Wakilii

Kare Distributors & Another v African Rivers Fund (Miscellaneous Application 1270 of 2023)

High Court · [2023] UGCOMMC 253 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application arising from counterclaim in Civil Suit No. 700 of 2019, seeking amendment of reply to counterclaim, discovery of documents, contempt orders, and injunction stopping sale of mortgaged property
Decision
Application dismissed; counterclaim to proceed to hearing

Observed later treatment

Cited — treatment unverified cited in 2 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 2 times with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The court dismissed the applicants' miscellaneous application seeking amendment of their reply to the counterclaim, discovery of bank statements and money lender's license, a contempt declaration, and an order stopping the sale of mortgaged property. The court held that the proposed amendment was an afterthought made malafide and would smuggle in contents of a struck-out plaint; that the money lender's license issue had already been determined and bank statements were evidentiary matters; that no contempt occurred as the temporary injunction had been vacated; and that the injunction application was res judicata having been dismissed multiple times by both the High Court and Court of Appeal.

Outcome

Application dismissed; counterclaim to proceed to hearing

Facts

The applicants filed Civil Suit No. 700 of 2019, and the respondent filed a written statement of defence and a counterclaim. In October 2022, the applicants' plaint was struck out by the High Court for being frivolous, vexatious, and an abuse of court process. The counterclaim remained intact. The court also vacated the orders granting a temporary injunction and security of costs. The applicants filed a reply to the counterclaim in September 2019. Over three years later, in August 2023, after their plaint had been struck out, the applicants filed this miscellaneous application seeking: (a) amendment of the reply to counterclaim to incorporate facts from the struck-out plaint; (b) orders for discovery of the respondent's bank statements and money lender's license; (c) a declaration that the respondent's advertisement of the mortgaged property amounts to contempt of court; and (d) an order stopping the sale of the property. The applicants had previously filed multiple applications seeking temporary injunctions, all of which were dismissed by both the High Court and Court of Appeal.

Issues

  1. Whether the proposed amendment of the reply to the counterclaim is proper and in conformity with the principles governing the amendment of pleadings
  2. Whether an order for discovery of documents should be issued in favour of the applicants
  3. Whether the advertisement of the property by the respondents before prosecution and determination of the counterclaim amounts to contempt of Court
  4. Whether it is in the interest of justice for this court to issue an order stopping the sale of the mortgaged property

Orders

  • Application dismissed with costs to the respondent.
  • Suit/counterclaim fixed for hearing as soon as possible to ensure speedy disposal.

Rules and key headnotes

Civil Procedure — Amendment of Pleadings — Principles — Requirement That Amendment Not Work Injustice, Not Be Made Malafide, and Not Introduce New Cause of Action
An application for amendment of pleadings is discretionary but must comply with established principles: the amendment must not work an injustice to the other side; multiplicity of proceedings should be avoided; an application made malafide should not be granted; no amendment should be allowed where expressly or impliedly prohibited by law; and the amendment should not change the cause of action substantially.
Civil Procedure — Amendment of Pleadings — Timing and Abuse of Process — Amendment Sought to Smuggle Contents of Struck-Out Plaint
An amendment sought over three years after filing the reply to counterclaim, and only after the plaint was struck out, which seeks to incorporate facts and issues from the struck-out plaint, constitutes an afterthought and a clear abuse of court process and cannot be allowed.
Civil Procedure — Contempt of Court — Civil Contempt — Ingredients — Requirement of Valid Order and Willful Non-Compliance
To succeed in civil contempt proceedings, an applicant must prove that: an order was issued by the court; the order was brought to the notice of the alleged contemnor; there was non-compliance with the order by the respondent; and the non-compliance was willful and malafide. Where a temporary injunction has been vacated, advertising the sale of the property does not amount to contempt of court.
Civil Procedure — Res Judicata — Application of Doctrine — Repeated Applications for Same Relief Previously Dismissed
Where a party has filed multiple applications for a temporary injunction which have been dismissed by both the High Court and Court of Appeal, a subsequent application seeking to stop the sale of property on the same grounds, even if dressed up differently, is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act.
Civil Procedure — Inherent Powers of Court — Limitations — Not to Be Exercised Where Specific Remedy Exists
The inherent powers of a court under Section 33 of the Judicature Act and Section 98 of the Civil Procedure Act can only be exercised where there is no specific remedy available in the circumstances. Courts will be reluctant to exercise inherent power where a specific remedy existed, and the power cannot be exercised where to do so would defeat the purpose and effect of any given statute.

Legislation cited (15)

Cases cited (12)

  • Okello Peter & Others v Abacus Parenteral Drugs Limited (High Court Mukono Civil Application No. 35 of 2022)
  • Progressive Group of Schools Limited & 2 Others v Barclays Bank & Another (Court of Appeal Civil Appeal No. 349 of 2020)
  • Ham Enterprises v Diamond Trust Bank & Others (Supreme Court Civil Appeal No. 13 of 2021)
  • Twaha Luyimbazi Katongole v The Liquidator of Greenland Bank
  • Gaso Transporters Services (Bus) Ltd v Martin Adale Obene (Supreme Court Civil Appeal No. 4 of 1994)
  • Lubowa Gyaliira & Others v Makerere University (High Court Miscellaneous Application No. 471 of 2009)
  • Muwolooza & Brothers v N Shah & Co Ltd (Supreme Court Civil Appeal No. 26 of 2010)
  • Sempebwa & Others v Attorney General [2019] 1 EA
  • Betty Kizito v Dickson Nsubuga & 6 Others (Supreme Court Civil Appeal No. 25 & 26 of 2021)
  • Carey v Laiken, 2015 SCC 17
  • Adonia v Mutekanga [1970] EA 429
  • Makula International v His Eminence Cardinal Nsubuga [1982] HCB 24

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Kare Distributors & Another v African Rivers Fund (Miscellaneous Application 1270 of 2023) [2023] UGCommC 253 (6 September 2023)
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.