Nathan Kashaija v Beatrice Kahangi (Administratrix of the estate of the late Emmanuel Kahangi) (Miscellaneous Application 458 of 2023) [2024] UGHC 19 (29 January 2024)


## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-LD-MA-0458-2023 (ARISING FROM HCT-05-LD-CS-0139-2022)

NATHAN KASHAIJA :::::::::::::::::::::::::::::::::::

### **VERSUS**

## **BEATRICE KAHANGI (Administratrix of the** Estate of the late Emmanuel Kahangi) ::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Nshimye Allan Paul M.

#### **RULING**

### REPRESENTATION

$\mathsf{S}$

The Applicant was represented by Advocate Denis Kwizera from M/s Kwizera & 15 Co Advocates while the Respondent was represented by Advocate Kwikiriza Ronald from M/s Kaganzi & Co Advocates.

### **BACKGROUND**

The Applicant instituted this application under Order 6 Rule 19 and Order 52 20 Rules 1 and 2 of the Civil Procedure Rules, seeking an order to granting him leave to amend his plaint.

#### **GROUNDS**

- The grounds of the application as set out in the notice of motion are; 25 - 1. The Applicant needs to amend his plaint and include necessary information and facts that were omitted by the Applicant's former lawyer. - 2. The amendment is necessary for purposes of determining the real questions in controversy between the parties. - 3. It is in the interest of justice that leave to amend the Applicant's plaint is 30 granted.

Page 1 of 4

The application is supponed by an affidavit deponed by the Applieant, and is opposed through an affidavit deponed by the Respondent.

## suBMrsslCINs

q, This Court gave parties time frames within which to file their respective written submission. The Applicant filed his submissions on 1#h lrecember, 2O23, nine days beyond the given deadline of Sth December, 2A23. The Respondent had to file hers hy 22"d December, a023 but did not comply.

# 10 Applieant'ssubmissions

It was submitted for the Applicant that he first instructed M/s Ampurire Associated Advocates to file a plaint for him before realising that the said lawyers were not giving him adequate representation, he withdrew instructions from them and instructed M/s Kwizera & Co Advocates. That upon perusing the 1s plaint, the new advocates realised that some necessary information was omitted and thereby advised for the institution of this application. Counsel relied on ASSA ABLOY tul tTD VS JOHN MBOIZI MISC APPIICATION NO.78/t oF 2021 for the holding that amendments to pleadings should be allowed if they do not cause injustice to the other side. Counsel also cited SPACE MANUFACTURING 20 UGANDA TIMITED VS EQUITAX UGANDA LIMITED & OTHERS MISC APPLICATION NO.959l2o,m fof the poiiticn thit l6ave to imEnd will bb gianted to enable the real questions in issue be determined and that the application should not be made in a malafide manner.

25 The respondent did not file any submissions on court record.

#### DETERMINATION

I have perused the application and the affidavits deponed by both parties. I have also eonsidered thc subrnissisns filed by thc Applieant"

lh principle this CoUrt is empower0d by ORDER 6 RUIE t9 OF THE Clvlt PROCEDURE RULES Sl 71-1to allow any litigant to amend their pleadings under ce'rtain circumstances stated in the law as cited herein below.

Order 6 Rule 19 of the Civil Procedure Rules States:

Zof 4

ln principle this Court is empowered by ORDER 6 RULE 19 OF THE CIVIL PROCEDURE RULES Sl 71-1 to allow any litigant to amend their pleadings under certain circumstances stated in the law as cited herein below.

Order 6 Rule 19 of the Civil Procedure Rules States:

1,0

L5

## "19. Amendment of pleadings.

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

The Supreme Court has in GASO TRANSPORT SERVICES (BUS) LTD V MARTIN ADALLA OBENE [1990-1994] EA 88 laid down four considerations for a court to consider when determining an application for an amendment of pleadings. Hon Justice Tsekooko, JSC stated them as follows:-

- 1. The amendment should not work injustice to the other side. An injury which can be compensated by award of costs is not treated as an injustice. - 2. Multiplicity of proceedings should be avoided as far as possible and all amendments which avoid such multiplicity should be allowed. - 3. An application made malafide should not be granted. - 4. No amendment should be allowed where it is expressly or impliedly prohibited by law, e.g. limitation of actions. - 25 30 The evidence on court record shows that the proposed amendment that is attached to the affidavit in support as annexture A has the cause of action itemised in paragraphs 4 and 5. A perusal shows that it is still on the same subject and cause of action as is listed in paragraphs 3 and 4 of the plaint on record, in the sense that the cause of action is hinged on an agreement dated 10th July 1984 between the plaintiff and the Late Emmanuel Kahangi.

The proposed amendment as can be deduced by the evidence in annexture A of the affidavit in reply, is an addition of more particulars relating to the transaction dated 10th July 1984, which includes the agreement and alleged written 3s acknowledgments of payments

<sup>P</sup> 3of4

thE amehdmEnt is vexatioui and irn abuse of eourt process (See Parigriph 6 of the affidavit in reply)

ln my analysis I find that attaching the purchase agreement of 10th July 1984 that 5 is alleged to be at the centre of the controversy will help court determine the real question in eontrovci-sy between the parties, whieh is in tanelcm with the spirit of the law in Order 6 Rule 19 of the Civil Procedure Rules Sl 7L-1.

ln my opinion the amendment will Rot cause an injustice to the respondent siiiee 10 the agreement of 10th July 1984 had already been mentioned in the plaint. I also don't find the application to be malafide or barred by law, in any case it can help with a reduction of multiplicity of proceedings.

In conelusion, I allow rhe applieation and make the following orders;

- 1. The applicant willfile the amended plaint in court within l0days from the delivery of this ruling. - 2. The amended plaint once filed will be served on the respondent within 15 days from ttre date it is filed in court. - 3. The respondent will pay the applicants costs of this application.

NSHIMYE ALLAN PAUL M.

JUDGE 29-AL-2424

25