THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT LUWERO

MISCELLANEOUS APPLICATION NO. 046 OF 2023
ARISING FROM CIVIL SUIT NO. 00l0 OF 2023

NAMUGGA FLORENCE::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS
1. ALEXANDER KIZZA KIBERU RESPONDENTS
2. VICTORIA SUGAR LIMITED

BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA

NTAMBI.

RULING
Background
This is a ruling with respect to an application that was brought under Section 98 of
the Civil Procedure Act, Order 1 Rules 10 (2) & 13 and Order 52 Rules 1, 2 and 3
of the Civil Procedure Rules seeking the following orders.

1. The Counterclaim be amended and Samuel Ejangu, Ndawula Ronald and

Commissioner Land registration be added as Counter defendants.

2. Costs of this Application are in the cause.

The grounds of the Application were laid out in the Affidavit in support of the
Application deponed by the Applicant but are briefly stated below:

1. The Applicant is a beneficiary and the surviving Administrator of the Estate

of the Late Kiberu Paulo.

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 2. The Counter Defendants have since dealt with the estate of the late
fraudulently.

3. Ndawula Ronald purported to purchase the estate land and he fraudulently

transferred the same into his names.

4. That the presence of Ejangu Samuel, Ndawula Ronald and Commissioner

Land Registration before this Court is necessary to enable the Court to
effectually and completely adjudicate upon and settle all questions involved
in the suit.

5. That the amendment is necessary to enable the parties to avoid a multiplicity

of suits.

6. That the addition of Ejangu Samuel, Ndawula Ronald and Commissioner

Land Registration shall not prejudice the Respondents.

7. That it is just and equitable that the Application be allowed as presented.

The 2nd Respondent filed an Affidavit in Reply deponed by Esther Akoyo wherein
the current Application was opposed on grounds that Civil Suit No. 10 of 2023
stood dismissed without notice against the 2nd Respondent and as such, this
Application cannot stand against the 2nd Respondent.The 1st Respondent did not
file an Affidavit in Reply despite having been given an opportunity to do so by the
Court. As a result, this Application will be determined exparte in respect of the 1st
Respondent.

Representation

During the hearing, the Applicant was represented by M/S Kajeke, Maguru & Co.
Advocates while the 2nd Respondent was represented by J.B Byamugisha
Advocates.

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Determination of the Application

The sole question or issue for determination in the instant application is whether
the Applicant has presented sufficient cause to move the court to grant an
application of joinder of parties as counter-defendants in Civil Suit No. 10 of 2023.

It is pertinent to note that at the hearing of 2nd June 2025, this Court granted leave
to the 1st Respondent to file an affidavit in reply to the application, which
necessitated an adjustment of the Applicant’s written submissions. Consequently,
the Applicant’s initial submissions were expunged, and fresh timelines were set as
follows; That the Applicant would file her written submissions by 1st July 2025, the
1st Respondent by 17th July 2025 and the Applicant would file a rejoinder, if any,
by 24th July 2025. Regrettably, both the Applicant and the 1st Respondent failed to
comply with these directions. Accordingly, this Court shall proceed to determine
the application based on the 2nd Respondent’s submissions alone and the pleadings
on record.

Submissions by the 2nd Respondent

Counsel for the 2nd Respondent submitted that his client was never served with
summons to file a defence nor with the defence and counterclaim in Civil Suit No.
10 of 2023. He argued that under Order 8 rule 8 of the Civil Procedure Rules
(CPR,) service of a counterclaim on all relevant parties is mandatory but that this
was not done.

Counsel further relied on Order 5 rule 1 of the CPR which requires summons to be
served within 21 days of issue and that the suit would stand dismissed without
notice where service of summons is not unless time is extended. He cited the case
of Bitamisi Namuddu v Rwabuganda Godfrey, SCCA No. 16 of 2014 where

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failure to serve within the prescribed period was held to render proceedings a
nullity. He also referred to Kanyabwera v Tumwebaze [2000] 2 EA 86,
emphasizing that filing of an affidavit of service is mandatory which was not
complied with in the present case.

On that basis, Counsel contended that the counterclaim against the 2nd Respondent
stood dismissed by operation of law, and that all subsequent proceedings, including
the present application, are a nullity ab initio in so far as they relate to the 2nd
Respondent. He prayed that the Application be struck out with costs.

Decision of the Court

I have carefully considered the submissions of both parties and will now proceed to
render my ruling. The law governing the substitution, addition and removal of
parties to a suit is governed by Order 1 Rule 10 of the Civil Procedure Rules
which states that;

‘the court may at any stage of the proceedings either upon or without the
application of either party, and on such terms as may appear to the court to
be just, order that the name of any party improperly joined, whether as
plaintiff or defendant, be struck out, and that the name of any person who
ought to have been joined, whether as plaintiff or defendant, whose presence
before the court may be necessary in order to make the court effectually and
completely adjudicate upon and settle all questions involved in the suit, be
added’.

It is trite that the addition or striking out of parties from pleadings, whether upon
application by the parties or on the court’s own motion, lies within the discretion of
the court. Like all judicial discretions, however, it must be exercised judiciously

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and guided by established principles. (See Yahaya Kariisa v Attorney General &
Anor, S.C.C.A. No. 7 of 1994 [1997] HCB 29)

The purpose of joinder of parties, as explained in Samson Sempasa Vs P.K.

Sengendo, H.C.M.A No. 577 of 2013, is to enable the court to effectually and
completely resolve the matters in controversy and to prevent multiplicity of
proceedings.

The guiding considerations for the addition or striking out of parties were set out in
Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1
E.A. 55, where the court held that it must be shown either that the orders sought
would directly affect the legal interests of the party in question and that their
joinder is desirable to avoid multiplicity of suits, or that the defendant could not
effectively raise a defence unless such a party was joined, or an order was made
binding upon them.

In the instant case, the Applicant who happens to be the surviving Administratrix
of the estate of the late Kiberu Paulo, seeks to add Ejangu Samuel, Ndawula
Ronald, and the Commissioner Land Registration as counter-defendants in Civil
Suit No. 10 of 2023 on the ground that the it will enable the Court to effectively
and judiciously determine all matters in controversy relating to the suit land.

From the evidence on record presented in the Affidavit in support of the

Application, I have come to understand prima facie that the estate of the late
Kiberu Paulo is the registered proprietor of the land comprised in Bulemezi Block
740 Plot 1 land at Nabalungi. At the same time, I have noted that there is a
competing claim on ownership of the suit land by Ejangu Samuel and Ndawula
Ronald who purportedly acquired their respective interests by way of purchase and
subsequently carried out subdivisions of the suit land without the Applicant’s

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consent. The Commissioner Land Registration is also implicated in administrative
actions central to the dispute having purportedly carried out investigations and
amendment of the register in a matter in which he allegedly had no jurisdiction.

It is therefore apparent that the rights and interests of these parties are directly
affected by the relief sought in the counterclaim. Their joinder is necessary to
ensure that any orders made are effective, binding, and capable of fully resolving
the controversy. Allowing the amendment will prevent fragmented litigation and
the risk of inconsistent findings, thereby promoting judicial finality.

I must also point out that I have not been presented with evidence to suggest that
the proposed joinder of parties and consequent amendment of the counter-claim
would cause undue prejudice. Any additional costs or time required to engage the
newly joined parties can be addressed by directions of the court and, if appropriate,
compensated by costs. The evidence on record points to the fact that the
amendment is made in good faith and is aimed solely at enabling the court to
adjudicate all matters comprehensively. Any defenses available to the newly added
parties, including those based on limitation, remain preserved and may be raised at
the appropriate stage.

Before I take leave of this matter, I would like to address the issue raised by the 2nd
Respondent concerning the purportedly failure by the Defendant to serve her with
the Counter-claim. It is Counsel for the 2nd Respondent’s submission that failure to
serve this counterclaim on the 2nd Respondent led to dismissal of the Counterclaim
against the 2nd Respondent without notice. I have observed on ECCMIS that on
11th December, 2023, the Counterclaimant filed an affidavit service at court as
proof of service of the Counterclaim and Defence on the 2nd Respondent. Esther
Ayoko, an official of the 2nd Respondent acknowledged receipt of the Defence and
Counterclaim on behalf of the 2nd Respondent.

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I therefore find that this Application is not a nullity ab initio as argued by Counsel
for the 2nd Respondent.

In the circumstances, the court is satisfied that the amendment is necessary for the
effectual and complete determination of the real questions in controversy, and that
justice requires it. The application is therefore granted.

For the foregoing reasons, it is hereby ordered as follows;

1. Ejangu Samuel, Ndawula Ronald, and the Commissioner Land Registration

are added as counter-defendants to Civil Suit No. 10 of 2023.

2. The Applicant shall file and serve the amended counterclaim within fifteen
(15) days from the date of this ruling.

3. Ejangu Samuel, Ndawula Ronald, and the Commissioner Land Registration

and shall file and serve their defences within fifteen (15) days of service.

4. The 1st and 2nd Respondents may amend their pleadings within fourteen (15)
days from the date of service of the Counterclaim if they wish to do so.

5. Costs of this application shall be in the cause.

I so order.

…………………………………………………………………….

FARIDAH SHAMILAH BUKIRWA NTAMBI

AG. JUDGE
Delivered on ECCMIS this 1st day of September, 2025

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