Nahabo v Mugenyi and Another (Miscellaneous Application 1056 of 2022) [2023] UGHCFD 162 (16 June 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA FAMILY DIVISION MISCELLANEOUS APPLICATION NO. 1056 OF 2022**

**(ARISING OUT TO DIVORCE CAUSE NO. 119 OF 2021)**

# **NAHABO ASHA :::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

**-VS-**

#### **1. MUGENYI HATIM ADAM**

**2. NASIIWA SHAMIIRAH KAGOLO::::::::::::::::::::: RESPONDENTS**

# **RULING BY HON. LADY JUSTICE CELIA NAGAWA**

#### **1. The Application.**

- 1.1 This application is brought to Court by way of Notice of Motion, under Section 33 of the Judicature Act, Cap. 13, Section 98 of the Civil Procedure Act, Cap. 71, Order 1 rules 10 (2), 13 and Order 52 rules 1 and 3 of the Civil Procedure Rules, Statutory Instrument No. 71 -1 - 1.2 This application is seeking the following orders; that:- - (a) The applicant Nahabo Asha be added as an interested party to Divorce Cause No. 119 of 2021. - (b) Costs of the application be provided for. - 1.3 This application is based on the following grounds; that: - (a)The applicant is legally married to the 1st Respondent and she personally owns one of the properties listed as matrimonial property.


- (b)The properties listed as matrimonial properties were jointly purchased, developed and owned by the applicant and 1st respondent. - (c) The applicant claims an interest in the matrimonial properties listed in Divorce cause No. 119 of 2021 as Coowner and matrimonial property. - (d)Any outcome of Divorce Cause No. 119 of 2021 will directly affect the applicant. - (e) It is just and equitable that the applicant be added as an interested party in Divorce Cause No. 119 of 2021 as her proprietary rights in the suit property therein may be affected by the orders sought by the 1st respondent. - (f) The application present before court is necessary as it will enable court effectually and completely adjudicate upon and settle all questions involved concerning the matrimonial properties in the Divorce cause. - (g) The application has been brought without any delay.

#### **2.0 Representation**

**2.1** The application was filed on behalf of the Applicant by Stabit Advocates and the 2nd Respondent was represented by Ms. Charity Itungo Matsiko from Enock Mugabi Advocates and Solicitors, Kampala. The 1st Respondent, a husband to both the applicant and the 2nd Respondent was not represented and did not file an affidavit in reply.

# **2.2 The Affidavit.**

This application is supported by the affidavit sworn by the applicant, Nahabo Asha on 4th November, 2022 containing 20 paragraphs which this court has taken consideration thereof.


#### **3. The Respondents' case.**

- 3.1. The 2nd respondent filed in Court an affidavit in reply to this application and rebuttal to the affidavit in support of this application, sworn on 22nd February, 2023. This affidavit in reply contains affidavit evidence in opposition to this application. - 3.2 As earlier indicated in this ruling, the 1st Respondent did not file any affidavit in reply. He was not represented.

#### **4. Resolution of this Application by Court.**

- 4.1. Counsel for the applicant filed in Court his written submissions. Counsel for the 2nd respondent at the time of writing this ruling had not filed in court her written submissions much as she filed an affidavit in reply. - 4.2. I perused the applicant's written submissions. The pleadings of the both parties and studied the court record. The record has assisted me in determination of this matter. - 4.3. This application is brought among other laws, under Order 1 rule 10 (2) of the Civil Procedure Rules (supra). Order 1 Rules 10 (2) provides;

**"The Court may at any stage of the proceedings either upon or without the application of either party, and or such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as a plaintiff or defendant, be struck out and that the name of any person who ought to have been joined, whether on plaintiff or defendant or whose presence before Court may be necessary in order to enable the**


# **Court effectually and completely to adjudicate upon and settle all questions involved in this suit, be added."**

From the aboveqouated authority, the question to be answered by this Court is: Should the name of person named in this application be added to this suit as a respondent?

- 4.3. In this application, the person named therein to be added as a 2nd respondent to the suit is the applicant. The applicant expressed interest in suing the respondents to enable her defend the petition in regard to the matrimonial property mentioned as property by the Petitioner and the Respondent in Divorce Cause No. 119 of 2021. Other than the matrimonial property, the applicant has not mentioned in her application whether she intends to cross petition and what her grounds in this Divorce Cause could be. She literally has no grounds to Divorce. This is purely a Divorce Petition, I am sure the applicant was never married to the 2nd Respondent in this application nor has she any grounds for Divorce. Literally no cause of action against the 2nd Respondent especially. Naturally, a Divorce Cause entails more than matrimonial property. - 4.4 From the grounds of this instant application and its affidavit in support, the said person intended to be added to the main suit (Divorce Cause) as Respondent could as well be called as a witness by the Respondent to adduce evidence in defence of the said cause. - 4.5. Wherefore in view of all analysis done in items 4.3 and 4.4 above, the question which was framed by Court as to whether the said person should be added to the main suit as 2nd respondent is answered in the negative.


# **5**. **Conclusion**

- 5.1. In final result of this application, the affidavits by both parties, the submissions by both counsel for the applicant, my entire examination and analysis of this application hereinabove in this ruling, I hereby hold that this application lacks merit. - 5.2. Therefore, this application is dismissed with no orders to costs.

# *Dated, signed and delivered this 16th day of June, 2023.*

**……………………………………… CELIA NAGAWA AG. JUDGE**