Wakilii

Mutesi v Attorney General (MISCELLANEOUS CAUSE NO. 241 OF 2016)

High Court · [2016] UGHCCD 137 · 2016 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Oral application to amend a Notice of Motion in judicial review proceedings
Decision
Application to amend Notice of Motion dismissed

Observed later treatment

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Holding

The court refused to allow the applicant to amend the Notice of Motion in judicial review proceedings on the ground that the proposed amendment completely altered the cause of action, substituting prerogative orders of certiorari, prohibition and mandamus with declarations, and would prejudice the respondent's defence by depriving it of defences raised in reply.

Outcome

Application to amend Notice of Motion dismissed

Facts

The applicant filed a judicial review application seeking prerogative orders of certiorari, prohibition and mandamus. After the respondent served an affidavit in reply, the applicant's counsel made an oral application to amend the Notice of Motion, arguing that new facts had emerged: on 9 November 2016 the Public Service had written to Mr. Mwambustya (a Senior State Attorney) offering him appointment as Commissioner, the position in contest, and Mr. Mwambustya had accepted the appointment on 11 November 2016. The applicant argued that this development completed and advanced the illegality complained about, and that the amendment was necessary to address these new facts without fundamentally changing the application. The respondent opposed the amendment, arguing it introduced a new cause of action and sought to defeat defences raised in the reply.

Issues

  1. Whether the court should allow the applicant to amend the Notice of Motion in judicial review proceedings to respond to new facts raised in the respondent's affidavit in reply.
  2. Whether the proposed amendment would introduce a new cause of action and deprive the respondent of its defence.

Orders

  • Proposed amendment refused.
  • Oral application dismissed.

Rules and key headnotes

Civil Procedure — Judicial Review — Amendment of Notice of Motion — Power of Court under Rule 7 of Judicature (Judicial Review) Rules 2009
Under rule 7 of the Judicature (Judicial Review) Rules 2009, the court may on the hearing of a motion allow the applicant to amend the motion, whether by specifying different or additional grounds or reliefs or otherwise, on such terms as it thinks fit, and may allow further affidavits to be used if they deal with new matters arising out of any affidavit of any party to the application.
Civil Procedure — Amendment — Principles Governing Amendment — Substitution of Cause of Action
Although amendments sought before or during the hearing of a judicial review motion should be freely allowed without injustice to the other side, there is no power given to court to allow one distinct cause of action to be substituted for another, and the court will refuse leave to amend where the amendment would change the action into one of a substantially different character or where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment, for example by depriving the party of the defence of limitation or any other defence.
Judicial Review — Amendment — Timing Requirement — Rule 5 of Judicature (Judicial Review) Rules 2009
The amendment envisaged under rule 7 of the Judicature (Judicial Review) Rules must have arisen within the period allowed for filing for judicial review as provided under rule 5 of the Judicial Review Rules, not outside it.

Legislation cited (2)

  • Judicature (Judicial Review) Rules 2009 rule 7
  • Judicature (Judicial Review) Rules 2009 rule 5

Cases cited (2)

  • Hilton v Salon Steam Laundry [1946] KB 65
  • Mulowooza Brothers v Shaa (Supreme Court Civil Appeal No. 26 of 2010)

Full judgment

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

Mutesi v Attorney General (MISCELLANEOUS CAUSE NO. 241 OF 2016) [2016] UGHCCD 137 (12 December 2016)
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.