[2025] UGHCFD 37

## 5 **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **(FAMILY DIVISION)**

#### **MISC. APPLICTION NO. 278 OF 2025**

#### **(ARISNG FROM CIVIL SUIT NO. 343 OF 2018)**

#### 10 **1. SAMWUEL GALIWANGO**

- **2. EDWARD NKUGWA** - **3. MPAGI BADRU :::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

- **1. EDITH NALWANGA** - 15 **2. FLAVIA KAMYA** - **3. ENOCK MUSANJE** - **4. SUSAN SENDIWALA** - **5. NTEGE DENNIS :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE: HON. LADY JUSTICE IMMACULATE BUSINGYE** 20 **BYARUHANGA**

#### **RULING**

This application was brought by way of Summons in Chambers under Section 218 of the Succession Act, Cap 268, Section 37 of the Judicature Act, Cap 16, Section 98 of the Civil Procedure Act- Cap 282, Order 1 rules 3 and 10 (4), Order 24 rules 4

- 25 and 12 and Order 6 rule 19 SI 171-1) seeking the following orders; - a) That leave be granted to the applicants to add the respondents and Moses Sendiwala as defendants to Civil Suit No. 343 of 2018. - b) That letters of administration to the estate of the late Moses Sendiwala be granted to Susan Sendiwala limited for the purpose of representing the estate 30 in Civil Suit No. 343 of 2018.

c) That letters of administration to the estate of the late Joyce Rita Ziribagwa Kamya be granted to Ntege Dennis for the purpose of representing the estate in civil Suit No. 343 of 2018.

- d) That Janat Nansubuga be struck off as a plaintiff in the main suit. - 35 e) That leave be granted to the applicants to amend the plaint in civil Suit No. 343 of 2018. - f) That costs of this application be provided for.

This application is supported by an affidavit in support deponed and sworn by the 2 nd applicant, **Edward Nkugwa**. The grounds of the application are laid out in the 40 application and the affidavit in support of the application but briefly they are the following;

- 1. That the applicants filed Civil Suit No. 343 of 2018 (the main suit) as beneficiaries of the estate of the late Paulo Bakunga against the administrators of the estate and a one Joyce Rita Ziribagwa Kamya. - 45 2. That some of the contested property in that suit included land comprised in Singo Block 425 plots 1-17, land at School road measuring 0.984 hectares in Mityana District. - 3. That whilst the main suit in here was still on-going, the 1st, 2nd and 3rd respondents, Joyce Rita Ziribwagwa Kamya and Sendiwala Moses filed a suit 50 in the High Court of Uganda Mubende over the same suit of land executed a consent in the same suit and consequently transacted and disposed the suit land. - 4. That the applicants have obtained pertinent facts which arose subsequent to the filing of the main suit herein which materially affect the reliefs sought by 55 the applicants in the main suit thereby necessitating the amendment of plaint. - 5. That Joyce Rita Ziribwagwa Kamya died intestate in the month of March, 2024 during the pendency of the main suit and no one has petitioned for grant of letters of administration to her estate. The 5th respondent is her son.

- 6. That Moses Sendiwala too died intestate during the pendency of the main suit and nobody has petitioned and obtained letters of Administration to his estate. The $4^{th}$ respondent is his widow. - 7. That Janat Nansubuga, the 4^th plaintiff in the main suit has since passed on. - 8. That the application is not made malafide. - 9. That the amendment does not occasion prejudice or injustice to the respondents which cannot be compensated by an award of costs. - 10. That the amendment is necessary for the purpose of determining the real questions in controversy between the parties by this Honourable Court. - 11. That the amendment seeks to avoid a multiplicity of suits /proceedings and enable this Honourable Court answer all questions before it. - 12. That this application has been brought before this Honourable Court without inordinate delay. - 13. That it is in the interest of justice, equity and fairness that this application is granted with the orders sought here in.

The application was undefended since the respondents did not file an affidavit in reply. 75

### **Background to the application**

The applicants herein together with Jonathan Nsubuga instituted Civil Suit No. 343 of 2018 against Nsubuga Mutaka Robert Cyprian, Kijjambu Isaya, Kizito Israel and Joyce Rita Ziribagwa Kamya for order among others, the revocation of letters of

Administration issued to the 1^st-3^rd defendants vide Administration Cause No. 1091 80 of 2015, an order that the 1^st-3^rd defendants surrender to court the grant of letters of administration and all documents of title, property and or income from the estate of the late Paulo Bakunga, that the 1^st- 3^rd defendants submit to court a full and true updated inventory of all the assets and liabilities of the estate of the deceased as well

- 85 as a full and updated inventory of all assets in their possession, appoint a new administrators consented to by the beneficiaries, order the Registrar of Titles to cancel the names of the defendants from the certificates of title of all the estate property of the late Paulo Bakunga as well as costs of the suit. - That applicants contend that they are grandchildren of the late Paulo Bakungu who passed away on 5 90 th December 1938 after which his son Paul Nsubuga Kamya Lujumbura Bakunga was appointed the heir of his late father in regard to administering his father's estate. The applicants contended that Paul Nsubuga Kamya Lujumbura Bakunga passed away on 19th December 1978, after which the deceased's daughter Joyce Rita Ziribagwa Kamya (4th defendant) was issued with 95 letters of administration of the late Paul Nsubuga Kamya Lujumbura Bakunga's estate. The applicants' point of contention in the main suit is that the 4th defendant alienated, sold and distributed the estate of not only her father but also of that belonging to her grandfather Paulo Bakungu when she transferred some properties belonging to the late Paulo Bakungu's estate into her names hence intermeddling in 100 the estate of the latter.

That on 8th February 2016, the 1st - 3 rd defendants (Nsubuga Mutaka Robert Cyprian, Kijjambu Isaya, and Kizito Israel) were issued with letters of administration for the estate of the late Paulo Bakunga by Hon. Justice Wilson Masalu Musene.

The defendants denied the plaintiffs' contentions in their written statements of 105 defence. Upon perusal of the record of court, I have observed that the main suit (HCCS No. 343 of 2018) is under hearing in this very court, however the progress of the suit has stalled owing to the fact that Joyce Rita Ziribagwa Kamya (4th defendant) has since passed away and so has Janat Nansubuga (4th plaintiff) as well as Moses Sendiwala all while during the pendency of the main suit hence, the

110 applicants' institution of the instant application to amend the pleadings and add parties to replace the deceased parties as aforementioned.

### **Representation**

During the hearing of this application, the applicants were represented by Counsel Nelson Frank Lwiise while the 1st - 3 rd defendants were represented by the Counsel 115 Lawrence Muwonge.

# **Preliminaries**

During the hearing of the instant application, counsel for the applicants informed this court that they were withdrawing the instant application as against the 1st, 2nd , 3 rd and 4th respondents and only maintaining the 5th respondent (Ntege Dennis) with

120 a prayer that he be added as a party to the main suit HCCS No. 343 of 2018 as a substitute for the 4th defendant (Mrs. Joyce Rita Ziribagwa Kamya) since she passed away and the 5th defendant is the son to the Mrs. Joyce Rita Ziribagwa Kamya.

## **Order 25 rule 1 of the Civil Procedure Rules** stipulates that;

*"The plaintiff may at any time before the delivery of the defendant's defence,* 125 *or after the receipt of that defence before taking another proceeding in the suit (except any application in chambers) by notice in writing wholly discontinue his or her suit against all or any of the defendants or withdraw any part or parts of his or her alleged cause of complaint, and thereupon he or she shall pay the defendant's costs of the suit, or if the suit is not wholly discontinued the* 130 *costs occasioned by the matter so withdrawn. Upon the filing of the notice of discontinuance the costs shall be taxed, but the discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.*

## **Sub rule 2 provides that;**

*Except as in this rule otherwise provided, it shall not be competent for the* 135 *plaintiff to withdraw or discontinue a suit without leave of the court, but the court may, before or at, or after hearing upon such terms as to costs, and as to any other suit, and otherwise as may be just, order the action to be discontinued or any part of the alleged cause of complaint to be struck out."*

In the instant case, the applicant is withdrawing the application against the 1st - 4 th respondents and intends to maintain the same against the 5th 140 respondent only. Since counsel sought leave of court to do the same before the court's final pronouncement, issue no reason why the same should not be granted and the same is so granted.

### **Decision**

By virtue of the powers vested in this court under Order 15 rule 5 of the Civil 145 Procedure Rules, it has been resolved that the issues for determination are ;

- *1. Whether the late Joyce Rita Ziribagwa Kamya's son Ntege Dennis can be appointed the late Joyce Rita Ziribagwa Kamya's Legal representatives for the purpose of pursuing Civil Suit No. 343 of 2018.* - *2. Whether the late Janat Nansubuga can be struck off as plaintiff in the main* 150 *suit.* - *Determination*

*Whether the late Joyce Rita Ziribagwa Kamya's son Ntege Dennis can be appointed the late Joyce Rita Ziribagwa Kamya's Legal representatives for the purpose of pursuing Civil Suit No. 343 of 2018.*

155 **Order 24 rule 4 (1) of the Civil Procedure Rules** provides as follows;

"*Where one of two more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court on an application made for that purpose shall cause the*

160 *Legal representative of the deceased defendant to be made a party and shall proceed with the suit. (emphasis on the underlined and highlighted part)* If I am to subject this provision to the *literal rule* of statutory interpretation, it is my understanding that the deceased must have a Legal representative whom the court shall substitute for the deceased so that the suit can be heard and disposed of.

165 In the instant case, the applicant deposed in paragraph 7 of the affidavit in support of the application that the 4 th defendant in the main suit Mrs. Joyce Rita Ziribagwa Kamya died in March 2024, after which her former lawyers Simon Tendo Kabenge Advocates wrote to this Honorable court informing it of the same and that they no longer had instructions to act on her behalf and the said letter was attached as 170 annexture 'A' to the affidavit in support of the application.

It is the applicant's contention that Mr. Ntege Dennis is a son to the late Mrs. Joyce Rita Ziribagwa Kamya as that same should be appointed administrator of the deceased's estate for the purpose of representing the said estate in HCCS No. 343 of 2018. I have observed that on 24th April 2025, the Hon. John Eudes Keitirima issued 175 letters of Administration to Musisi Enock Stephen (son), Ntege Dennis Abraham (son) (5th defendant herein) and Kamya Flavaia Lydia (daughter) for the estate of the Late Joyce Rita Ziribagwa Kamya vide Administration Cause 1408 of 2024.

**Order 24 rule 5 of the Civil Procedure Rules** provides that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff, 180 or a deceased defendant, the question shall be determined by Court. This provision is meant to secure representation for the deceased whose cause of action survives even after the deceased's demise.

According to the case of *Okway John Kimbo versus Oddia Nuru & Anor H. C. M. A No. 39 of 2016,* Hon. Justice Stephen Mubiru held that upon the demise of a litigant 185 before the final determination of a suit by or against him or her, where the cause of

action survives the litigant, Section 222 (now 218) of the Succession Act permits the grant of letters of Administration limited to the suit.

**Section 218 of the Succession Act** provides that;

*When it is necessary that the representative of a deceased is made a party to* 190 *a pending suit and the executor or person entitled to administration is unable or willing to act, letters of administration may be granted to the nominee of a party in the suit for the purpose of representing the deceased in that suit or in any other cause or suit which may be commenced in the same or in any other court between the parties, touching the matters at issue in that cause or suit* 195 *and until a final decree shall be made in it, and carried into complete execution.*

HCCS No. 343 of 2028 is currently under hearing before this very court and the the same could not proceed unless a legal representative was appointed to represent the Late Joyce Rita Ziribagwa Kamya who is now deceased. As noted above, the 5th 200 respondent was appointed as one of the administrators of the late Joyce Rita Ziribagwa Kamya's estate together with his siblings Musisi Enock Stephen (son) and Kamya Flavia Lydia (daughter).

**Sections 176 and 188 of the Succession Act** provide that administrators of the deceased's estate shall be the legal representatives of the deceased and all the rights 205 and liabilities of the deceased shall be vested in his administrators. With this in mind and amidst the evidence adduced above, it is my finding that Musisi Enock Stephen (son), Ntege Dennis Abraham (son) (5th defendant herein) and Kamya Flavaia Lydia (daughter) are the legal representatives of the Late Joyce Rita Ziribagwa Kamya by virtue of being issued with letters of administration of the deceased's estate and 210 hence shall be jointly substituted as the defendants in HCCS No. 343 of 2018 in

place of their late mother Mrs. Late Joyce Rita Ziribagwa Kamya. In the premises this issue is resolved in the affirmative.

*Whether the late Janat Nansubuga can be struck off as plaintiff in the main suit.*

## **Order 24 rule 1 of the Civil Procedure Rules** stipulates that;

## 215 *"The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues."*

In a case where one of the plaintiffs or defendants dies during the subsistence of civil proceedings, however the cause of action survives or continues, **Order 24 rule 2** of the Civil Procedure Rules enjoins this court to make an entry on the court record and

220 the suit shall proceed at this instance with the surviving plaintiff or defendants, whatever the case maybe.

According to paragraph 17 of the affidavit in support, the deponent deposed that Janat Nansubuga, the 4th plaintiff in the main suit passed away, however the cause of action survives or continues to the surviving plaintiffs, a fact that was not disputed

225 by the respondents. In the case of **John Kaye versus Attorney General Constitutional Court Application No. 25 of 2012,** the Constitution Court held *inter alia,* that, "… *It is settled law hat where certain facts are sworn to in the affidavit, the burden to deny them is on the other party and that in case of failure to do so, they are presumed to have been accepted.* "With the above at hand, I find merit in 230 this application since the cause of action continues to survive despite the demise of the 4 th plaintiff in the main suit and there is no evidence to the contrary.

**Order 6 rule 19 of the Civil Procedure Rules** empowers this court to amend pleadings at any stage of the proceedings, allow either party to alter or amend his or her pleadings in such manner and on such terms as may be just and all such 235 amendments shall be made as may be necessary for the purpose of determining the

**9 |** P a g e

real questions in controversy between the parties. In light of the aforementioned, I find that there is need to amend the pleadings in HCCS No. 343 of 2018 to substitute the Late Joyce Rita Ziribagwa Kamya with the Administrators of her estate as well as strike Janat Nansubuga's name from the plaint in the above mentioned suit as 4^th plaintiff.

In summary, I order as follows;

- i. The application is allowed. - The 4^th plaintiff in HCCS No. 343 of 2018 Late Joyce Rita Ziribagwa ii. Kamya is substituted with the holders of letters of Administration issued vide Administration Cause No. 1408 of 2024 being Musisi Enock Stephen (son), Ntege Dennis Abraham (son) and Kamya Flavia Lydia (daughter). - iii. An entry be entered on the court record that the Janat Nasubuga died and has been struck off the plaint in HCCS No. 343 of 2018 as the $4^{th}$ *plaintiff.* - The cause of action in H. C. C. S No. 343 of 2018 continues and survives $iv.$ to the $1^{st}$ - $3^{rd}$ plaintiff. - The applicants are granted leave under Order 6 rule 19 of the Civil $\mathcal{V}$ . **Procedure Rules to make necessary amendments to the pleadings in Civil** Suit No. 343 of 2018 to remove Janant Nansubuga as 4^th plaintiff in HCCS No. 343 of 2018 as well as substitute the Late Joyce Rita Ziribagwa Kamya as 4^th defendant and replace her with the Administrators of her estate being Musisi Enock Stephen, Ntege Dennis Abraham and Kamya Flavia Lydia as defendants not later than ...... - *Civil Suit No. 343 of 2018 shall be mentioned on the 16^th September 2025* vi. 260 *at* 12.30*pm*.

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## *vii. There shall no order for costs.*

I so order.

Ruling delivered via ECCMIS this 4 th day of July 2025.

**Immaculate Busingye Byaruhanga Judge**

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