Zam Zam Zahara v Mwima and Another (Civil Suit 5 of 2016)

Observed later treatment

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.

Holding

The court held that a substituted defendant must represent the interests of the deceased defendant, not introduce third party rights created during the pendency of the suit. The proposed amendment was rejected because Mwima Faisal was not the legal representative of deceased defendant James Muleme and sought to protect his own interests in the suit property rather than enforce the deceased's rights. The substituted defendant was struck off the record with directions that the legal representative of the deceased be added as a party, or alternatively that the suit proceed against the second defendant alone.

Outcome

Substituted defendant struck off record; legal representative of deceased to be added or suit to proceed against second defendant alone

Facts

The plaintiff originally sued James Muleme alone in 2016, later adding the Departed Asian Property Custodian Board as second defendant. During the pendency of the suit, after witness statements were filed and the matter was adjourned for scheduling, James Muleme died in 2021. Mwima Faisal was subsequently substituted as first defendant through Miscellaneous Application No. 130 of 2022. After substitution, he sought leave to amend the written statement of defence through Miscellaneous Application 362 of 2023, which was granted. The second defendant raised a preliminary objection to the amended pleading. The proposed amendment sought to introduce new facts creating third party rights in the suit property that were not present when the original defendant was sued.

Issues

1. Whether the substituted defendant (Mwima Faisal) should be permitted to amend the written statement of defence to introduce new facts creating third party rights not present when the original defendant was sued.
2. Whether the substituted defendant was properly substituted as legal representative of the deceased defendant.
3. Whether the proposed amendment would cause injustice to the plaintiff and the second defendant.

Orders

• The preliminary objection is upheld.
• The 1st Defendant's amended written statement of defence is rejected.
• Mr. Mwima Faisal shall be struck off the court record since he is not the legal representative of the late James Muleme.
• The legal representative of the late James Muleme once appointed shall be added as a party to this suit.
• Alternatively, if the legal representative cannot be found, the suit shall proceed against the 2nd Defendant alone.

Rules and key headnotes

Legislation cited (4)

• Civil Procedure Rules Order 6 rule 19
• Civil Procedure Rules Order 24 rule 4(1)
• Civil Procedure Rules Order 24 rule 2
• Succession Act Cap 268 s.214

Cases cited (2)

• Eastern Bakery v Castelino [1958] EA 461
• Ntungamo District Council v Karazarwe (1997) 111 KLR 52

Cases citing this judgment (1)

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.

• Onaba George v Ruth Inyalio (Civil Appeal No. 85 of 2017)

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