Wakilii

Habomugisha v Sewankambo (Miscellaneous Application 1116 of 2024)

High Court · [2024] UGCOMMC 368 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for joinder of party arising from civil suit for trademark infringement
Decision
Application for joinder of party dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed an application to join Kangaroo Brands Ltd Kenya as a defendant in trademark infringement proceedings. The applicant, acting as distributor of goods from the Kenyan company, failed to demonstrate that joinder was necessary for effectual and complete adjudication of the infringement claim. The alleged wrongs were specific to the individual defendants, and the applicant had already filed defence and counterclaim without joining the proposed party. Addition at this late stage was an unnecessary afterthought prejudicial to the respondent.

Outcome

Application for joinder of party dismissed

Facts

The respondent instituted Civil Suit No. 454 of 2019 against the applicant and others for trademark infringement, alleging they infringed his registered trademark KANG SHOE CARE. The applicant, named as 2nd defendant, acts as importer and distributor in Uganda for Kangaroo Brands Ltd Kenya, which owns a Kangaroo trademark registered in Kenya in 2001. In 2024, five years after suit was filed and after already filing his defence and counterclaim, the applicant sought to add Kangaroo Brands Ltd Kenya as a defendant, arguing it was necessary because he acts as their agent and the trademark belongs to the Kenyan company. The respondent opposed, contending he has no claim against the Kenyan company, trademarks are territorial, and the application was brought in bad faith to waste time. A preliminary objection was raised that the applicant's affidavit was defective because he is Muslim but swore rather than affirmed, though no evidence proved his religion.

Issues

  1. Whether it is necessary and proper to add Kangaroo Brands Ltd Kenya as a Defendant in Civil Suit No. 454 of 2019.
  2. What remedies are available to the parties.

Orders

  • Application dismissed.
  • Costs of the application to be in the cause.

Rules and key headnotes

Civil Procedure — Joinder of Parties — Order 1 Rule 10(2) CPR — Test for Addition of Party
For a person to be joined on the ground that his presence is necessary for effectual and complete settlement of all questions involved in the suit, either it must be shown that the orders which the plaintiff seeks would legally affect the interests of that person, or that it is desirable for avoidance of multiplicity of suits to have such a person joined so that he is bound by the decision of the court.
Civil Procedure — Joinder of Parties — Discretion of Court — Plaintiff's Right to Choose Defendants
A plaintiff is not obliged to sue a person against whom he does not have relief, and generally a person cannot be added as a co-defendant against the wishes of the plaintiff, though the court may add a joint contractor who is within the jurisdiction despite the plaintiff's wishes.
Civil Procedure — Joinder of Parties — Late Application — Afterthought
Where a defendant has already filed defence and counterclaim without seeking to join a proposed party, and then seeks joinder five years after suit was filed, the application may be dismissed as an unnecessary afterthought prejudicial to the plaintiff at that late stage.
Civil Procedure — Affidavit Evidence — Oaths Act — Preliminary Objection
A preliminary objection that an affidavit is defective because the deponent is Muslim but swore rather than affirmed will be overruled where no evidence is adduced to prove the deponent's religion and no facts are shown demonstrating non-compliance with the Oaths Act.

Legislation cited (9)

Cases cited (7)

  • Oriental Insurance Brokers Ltd v Transocean (U) Limited (Supreme Court Civil Appeal No. 55 of 1995)
  • Mulowooza & Brothers Ltd v N. Shah & Co. Ltd (Supreme Court Civil Appeal No. 26 of 2010)
  • Gaso Transport Services (Bus) Ltd v Martin Adala Obene (Supreme Court Civil Appeal No. 4 of 1994)
  • Kololo Curing Co. Ltd v West Mengo Co-op Union Ltd [1981] HCB 60
  • Yahaya Kariisa v Attorney General & Another (Supreme Court Civil Appeal No. 7 of 1994)
  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd (Supreme Court Civil Appeal No. 9 of 1998)
  • Amon v Raphael Tuck & Sons Ltd [1956] 1 All ER

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Habomugisha v Sewankambo (Miscellaneous Application 1116 of 2024) [2024] UGCommC 368 (20 November 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.