Respondents which is a departure from the original plaint and change of cause of action where they had earlier stated that the 1st Respondent sold the suit land to the 2nd to 9th Respondents (Defendants) and in the proposed amendment under paragraph 4(d), the Applicant claims that the 10th, 11th and 12th Defendants are the ones who sold the suit land to the 2nd to 9th Respondents / Defendants and not the 1st Respondent which is a clear change of the cause of action. - 15. Further, that the Plaintiffs have not provided any justification for failing to join these parties earlier. That joining them now would require new pleadings, adjournments, and delays, prejudicing the current Defendants/Respondents. Counsel cited the case of **Kigozi vs. Barclays Bank (U) Ltd (2001] UGCA 6**, where the Court of Appeal emphasized that amendment Applications must be made timely, and where there is unreasonable delay, the court may reject them to avoid prejudice. That in the case of **Kasirye Byaruhanga & Co Advocates vs. Uganda Development Bank S. C. C. A No. 2 of 1997**, it was held that justice must apply to both parties. That where an amendment would cause injustice to the opposite party, the court should not grant it. With that, Counsel prayed that this Application should be dismissed with costs.


#### **2 nd to 9th Respondents' submissions**:

- 16. Learned Counsel for the 2nd to 9th Respondents also submitted that Civil Suit No. 8 of 2025 abated by operation of the law under **Order 11A Rule 1** of the Civil Procedure Rules when the Plaintiffs failed to take out summons for directions with 28 days as required. Counsel invited this Court to adopt the approach taken in **Francis Xavier Ssempira vs. Aline Nabami Kaboy Civil Suit No. 877 of 2021** and hence dismiss this application and strike out the suit from which it arises all with costs. Secondly, that the people the Applicants seek to be added as parties to the suit were not made parties to this Application and cannot be condemned un heard in contravention of their non derogable right to fair hearing provided for under Article 28 of the constitution. - 17. Counsel cited the case **of Samson Sempasa vs. PK Sengendo HCMA No. 577 of 2013**, to the effect that, the purpose of permitting a party to be added in a suit is to enable court effectually and completely deal with a matters in controversy and to avoid multiplicity of suits. That it was also stated in that case that for an application to add a party to the suit to be allowed, it must be proved that the party sought to be added must be necessary for determination of issues in controversy. That in the instant case, the Respondents claim distinct portions of the suit land and none of the parties sought to be added claim a single piece of

 land out of the suit land. That the issues as to who owns the suit land between the parties to this application can be determined without the presence of the people sought to be added. Counsel prayed that this Application be rejected and if this Court is inclined to allow this application, it should be allowed with costs payable by the Applicants before the amendment is allowed.

## **The Applicant's Rejoinder**:

18. The Applicants did not file a rejoinder to address the points of law raised by the Respondents regarding abatement.

## **Issues**:

19. In my view, this Application raises two issues, namely; -

- **(1) Whether Civil Suit No. 08 of 2025 abated on account of failure to take out summons for directions.** - **(2) Whether the Applicants should be allowed to amend the Plaint to add Bakunda** *Matthew***,** *Kyetunda Daudi***, and** *Mark Kule* **as Defendants.**

## **CONSIDERATION BY COURT**:

**Issue 1**: **Whether Civil Suit No. 08 of 2025 abated on account of failure to take out summons for directions.**


20.**Order 11A Rule 2** of the **Civil Procedure Rules** states thus; *"Where a suit has been instituted by way of a plaint, the plaintiff shall take out Summons for Directions within 28 days from the date of the last reply or rejoinder referred to in Rule 18 (5) of Order VIII of these Rules.* **"Rule 6** of the above order adds thus: *"If the plaintiff does not take out a Summons for Direction in accordance with sub rules (2) or (6), the suit shall abate."*

21. There has been a debate in legal discourse as to whether the failure to take out summons for directions abates the suit automatically. Courts have offered guidance on the application of the said order in different decisions. In **Geoffrey Waswa vs. Amy for Africa Ltd & 2others, Civil Suit No. 127 of 2020**, a similar point of law was raised and the *Hon. Lady Justice Florence Nakachwa* (as she then was) in her ruling gave a contextual application of the verb "shall" in legislative sentences and she stated thus:

*"This brings court to a consideration of the principles governing the use of shall in a legislative sentence. In its ordinary significance, shall is a word of command. It is a word which should normally be given compulsory meaning because it is intended to denote an obligation. The auxiliary verb shall should be used only where a person is commanded to do something. However, shall is sometimes intended to be directory only. In that case, it is equivalent to May*


*and would be construed as merely permissive to carry out the legislative intention. This usually applies in cases where no right or benefit accrues to any one where no public or private right is merely impaired by its interpretation as directory."[Added emphasis].*

22. In addition to the above the *Hon. Lady Justice Olive Kazaarwe Mukwaya* in **Kagimu Moses Gava & 7 other vs. Sekatawa Muhammad and 11 others, Civil Appeal No.10 25 of 2020** arising from Civil Suit No. 145 of 2020 while interpreting the implications of Order X1A Rules 2 and 6 stated at page 8 thus:

*"It is this court's opinion that the intention of the framers of Order XIA rule 1 of the Civil Procedure Amendment Rules 2019 was to mitigate the delays and inefficiencies brought on by the actions of officers of court and the parties in civil proceedings. In order that these rules achieve the desired objective, a holistic and judicious approach to their application should be adopted by the courts".*

23. I have also previously held in **Gama Distillers Ltd vs. Bikanza Ezra, Civil Suit No. 0061 of 2021** regarding Order XIA thus;

*"From the reading of the entire order X1A of the Civil Procedure (Amendment) Rules of 2019, what comes to my mind is that the order was intended to speed up trials by curtailing unnecessary delays. It was not*


*intended to be used as a sword against parties' live claims by strangling all under the guise that the summons for directions procedure was not strictly adhered to. Each case should be considered on its own merits and peculiarities. It is my humble view that the application of the said order should not be a universal one but should be applied on a case by case basis. Articles 28 and 44 of [the Constitution](https://ulii.org/akn/ug/act/statute/1995/constitution) stress the right to a fair hearing which includes availing parties an opportunity to present their cases and a decision is made after taking into account the views of either party to a suit. In some circumstances it would not serve any great purpose to have the suit abated under Order X1A Rules 2 and 6 yet later parties can file the same claims."*

24. In the case of **Seruwu Jude vs. Swangz Avenue Limited HC Civil Appeal No. 0039 of 2021**, Hon. Justice Stephen Mubiru in making a comparison between Order 17 rule 5 (l) as amended and Order 1 IA rule, stated that*: "Under Order 17 rule 5 (l) as amended, abatement of the suit takes place automatically when no application is made or step taken by either party for a period of six months after the mandatory scheduling conference, with a view to proceeding with the suit. This type of abatement occurs of its own force by inaction and the passage time. No specific order is required to be made. In contrast, according to Order 11A rule 6, if the Plaintiff does not take out Summons for Directions*


*in accordance with the rules, the suit 'shall abate' The word 'shall' is not always obligatory, imperative or mandatory. Depending on the context, it can also mean may... In the former, Court has no discretion while in the latter the Court exercises discretion. The automatic abatement of suits under Order 11A rule 1(6) when invoked and applied automatically will be counterproductive in light of the fact that under Order 11A rule 1 (7), where a suit has abated the Plaintiff may, subject to the law of limitation, file a fresh suit. The court will then be inundated with repeat suits over the same subject matter.*

- 25. In the instant case, the Respondents argue strongly that Civil Suit No. 08 of 2025 abated automatically on 15th April 2025, due to the Applicants' failure to take out summons for directions within the stipulated 28 days. They cite Order 11A Rule 1 Sub-rule (6) of the Civil Procedure Rules SI 71-1 as amended, 2019, and case law such as **Nakiryowa & Anor vs. Sserugo & Anor [2018] UGHCLD 50** and **John Semakula vs. Richard Musoke HCCS No. 51 of 2014**. This position, if strictly applied, would render the current application for amendment incompetent. - 26. On the other hand, the Applicants' Counsel relied on **Section 33** (now 37) of the **Judicature Act Cap 16**, which emphasizes the complete and final determination of all matters in controversy and the avoidance of multiplicity of legal


proceedings. They also invoked **Section 98** of **The Civil Procedure Act, cap. 282**, which grants inherent powers to the court to make orders necessary for the ends of justice. Moreover, the Civil Procedure Rules were made under the Civil Procedure Act, and should be applied in conformity with the provisions of the Civil Procedure Act as well as other Acts including the Judicature Act. **Order 1 Rule 10(2)** and **Order 1 Rule 13** of the **Civil Procedure Rules**, allow for the addition of parties at any stage of the proceedings when necessary to effectually and completely adjudicate upon the questions involved.

27. I have observed that in this case, all the Respondents filed their WSDs on 3rd March 2025 which per the Affidavit of Balinda Lucky were served on the Applicants on 5th March 2025; except that as for the 1st Respondent he filed his WSD on 12th March 2025 but there is no affidavit of service on record to prove that the WSD of the 1st Respondent was ever served on the Applicants. In the instant case, **Order 1 IA rule 1(6)**, if construed in a mandatory way would mean that, on 12th March 2025 when the 1st Respondent filed his WSD to the Applicants and no other pleading was filed, the 28 days started running for taking out the Summons for directions and these days elapsed on or around 9th April 2025 and therefore the suit abated then. However, there is no evidence that the WSD of the 1st Respondent which was the last reply, was ever served on the


**16 |** P a g e

Applicants, for them to know that the last reply in the proceedings had been filed, in order to trigger the taking out of Summons for Directions. Instead, the Respondents through their lawyers *Ms. Ahabwe James & Co Advocates* then wrote a letter to court dated 13th May 2025, filed on 19th May 2025 contending that the Respondents had filed and served the Applicants on 5th March, 2025 and relied on the affidavit of service of *Balinda Lucky*, asking that the suit be subjected to abatement, on the basis that the 28 days required for taking out summons for directions had lapsed. The said letter was silent on whether the WSD of the 1st Respondent had also been filed and served on the Applicants. Surely, if the WSD of the 1 st Respondent was filed subsequently on 12th March 2025, it could not have been among those served on 5th March 2025. In these circumstances, I am unable to conclude that the Applicants' suit abated on the ground that the Applicants failed to take out Summons for Directions within 28 days after the filing of the last reply in the pleadings. Accordingly, this point of law fails and is overruled.

**Issue 2**: **Whether the Applicants should be allowed to amend the Plaint to add Bakunda Matthew, Kyetunda Daudi, and Mark Kule as Defendants.**


- 28. The Applicants are seeking to add new Defendants (*Bakunda Matthew, Kyetunda Daudi,* and *Mark Kule*) because it has "been eventually established that the 2nd to 8 th Respondents acquired the land in dispute from *Bakunda Matthew, Kyetunda Daudi* and *Mark Kule* who acquired the same from the 1st Respondent." This suggests that the proposed Defendants are crucial to resolving the central dispute over land ownership and avoiding multiplicity of suits, which aligns with the purpose of **Order 1 Rule 10(2)** and **Section 37** of the **Judicature Act**. - 29. While the Respondents argue that adding these parties introduces a new cause of action or shifts the focus, the Applicants' explanation suggests that the new parties are integral to understanding the chain of transactions that led to the current dispute. The case of **Muwolooza & Brothers Ltd vs. N. Shah & Co Ltd [2011] UGSC 11** emphasizes that an amendment should not introduce a completely new and inconsistent cause of action. However, here, it appears the amendment clarifies the existing cause of action by bringing in all necessary parties involved in the alleged unlawful sale of the suit land. - 30. I am satisfied that the Applicants have adequately demonstrated that *Bakunda Matthew, Kyetunda Daudi,* and *Mark Kule* have a significant interest in the suit and that their presence is necessary to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit.


## **Conclusion**:

The Application succeeds with the following Orders; -

- **(1) The Applicants are hereby granted leave to amend the Plaint in Civil Suit No. 08 of 2025 to add Bakunda Matthew, Kyetunda Daudi, and Mark Kule as Defendants.** - **(2) The Applicants shall file an amended Plaint to that effect within 15 days from the date of delivery of this Ruling.** - **(3) Costs of this Application shall be in the cause.**

I so Order.

**Dated at Fort Portal this 1st day of July 2025**


Vincent Wagona

**High Court Judge**

**FORTPORTAL**

**Ruling delivered on 14th July 2025.**