Wakilii

Hiire Mudanye Mike and Others v Okumu Sarah Kitasle and Others (MSC APPLICATION NO 009 OF 2022)

High Court · [2025] UGHC 189 · 2025 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for substitution of party and leave to amend plaint arising from civil suit
Decision
Application partly allowed (substitution granted) but dismissed on main prayer (amendment refused); costs to Respondents

Observed later treatment

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Holding

The court dismissed an application for substitution of a defendant and leave to amend the plaint. While it allowed the substitution of the 1st defendant with costs, it rejected the proposed amendment on grounds that the amended plaint introduced a new cause of action — fraud — that was not pleaded in the original plaint, thereby prejudicing the respondents in a manner that could not be compensated by costs alone.

Outcome

Application partly allowed (substitution granted) but dismissed on main prayer (amendment refused); costs to Respondents

Facts

The applicants filed an application seeking to substitute the 1st Defendant with Butaleja District Land Board and to amend their plaint in the underlying civil suit No. 78 of 2022. The original plaint sought a declaration of ownership, permanent injunction, and cancellation of freehold title without pleading fraud. The proposed amended plaint introduced a new party (Butaleja District Land Board), removed a defendant, and specifically pleaded fraud and trespass with detailed particulars of fraud against each defendant. The respondents had already filed defenses to the original plaint. A preliminary objection was raised challenging the admissibility of an affidavit sworn by Were Samuel Hibinga on grounds of false statements regarding his capacity as chairperson of the 2nd Respondent's Board of Governors since 2018.

Issues

  1. Whether the affidavit sworn by Were Samuel Hibinga in reply should be struck out
  2. Whether the 1st Defendant/Respondent should be substituted with Butaleja District Land Board
  3. Whether the applicants have shown grounds entitling them to be granted leave to amend their plaint in the main suit

Orders

  • Preliminary objection to strike out affidavit of 2nd Respondent dismissed.
  • Application to substitute 1st Defendant/Respondent with Butaleja District Land Board granted with costs to the 1st Defendant/Respondent.
  • Application for leave to amend plaint dismissed.
  • Application dismissed with costs to the Respondents.

Rules and key headnotes

Civil Procedure — Evidence — Affidavits — Admissibility — Hearsay and Documents by Non-Deponents
An affidavit in rejoinder that relies on documents not authored by the deponent and not addressed to the deponent, where the deponent does not explain how he obtained the documents or the information therein, is defective and cannot be relied upon to rebut an affidavit sworn in reply.
Civil Procedure — Evidence — Affidavits — Scope of Admissible Content
Under Order 19 Rule 31 of the Civil Procedure Rules, affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except in interlocutory applications where statements of belief may be admitted provided the grounds thereof are stated.
Civil Procedure — Parties — Substitution and Removal — Costs
Where the court allows substitution or removal of a party under Order 1 Rule 10(2) of the Civil Procedure Rules, costs should be awarded to the party removed to compensate for expenses incurred in engaging counsel and filing defenses, as costs follow the event.
Civil Procedure — Amendment of Pleadings — Test for Grant of Leave — Introduction of New Cause of Action
An amendment to pleadings that introduces a new cause of action distinct from the original pleadings, introduces new parties, and sets out entirely new allegations will not be allowed where it prejudices the other party in a manner that cannot be compensated by costs, even if sought before commencement of hearing.
Civil Procedure — Amendment of Pleadings — Fraud — Requirement of Specific Pleading
Fraud must be specifically pleaded and set out in the plaint. An amendment that seeks to introduce fraud into a plaint where it was not pleaded at all in the original proceedings introduces a new cause of action and will be refused where it prejudices the defendants who filed defenses without addressing allegations of fraud.

Legislation cited (7)

Cases cited (6)

  • col (Rtd) Kiiza Besigye v Museveni and Another Election Petition Number 1 or 2201
  • Chebrot Stephen Chemoiko v Soyekwo Kenneth and Another (Election Petition Appeal No. 56 of 2016)
  • Gaso Transport Services (Bus) Ltd v Martin Adala Obene (Supreme Court Civil Appeal No. 4 of 1994)
  • Namusisi Yozfina v David Kikaawa (Miscellaneous Application No. 1595 of 2018)
  • Mulowoza and Brothers Ltd v Shah and Co Ltd (Supreme Court Civil Appeal No. 26 of 2010)
  • Wind River Logistics Ltd and Another v Mityana Farm Group Enterprises Ltd and 2 Others (Miscellaneous Application No. 169 of 2022)

Full judgment

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

Hiire Mudanye Mike and Others v Okumu Sarah Kitasle and Others (MSC APPLICATION NO 009 OF 2022) [2025] UGHC 189 (7 February 2025)
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.