Mugenyi v Nasiiwa (Family Misc Application 1055 of 2022) [2023] UGHCFD 150 (24 August 2023)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **FAMILY DIVISION**

# **MISCELLANEOUS APPLICATION NO. 1055 OF 2022 (ARISING FROM DIVORCE CAUSE NO. 119 OF 2021)**

### **MUGENYI HATIM ADAM :::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**NASIIWA SHAMIIRAH KAGOLO :::::::::::::::::::::::::: RESPONDENT**

#### **BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

#### **RULING**

#### **1. Introduction**

The applicant brought this application by Chamber Summons under Section 98 of the Civil Procedure Act, Cap. 71 and Order 6 rule 19 & 31 of the Civil Procedure Rules SI-71-1, seeking for orders that;

- a) The Applicant be given leave to amend his pleadings in Divorce Cause No. 119 of 2021. - b) Costs of the application be provided for.

### **2. The Application**

The grounds of the application are set out in the Notice of Motion and in an affidavit sworn in support of the application by Mugenyi Hatim Adam, the applicant. Briefly, the grounds are that the respondent filed Divorce Cause No. 119 of 2021 seeking among others that the marriage between the applicant and respondent be dissolved. The applicant filed a reply to Divorce Cause No. 119 of challenging the existence of the said marriage,


however, the applicant's former lawyers did not file a cross petition for nullity of the said marriage despite the overwhelming evidence given to them challenging the legality of the said marriage but rather just denied its existence. That there is need to amend the respondents answer to the petition so that the real question in controversy between the parties is determined and justice to be administered without undue regard to technicalities. The Respondent will not suffer any injustice, since the amended reply to the petition will avoid multiplicity of proceedings and finally that the application has been brought in good faith and it is in the interest of justice that the same be granted.

- 2.1. The Respondent opposed this application through an affidavit affirmed by Nassiwa Shamiirah Kagolo, who stated that upon hearing of this application a preliminary objection shall be raised to the effect that the Application is incurably defective and shall seek that the same is dismissed with costs. - 2.2. The Respondent deposed that the applicant admits on oath to have been married to the respondent as far back as 2011. She also stated that following Miscellaneous Cause No.041 of 2021 filed in the Magistrate's Court, it was the finding of the trial magistrate that the parties in this application were married and that the applicant has never challenged the judgment of the lower court. - 2.3. The Respondent further averred that the applicant as an afterthought pleads a nullity of the marriage at the High Court and that contradicting facts by the applicant amount to fraud on court, illegality and an abuse of Court process. That as such the applicant already raised issues for nullity of the marriage in his reply to the Petition filed in this court hence the same


amounts to abuse of court process. Finally that this application is tainted with fraud, illegality and falsehoods and does not raise sufficient grounds to warrant grant of orders sought and should be dismissed with costs.

2.4. The applicant did not file an affidavit in rejoinder.

# **2.5. Representation and Hearing**

This application was filed on behalf of the applicant by Counsel Kinene Mubarak of Kigenyi-Opira & Co. Advocates/Solicitors. The Application was filed together with written submissions. While the Respondent was represented by Charity Itungo Mastiko of Enoth Mugabi Advocates & Solicitors.

# **3.0 Issues for Determination by the Court**

- 1. Does the intended amendment comply with the principles governing amendments? - 2. What remedies are available to the applicant?

### **4.0 Resolution of this application by Court**

4.1 The position of the law regarding an application for leave to amend is set out under Order 6 Rule 19 of the Civil Procedure Rules, SI-71-1 which provides as follows;

**"The Court** *may* **at any stage of the pleadings, allow either party to amend in such manner and on such terms as may be just and such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."**

4.2 The considerations for grant of an application for leave to amend were set out in the case of **Gaso Transport Bus Service Ltd –VS- Martin Adala Obene, Supreme Court Civil Appeal**


**No. 4 of 1994,** the Court laid down the following principles to be taken into account before allowing the amendment:

- (a)The amendment must not work as an injustice to the other side. - (b)Multiplicity of pleadings should be avoided as far as possible and amendments which avoid multiplicity of suits should be allowed. - (c) An application which is made malafide should not be allowed where it is expressly or impliedly prohibited by the law. - (d)No amendments should be allowed where it is expressly, or impliedly prohibited by any law (e.g Limitation of actions). - 4.3 The instant application is premised on the grounds that the former advocates of the applicant did not file a cross petition for nullity of the said marriage despite the overwhelming evidence given to them challenging the legality of the said marriage but rather just denied its existence. Further, the applicant contends that there is need to amend the Respondent's answer to the petition so that the real question in controversy between the parties is determined and justice is administered without undue regard technicalities. - 4.4 On the other hand, it was argued for the Respondent that the Applicant had already indicated about their marriage being a nullity in his Reply/answer for the petition under paragraph 8 wherein he stated that, "*in reply to paragraphs 20 and 21 of the petition, the respondent stated that there is no marriage to be dissolved since the parties are not married and the respondent has already walked his way from the unhealthy and abusive cohabitation".* - 4.5 The Respondent further relied on the Applicant's reply/answer to the petition in particular paragraphs 3 and 4 therein which


state that; *the respondent has never contracted any marriage with the petitioner and the contents therein are denied in toto and the petitioner shall be put to strict proof of the same and finally that the respondent reiterates that there has never been a legally recognised marriage between him and the petitioner and as such there is nothing to divorce thus the instant petition is misconceived and an abuse of the court process".*

- 4.6 In view of the foregoing arguments by both counsel I am in position to reach a finding that the application before this court requires the applicant to give sufficient reasons as to why leave to amend should be granted. - 4.7 I agree with the Respondent referring to paragraphs 3, 4 and 8 of the reply to the petition by the applicant, I find that there is no sufficient reason as to why leave should be granted to amend the reply to the petition by filing a cross petition for the reasons stated therein. Since the applicant's reply to the petition already reflected as such.

# **5.0 Conclusion**

In light of the above findings, therefore, this application is devoid of merit and is accordingly dismissed with costs to the Respondent.

I so Order.

*Dated, signed and delivered by email this 24th August, 2023*