[2025] UGCommC 187

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT DIVISION) MISCELLANEOUS APPLICATION NO. 303 OF 2025** 5 **(ARISING OUT OF CIVIL SUIT NO. 0579 OF 2024)**

### **KARUNGI ELIZABETH::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT VERSUS**

### **1. CAIRO BANK UGANDA LIMITED**

### 10 **2. KKINGO PARENTS' TRANSPORTERS COMPANY LTD::::::::RESPONDENTS**

#### **Before: Hon. Lady Justice Dr. Ginamia Melody Ngwatu**

#### **RULING**

- 15 The applicant brought this application by way of chamber summons under section 98 of the Civil Procedure Act, and Order 6 Rules 19 and 31 of the Civil Procedure Rules S. I. 7l-1, as amended. The application seeks orders that the applicant be granted leave to amend the plaint in *Civil Suit No. 579/2024* pending hearing before this court; and that costs of the suit be in the cause. - 20

The grounds upon which the application is premised are contained in the affidavit of the applicant, Ms. Karungi Elizabeth, and are briefly that:

- 1. The applicant purchased four Isuzu buses on 6th October 2021 from the 2 nd respondent at a purchase price of Ugx 1,250,000,000. - 2. The said busses were mortgaged by the 2nd respondent to the 1st 25 respondent as security for a loan; and the 1st respondent agreed to the sale transaction between the applicant and the 2nd respondent; - 3. After paying the full purchase price of Ux1,250,000,000 in accordance with the terms set out in the sale agreement, the respondents did not release the registration documents for 30 the said four buses; thereby breaching the contract; - 4. A suit was consequently instituted against the respondents jointly and severally for breach of contract of sale of the Isuzu buses registration numbers: UBB 928B, UBB 940T, UBB 598T and UBE 689R vide Civil Suit No. 0579 of 2024, which is pending hearing before this court; - 35 5. After filing *Civil Suit No. 0579/2024*, new developments occurred in that one of the suit motor vehicles, Isuzu bus registration No. UBE 689R, was illegally attached and sold by the 1st respondent in connivance with the 2nd respondent in recovery of a debt against the 2 nd respondent;

- 6. The sale occurred when the full purchase price of the four Isuzu buses had already been paid. - 7. The amendment does not seek to introduce a new cause of action but to espouse the initial cause of action and point out the illegalities continuously committed by the 5 respondents. - 8. The application is brought in good faith and the respondent will not be prejudiced in any way.

The respondent opposed the application through an affidavit in reply deposed by Assimwe Robert, a Director in the 2nd 10 respondent company, who briefly stated that:

- 1. The 2nd respondent entered into an agreement of sale of buses with the applicant. - 2. The applicant only paid Ugx 600,000,000 on the purchase price and took possession of the buses. - 3. The applicant breached the sale agreement by not paying the balance of Ugx 650,000,000 15 but only paid Ugx 98,000,000 outside the agreed time for October, November, December 2021 and part of January 2022. - 4. Following the breach, the 2nd respondent filed *Civil Suit No. 20/2022* in the High Court at Masaka for the outstanding balance of Ugx 552,000,000; and the suit was determined in favour of the 2nd respondent on 16th April 2025. - 20 5. All the issues in the original plaint as sought to be amended and those in the proposed amendment against the 2nd respondent were settled by the High Court sitting at Masaka in *Civil Suit No. 20/2022.* - 6. The applicant is currently pursuing an appeal from *Civil Suit No. 20/2022.* - 7. All issues of indebtedness between the applicant and the 2nd respondent were finally - 25 determined by the High Court at Masaka and, therefore, a similar suit cannot be sustained in this court. - 8. The application for amendment of the plaint has overtaken by events and should be dismissed with costs.

## 30 **Representation at the hearing**

The applicant was represented by Mr. Nuwagaba Moses of M/s Prudens Law Advocates. The 1st and 2nd respondents were not represented despite being served on 22nd April 2025. It is only the applicant that filed written submissions and the same are on the Court record. The 2nd respondent had, however, filed an affidavit reply to the application.

## **Issue for determination**

The issue for determination in this application is whether the applicant has proved the grounds to warrant a grant of leave to amend pleadings?

### 5 *Decision of court*

Order 6 rules 9, 18 and 31 of *The Civil Procedure Rules* give the Court a wide discretion to allow either party, to alter or amend his or her pleadings, at any stage of proceedings and on such terms as may be necessary for the purpose of determining the real question in controversy as between the parties. The paramount guiding principle in the exercise of this discretion is that the 10 intended amendment should enable court to determine the real questions in controversy between the parties, without causing injustice to the other party.

Before delving into the considerations for a grant of leave to amend a plaint, this court observed, in the course of perusing the affidavit in reply to the application, as well as the 15 affidavit in rejoinder as sworn by the applicant, that issues of *res judicata* arise since the applicant and the 2nd respondent were involved in a suit pertaining to the same subject matter at Masaka High Court vide *Civil Suit No. 20/2022* which was determined on 16th April 2025.

The 2nd respondent herein sued the applicant for breach of contract vide *Civil Suit No. 20/2022* at 20 Masaka High Court. The said suit was for recovery of Ugx 552,000,000 and or in the alternative, an order for return of the very same four buses that the applicant filed a suit before this court for: UBB 928B, UBB 940T, UBB 598T and UBE 689R. the said Civil Suit No. 20/2022 was determined in favour of the 2nd respondent on 16th April 2025 the respondent attached a copy of the plaint, record of proceedings and judgment that was delivered by Masaka High Court. The

25 only difference is that the applicant filed the main suit, from which this application arose at the Commercial Court and included the 1st respondent/defendant bank.

Section 7 of The Civil Procedure Act Cap 282 provides that:

*"no court may try any suit or issue in which the matter directly and substantially in* 30 *issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court."*

#### 35

"res judicata" is defined in Black's Law Dictionary 10th Edition as:

*"An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…"*

The basis of the rule of *res judicata* is that an individual should not be vexed twice for the same 5 cause. In this instance, a claim that a matter is of "*res judicata*" becomes an "*estoppel*" against the losing party from again litigating matters involved in previous action.

The principle of res judicata was laid out in the Halsbury's Laws of England, Volume 12 (2009) 5 th Edition, where it was stated that:

*"The law discourages re-litigation of the same issues except by means of an appeal. It* 10 *is not in the interest of justice that there should be re-trial of a case which has already been decided by another court, leading to the possibility of conflicting judicial decisions, or that there should be collateral challenges to judicial decisions; there is a danger not only of unfairness to the parties concerned, but also of bringing the administration of justice into disrepute."*

The 2nd respondent, in their affidavit in reply to this application deposed by Mr. Robert Asiimwe, its Director, raised the issue of this application as well as the main suit *Civil Suit No. 579/2024* being *res judicata*. The 2nd respondent stated that Civil Suit no. 0020/2022 was determined on 16th April 2025 at Masaka High Court and that the applicant is pursuing an appeal 20 at the Court of Appeal.

The applicant herein even filed *Miscellaneous Application No. 12 of 2025 Karungi Elizabeth vs Kkingo Parents Transporters Co. Ltd* before Masaka High Court seeking to set aside the *exparte* proceedings that were conducted without her vide *Civil Suit No. 20/2022*; a stay of the delivery of the pending judgment; and that the civil suit be heard interparty and on its merits. The said 25 application was, however, dismissed with costs since court found that the applicant was duly

- served with summons and the plaint in 2022 and her refusal to accept the documents did not negate the effectiveness of service under order 5 rule 14 of the Civil Procedure Rules, which permits the court to deem service to be valid upon refusal by a party to acknowledge. Court also observed that her delay in filing the application to set aside for nearly three years after the suit's - 30 commencement in March 2022 further undermined her position, and suggested dilatory conduct rather than a general pursuit of justice. Court found that the applicant's non-participation was a matter of her own choice.

The applicant in her affidavit in rejoinder did not deny the existence of a judgment vide Masaka High Court *Civil Suit No. 0020/2022 Kkingo Parents Transporters Co. Ltd vs Karungi Elizabeth* 35 but maintained that the said suit was heard *exparte* and she was not given an opportunity to be heard.

In the case of *Omondi v. National Bank of Kenya Limited and Others [2001] EA 177*, court held that parties cannot evade the doctrine of *res judicata* by merely adding other parties or causes of action in a subsequent suit. In the Omondi case, court cited Kuloba J (as he then was) in the case of *Njanju vs Wambugu & Another Nairobi HCC No. 2340/1991 (unreported)* where he stated

5 that:

*"if parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift in every occasion he comes to court, then I do not see the use of the doctrine of res judicata."*

The applicant/plaintiff and the 2nd respondent/defendant herein are the same parties in High Court Masaka *Civil Suit No. 0020/2022,* in which judgment was entered against the applicant/plaintiff and an appeal is being pursued*.* The issues of breach of contract that were determined in High Court Masaka *Civil Suit No. 0020/2022* are the same as those being 15 considered in this court vide *Civil Suit No. 579/2024*. The cosmetic facelift in this instance is the addition of Cairo Bank as the 1st respondent/defendant as compared to *Civil Suit No. 0020/2022* where the respondent bank was not a party to the suit. It appears, therefore, that the issues in this application were handled in *Civil Suit No. 0020/2022* and the same were determined by a competent court. A consideration of the same issues between the same parties by this court is an 20 abuse of court process.

In the premises, this court has no alternative but dismiss the application on the ground of *res judicata* since all the issues raised herein and in the main suit were traversed in *Civil Suit No. 0020/2022*. The applicant still has the remedy of pursuing the appeal she lodged at the Court of Appeal against the judgment in *Civil Suit No. 0020/2022.*

25 This application is dismissed with costs to the respondent.

*Dr. Ginamia Melody Ngwatu Ag. Judge 23rd June 2025*

*Ruling delivered via ECCMIS*