Saudah Namukwaya and Others v Mawula Stephen and Others (Miscellaneous Application No. 113 of 2023) [2025] UGHC 364 (5 May 2025)

## **THE REPUBLIC OF UGANDA**

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

# **MISCELLANEOUS APPLICATION NO. 113 OF 2023**

## **ARISING OUT OF CIVIL SUIT NO. 008 OF 2023**

**1. SAUDAH NAMUKWAYA (Suing through Kwamira Kassim a Donee of Powers of Attorney)**


#### **Background**

This Application is brought under Order 6 Rules 19 and 31 of the Civil Procedure Rules seeking leave of court to amend the Plaint in Civil Suit No.008 of 2023 and costs of the suit.

The grounds for this Application were laid out in the Affidavit in support of this Application but are briefly that the Applicants who are the Plaintiffs in Civil Suit No. 008 of 2023 wish to amend the Plaint to correct the fact that the late Kirabira's matrimonial home and the family's graveyard are situated on Block 13 Plot 13 and not Block 13 Plot 34 as stated in the Plaint. They further wish to clarify that the Plaintiffs and the children of the late Kirabira are cultivating and are in possession of Block 13 Plot 34 which is the suit land.

The 1st 2 nd and 3rd Respondents filed their Affidavit in reply wherein they opposed this Application and prayed that the Court should dismiss it with costs.

The parties raised one issue which I will adopt.


1. Whether the Applicant should be granted leave to file the amended Plaint in Civil Suit No. 008 of 2023.

# **Representation**

The Applicants were represented by MS Manzi Mutamba Advocates and Solicitors while the 1st, 2nd and 3rd Respondents were represented by Sowali Katamba and Co. Advocates.

# **Determination of the Application**

# **Issue 1: Whether the Applicant should be granted leave to file the amended Plaint in Civil Suit No. 008 of 2023**

Counsel for the Applicants submitted that the Applicants filed Civil Suit No. 008 of 2023 seeking declarations that the suit land comprised in Bulemezi Block 13 Plot 34 is and forms part of the estate of the late Moses Kirabira. Counsel further submitted that a survey was conducted and it was revealed that the late Moses Kirabira owned Block 13 Plot 34 and Block 13 Plot 13 which plots are next to each other. He further stated that it was mistakenly stated that the family's ancestral home and the ancestral burial grounds are on Plot 34 whereas they are situated on the neighbouring Plot 13.

Counsel for the Respondents submitted that the Application before this Court is mala fide brought with a view of defeating the Respondents' defence and evidence which is already on the Court record. Counsel argued that the parties have since filed their witness statements and trial bundles before this Honourable Court and the issue of the purported family graveyards and matrimonial house being on the suit land were comprehensively covered by both the Applicants and Respondents.

In rejoinder, counsel for the Applicants submitted that the Respondents' argument that the Plaint cannot be amended because they filed their Written Statement of Defence and witness statements is not tenable in law because the court is clothed with jurisdiction to allow either party at any stage of the proceedings to amend their pleadings. Counsel also submitted that the cause of action remains the same being that of the proprietorship and ownership of Plot 34.

I have carefully read and considered the parties' submissions in my ruling. The law on the amendment of pleadings is governed by **Order 6 Rule 19 of the Civil Procedure Rules** which states that;

*"The court may at any stage of the proceedings allow either party to alter or amend his or her pleadings in such a 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"*

*(*Emphasis is mine)

In **Gaso Transport Services (Bus) Ltd V Martin Adala Obene Supreme Court Civil Appeal No.4 of 1994**, Tsekeko JSC laid down the following principles which govern the exercise of discretion in allowing amendments;

- *i) The amendment should not work as an injustice to the other side. An injury that can be compensated for by way of costs is not treated as an injustice.* - *ii) Multiplicity of proceedings should be avoided as far as possible and all amendments, which avoid such multiplicity should be allowed.* - *iii)An application which is made malafide should not be granted.* - *iv) No amendment should be allowed where it is expressly or impliedly prohibited by any law.*

This Court may allow amendments of pleadings before trial or even during trial as long as the amendment shall not prejudice the other party and cause an injustice and as long as the other party can be compensated by costs. **See Gaso Transport Services V Martin Adala Obene Supra.**

The background of this case is that the Applicants are the Plaintiffs in Civil Suit No. 008 of 2023 who filed that suit seeking several orders in respect to the land comprised in Bulemezi Block 13 Plot 34 which include the cancellation of the 3 rd Respondent's name as proprietor of the said land from the certificate of title and consequently a declaration that the suit land forms part of the estate of the late Moses Kirabira. Therefore, the cause of action in the instant case is the recovery of the land comprised in Bulemezi Block 13 Plot 34.

The Applicants are seeking to amend their Plaint to omit certain facts that were forming part of their cause of action. I have taken note that paragraphs 5 (d), (e) and (g) of the Plaint are the ones that the Applicants wish to amend. The above paragraphs state;

*d) That from the early 1950s when the late Kirabira acquired the suit land, he occupied the same uncontested, established his matrimonial home, a graveyard for his family, and carried out both domestic and commercial gardening amongst others.*


*e) That amongst the persons who have over time been buried on the suit land are;*

*i) Yuniya Nalukenge (mother of late Kirabira Moses) buried around 1988*

*ii) Nanyanzi Miriam*

*iii) Serugaye James (Son of the late Kirabira)*

*iv) Kuryakubeera Michael (Son to Kirabira's Brother)*

*v) Nanyanzi Saudha (Sister to Kirabira)*

*vi) Nakabuga Berna (one of the wives of the late Kirabira)*

*g) That the family and children of the late Kirabira continued to occupy and make full use of the suit land even after his demise.*

Under paragraph 4 of the Affidavit in support of this Application, the Applicants state that after the main suit was instituted, they instructed M/S Land Mark Consult Surveyors Ltd to open boundaries for the Bulemezi Block 13 Plot 34 and Plot 13 and the findings established that the ancestral home of the Applicants and the graveyards are situated on Plot 13 and not Plot 34. I have looked at the survey report prepared by M/S Land Mark Consult Surveyors Ltd and indeed it shows that the graveyards are located on Plot 13 and not Plot 34.

I am convinced that the emergence of this new information is important in the proper adjudication of this case. I find that this is a sufficient reason to move the court to grant leave to the Applicants to amend their Plaint to reflect the proper and precise facts indicating what is on the suit land. I therefore do not believe that this application is malafide as argued by the Respondents. I equally do not think that this amendment is an attempt to change the cause of action because as already stated above, the cause of action in this case is the recovery of the suit land. The amendment is only seeking to clarify that the graveyards and matrimonial home are not located on the suit land but on Plot 13, the neighbouring Plot.

Finally, I am not equally convinced by Counsel for the Respondents' argument that this intended amendment is trying to defeat the defence raised by the Defendants. In fact, I believe that the correction of facts laid out in the Plaint settles the question of what is on the suit land. This saves the court and the parties time in determining whether or not graveyards or a matrimonial home are situated on the suit land.


The Applicants in the proposed amended Plaint amended paragraphs 5 (d) and (f) and chose to omit (e) of the original plaint as stated below;

*d) That from the early 1950s when the late Kirabira acquired the suit land, he occupied the same uncontested, did various forms of agriculture most particular of which is gardening of both domestic and commercial gardening among others.*

*f) That the family and children of the late Kirabira continued to occupy and make full use of the suit land even after his demise till to date with the 1st plaintiff cultivating two acres which her father the late Kirabira had given her before his demise and the rest of the children cultivating thereon as and when they would feel like without any disturbance save for the part occupied by Lukandwa.*

Having read the application and submissions of both parties I observe that the applicants ought to have sought the amendment of paragraph 5(g) and not 5(f) of the Plaint. Paragraph 5 (g) of the plaint states that the family and children of the late Kirabira continued to occupy and make full use of the suit land after his demise. My understanding of the proposed amendment sought by the Plaintiffs is to define the activities that the family of the deceased Kirabira conducted on the suit land and this falls in line with the amendment of Paragraph 5(g) and not 5(f) of the Plaint. Paragraph 5(f) speaks to the registration of the deceased on the Certificate of Title and not the activities of the family on the suit which is the sought after amendment. This court hereby invokes the provisions of Article 126 (2) (e) of the 1995 Constitution of the Republic of Uganda to treat this error as a technicality that should not defeat the ends of justice.

I find that the above amendments are proper and are necessary for the purpose of determining the real questions in controversy between the parties to this suit. This Application therefore succeeds and I make the following orders;

- 1. The Applicants are granted leave to amend paragraphs 5 (d) & (g) of the Plaint. - 2. The Applicants will serve the Respondents with the Amended Plaint within 15 days from the date of this ruling. - 3. The Respondents will file an Amended Written Statement of Defence within 15 days from the date of service of the amended Plaint.


4. Costs shall be in the cause.

I so order

**……………………………………………………………………………….**

# **FARIDAH SHAMILAH BUKIRWA NTAMBI**

#### **AG. JUDGE**

*Ruling delivered on ECCMIS on 5 thMay, 2025.*