Wakilii

Kensville Limited v Nakaibale (Miscellaneous Application 197 of 2023)

High Court · [2023] UGHCLD 368 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to amend written statement of defence in pending civil suit, arising from Civil Suit No. 493 of 2016
Decision
Application for leave to amend written statement of defence dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an application to amend a written statement of defence to introduce a counterclaim is not prohibited by law where it does not substitute one distinct cause of action for another. However, the amendment was denied on the grounds that it was brought in bad faith after seven years without valid justification, and the proposed counterclaim for special damages and mesne profits constituted a new distinct cause of action that would prejudice the respondent.

Outcome

Application for leave to amend written statement of defence dismissed

Facts

The applicant defendant in Civil Suit No. 493 of 2016 sought leave to amend its written statement of defence filed on 23 August 2016 to include a counterclaim and additional material facts. The underlying suit concerned cancellation of a certificate of title and involved a temporary injunction granted by consent on 24 November 2016. Pleadings had closed but the hearing had not commenced. The applicant filed the amendment application on 17 January 2023, seven years after filing its original defence, stating that new counsel discovered the defence had omitted a counterclaim. The proposed counterclaim sought special damages and mesne profits of UGX 320,000,000 arising from the respondent's alleged failure to prosecute the suit and losses from halted warehouse construction plans. The respondent opposed on grounds including bad faith, undue delay, and that the amendment would introduce a new cause of action.

Issues

  1. Whether the court has jurisdiction to allow an amendment to a written statement of defence to introduce a counterclaim after the prescribed time for filing a defence has expired.
  2. Whether the applicant has sufficient grounds to justify the grant of an order allowing the amendment of the written statement of defence seven years after its initial filing.

Orders

  • Application dismissed.
  • Costs of the application awarded to the respondent.

Rules and key headnotes

Civil Procedure — Amendment of Pleadings — Counterclaims — Introduction by Amendment After Time for Filing Defence Has Expired
Order 8 rule 7 of the Civil Procedure Rules requires that a defendant seeking to rely on a counterclaim must specifically state so in their statement of defence, but this procedural requirement should not be interpreted to unduly restrict the court's discretion to consider amendments that do not fundamentally alter the nature of the case, provided the amendment does not substitute one distinct cause of action for another.
Civil Procedure — Amendment of Pleadings — Principles Governing Grant of Leave — Delay and Bad Faith
Under Order 6 rule 19 of the Civil Procedure Rules, amendments may be allowed at any stage where they enable the real question in controversy to be adjudicated and cause no injustice to the opposite party. However, an application brought seven years after the original pleading without valid justification for the delay may be inferred to be in bad faith, particularly where the party was aware of relevant facts from an early stage and change of counsel alone is not a valid reason for such delay.
Civil Procedure — Amendment of Pleadings — New Cause of Action — Prohibition
An amendment that introduces a new distinct cause of action or deprives the opposite party of an accrued right will not be allowed. A claim for special damages and mesne profits arising from losses allegedly incurred during a seven-year delay in prosecuting a suit, where the applicant was aware of the circumstances from the outset, constitutes a new distinct cause of action brought as an afterthought that would prejudice the respondent.

Legislation cited (4)

Cases cited (9)

  • Omumbejja Namusisi Faridah Naluwembe v Makerere University (Miscellaneous Application No. 7199 of 2013)
  • Charles Kamudda v J.X Mubuuke (Miscellaneous Application No. 230 of 2022)
  • Matico Store Limited & Anor v James Mbabazi & Anor 1993 HCB 31
  • Mulowooza & Brothers Ltd v Shah & Co. Ltd (Supreme Court Civil Appeal No. 26 of 2010)
  • Gaso Transport Services Ltd v Martin Adala Obene (Supreme Court Civil Appeal No. 4 of 1994)
  • Edward Kabugo Sentongo v Bank of Uganda (High Court Miscellaneous Application No. 2091 of 2007)
  • Lubowa Gyavira & Others v Makerere University (High Court Miscellaneous Application No. 471 of 2009)
  • NAMUSISI MIKAAWA (MISCELLANEOUS APPLICATION NO. 203 OF 2007)
  • Edward Kabugo Sentongo v Bank of Baroda (High Court Miscellaneous Application No. 0203 of 2007)

Full judgment

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

Kensville_Limited_v_Nakaibale_(Miscellaneous_Application_197_of_2023)_[2023]_UGHCLD_368_(31_October_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.