Wakilii

Kyaligonza and 12 Other v Mukasa and Another (Miscellaneous Application 649 of 2023)

High Court · [2023] UGHCFD 98 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to be added as defendants in an underlying succession suit challenging the validity of a will
Decision
Application dismissed on preliminary objections; applicants not added as defendants to the underlying succession suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application dismissed. Court held that the application was incurably defective where eleven of thirteen applicants filed no supporting affidavits and gave no written authority to another to swear on their behalf, the supporting affidavits referenced chamber summons rather than notice of motion, and the next friend's affidavit contained material falsehoods. The first applicant failed to demonstrate how his legal interests would be directly affected by the underlying suit challenging a will.

Outcome

Application dismissed on preliminary objections; applicants not added as defendants to the underlying succession suit

Facts

Thirteen applicants sought leave to be added as defendants to Civil Suit No. 525 of 2022, an action challenging the validity of the will of the late George Tibahwerwa Kyaligonza. The applicants claimed to be beneficiaries under the will whose interests would be affected by orders setting aside the will. The underlying suit was brought by two respondents seeking to invalidate the will. Applicants 3 and 4 sued through their next friend Katushabe Mable, who claimed they and she were beneficiaries. The application was supported by only two affidavits: one by the 1st applicant Timothy Kyaligonza, and one by Katushabe Mable on behalf of the 3rd and 4th applicants. The remaining eleven applicants filed no affidavits and gave no written authority. Both supporting affidavits stated they were in support of chamber summons, though the application was by notice of motion. The respondents opposed, raising preliminary objections that the application was defective in form and that Katushabe Mable's affidavit contained falsehoods, notably her claim that she and her children were named in the will executed on 15 April 2007, when in fact they were not mentioned.

Issues

  1. Whether the applicants' Notice of Motion is supported by proper affidavits.
  2. Whether the affidavit sworn by Katushabe Mable contains falsehoods rendering it defective.
  3. Whether Timothy Kyaligonza (the 1st applicant) should be added as a defendant to the underlying succession suit.

Orders

  • Miscellaneous Application No. 649 of 2023 dismissed.
  • Costs awarded to the Respondents.

Rules and key headnotes

Civil Procedure — Joinder of Parties — Written Authority to Act on Behalf of Co-Applicants — Order 1 Rule 12
Where an application is brought by multiple applicants and some applicants file no supporting affidavit, they must give written authority signed and filed in the case for another applicant to act on their behalf by swearing an affidavit. Failure to do so renders the application incompetent and unsupported as to those applicants.
Civil Procedure — Applications by Notice of Motion — Defective Supporting Affidavits — Chamber Summons versus Notice of Motion
An application brought by notice of motion is incurably defective where the supporting affidavits state they are in support of chamber summons. Article 126(2)(e) of the Constitution does not cure such procedural carelessness, and the notice of motion is left unsupported by any valid affidavit.
Civil Procedure — Affidavits — Falsehoods — Effect on Application
An affidavit in support of an application which contains deliberate and material falsehoods is suspect and cannot be relied upon. Where the falsehood is central to the case, the affidavit is struck out and the application based on it must fail.
Civil Procedure — Joinder of Parties — Necessary Party — Order 1 Rule 10
A person seeking to be added as a party under Order 1 Rule 10(2) of the Civil Procedure Rules must demonstrate that the orders sought in the main suit would directly and legally affect that person's interests. It is not sufficient merely to assert a general interest as a beneficiary where the interests of beneficiaries are represented by executors.

Legislation cited (8)

Cases cited (9)

  • Eriast Sewava Salongo and 19 Others v Richard Male Mukasa (Revision Application No. 034 of 2018)
  • Bet City (U) Ltd & Anor Versus SWANG Avenue (U) Ltd
  • Joseph Mulega Vs Photo Focus (U) Ltd (1996) VI KALR 19
  • Meddie Ddembe Maji Marefu v Nalongo Namusisi (Miscellaneous Application No. 35 of 2002)
  • Bitaitama Vs. Kanamura [1977] HCB 34
  • Kilolo Curing Co. Ltd Vs West Mengo Co-op Union Ltd (1991) HCB 60
  • Ally Route Ltd v Uganda Development Bank Ltd (Miscellaneous Application No. 59 of 2007)
  • Departed Asians Property Custodian Board Vs Jaffer Brothers Ltd [1999] 1 EA 55
  • Gokaldas Laximidas Tanna v Store Rose Muyinza (Civil Suit No. 7076 of 1987)

Full judgment

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

Kyaligonza and 12 Other v Mukasa and Another (Miscellaneous Application 649 of 2023) [2023] UGHCFD 98 (21 November 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.