Page 88 of [1990–1994] 1 EA 83 (CAK)

On the liability the employer will be liable for the carelessness of his employee in executing his duty
which will place anybody in imminent danger. In this particular case, the appellant was not the one who
loaded the tractor with scrap metal, his duty being that of driving away the tractor after it had been
loaded. It is the fork-lift operator who stacked scrap metal negligently or carelessly without considering
that the heap of scrap metal unless properly secured would place the plaintiff in imminent danger. As he
drove away, he noticed that the load would fall on him. He had no other course open to him but to take
such a measure to avert the danger to himself. He cannot be expected to ignore the impending danger or
be expected to wait for the metal to fall on him which may cause him untold injuries. To state that the
plaintiff was negligent in the way he alighted from the tractor was to demand too much of him by
overlooking the fact that in a moment of passion one has to take quick decision of what to do to avoid the
danger and there is no time to think or to look for where to step in alighting but rather to jump and avoid
the danger, though in doing so he may hurt himself. In so doing he was taking steps to avoid more
danger. What if he had remained in the tractor and the metal, which eventually fell in the tractor, fell on
him and caused more injuries? In my view the steps the plaintiff took to avoid danger indicate that it
cannot be correctly said that he was negligent or contributed to his injuries.
The plaintiff’s evidence went unchallenged and did prove his case. On my part I would allow the
appeal and award the damages assessed by the trial Judge. I agree with the order proposed by the Chief
Justice.
Cockar JA concurred in the judgments of Hancox CJ and Gachuhi JA.

For the appellant:

For the respondent:

Gaso Transport Services (Bus) Ltd v Obene

Division: Supreme Court of Uganda at Mengo

[1] Civil procedure – Leave to amend statement of defence – Make application early – Factors to
consider in determining application.
Editor’s Summary
Akamba (U) Limited sold a bus to Joy Kusiime who, apparently, later resold it to the appellant. However,
there was no change of particulars after the respective sales.
In 1989, the bus was involved in an accident and the respondent, a passenger in the bus, allegedly
suffered injuries. The respondent therefore sued Akamba (U) Limited and the appellant. The appellant
stated, in its statement of defence, that it had been wrongly sued but it did not state the facts to support
this contention.
Page 89 of [1990–1994] 1 EA 88 (SCU)

The appellant’s advocate then raised a preliminary objection asking that the Plaint be rejected for not
disclosing any cause of action. The objection was dismissed. The advocate sought leave to appeal but this
application was also dismissed.
Later, Akamba (U) Limited was allowed to amend its statement of defence, after the matter had
started. The appellant also later made an application to amend its statement of defence after hearing one
of the witnesses who stated that the bus was sold to Gaso Transport Services Limited. The appellant
argued that the bus had been sold to Gaso Transport services Ltd, not itself and that it was not in
existence at the time of the accident.
This application was dismissed, hence this appeal.
Held – An application for leave to amend pleadings ought to be made promptly at the earliest stage in
litigation. The more advanced the progress of litigation the more difficult it will be for the applicant to
satisfy the Court that leave for amendment ought to be granted (Eastern Bakery v Castalino [1958] EA
461, British Indian General Insurance Co v Parma (GM) and Co [1966] EA 172 and Kara v Makam
(1950) 17 EACA 16 applied).
Courts generally give leave to amend pleadings rather than give judgments in ignorance of the facts
which ought to be known before rights are definitely decided. Steeds v Steeds [1899] 22 QBD 537
followed.
The governing principles in the exercise of discretion in allowing amendments are:
(i) The amendment should not work injustice to the other side. An injury that can be compensated by
costs is not treated as an injustice.
(ii) Multiplicity of proceedings should be avoided and amendments which avoid such multiplicity
should be allowed.
(iii) An application which is made mala fide should not be granted.
There is no evidence to show that the appellant’s blunder is such that allowing the amendment would
irreparably injure the respondent in his case, which injury cannot be made good by way of costs.
Application allowed.

Cases referred to in judgment

East Africa
British Indian General Insurance Company v Parma (GM) and Company [1966] EA 172 – AP
Cheleta Coffee v Melhsen [1966] EA 203
Eastern Bakery v Castelino [1958] EA 461 – AP
General Manager EA R and H v The Crstein [1968] EA 354
George v Priliin Auto Services (1955) 22 EACA 233
Jami Properties v Dar-es-Salaam [1966] EA 281
Jupiter Insurance v Hasham [1960] EA 562
Page 90 of [1990–1994] 1 EA 88 (SCU)

Kara v Makam (1950) 17 EACA 16 – AP

United Kingdom
Steeds v Steeds [1889] 22 QBD 537 – F
Steward v Northern Metropolitan Tram ways Limited [1886] 16 QED 558
Tidlsey v Harper [1978-9) 10 ChD 396

Judgment
Tsekooko JSC: This appeal is against the ruling and order of the High Court where on 29 April 1993,
the trial Judge dismissed an application by the present appellant for leave to amend the written statement
of defence of the appellant (who is the second defendant in the suit in the High Court).
The back ground to the appeal as gathered from the record of the trial Court is this. During 1987,
Akamba (U) Limited (first defendant in the suit) (hereinafter to be referred to as “Akamba”) sold a bus,
registration number UXS 106, to one Joy Kusiime. Change of the particulars of registration was not
effected following that sale. The bus plied between Kampala and Masaka. On 10 October 1989, the bus
was involved in an accident at or near KM 38, Masaka/Kampala Road. The respondent who claims to
have been a passenger in the bus allegedly sustained injuries. Consequently, he filed the suit in the High
Court against Akamba and the appellant or damages appears from evidence on record that Joy Kusiime
resold the bus to Gaso Transport Service Limited before the particulars of registration were changed
from Akamba to Joy Kusiime.
The two defendants duly entered appearance and filed their respective written statements of defence.
In its amended written statement of defence Akamba denied liability on the basis that the bus had been
sold to joy Kusiime but alternatively averred in paragraph 6 of that statement of defence that the accident
was caused by the actions of another vehicle (UWU 171). As for the appellant, it, interia, denied liability
and averred in paragraph 2 of its written statement of defence that it was wrongly sued although it did not
set out facts in support of the avernment that it was wrongly sued.
On 24 September 1992, the suit came up in High Court for hearing. Mr Mulindwa who then
represented the appellant in the High Court raised a preliminary objection asking the trial Judge to reject
the plaint on the ground that the plaint did not disclose a cause of action. He was overruled. Then Mr
Mulindwa unsuccessfully applied for leave to appeal against that ruling.
Thereafter five (5) issues were framed on the basis that the appellant was a proper party to the suit.
The respondent as plaintiff testified and called two witnesses. The respondent and PW3 testified that the
bus (UXS 106) belonged to Gaso Transport Services. Actually at some point the respondent referred to
Gaso Transport Services Bus. The defendant called Haji Zaid Mukasa (DW1) who testified that the bus
belonged to Gaso Transport Service for whom he
Page 91 of [1990–1994] 1 EA 88 (SCU)

worked and that on the day of the accident he worked on the bus as its conductor on behalf of Gaso Bus
Services. Here it should be noted that neither counsel (for plaintiff nor for each defendant) asked DW1 or
indeed PW1 or PW3 to explain any differences between appellant Gaso Transport Services (Bus)
Limited and Gaso Transport Services Limited or Gaso Transport Services. The hearing of evidence
ended. Each side closed its case. Thereafter the case was adjourned to 12 January 1993 for submissions.
On 12 January 1993, Akamba sought leave to call another witness. When granting leave on 19
January 1993, the trial Judge allowed Akamba to amend its written statement of defence before calling
the additional witness and at the same time he (the judge) suggested that the appellant and the respondent
could file replies to the amended written statement of defence of Akamba “if need arises” Akamba filed
the amended written statement of defence on or about 21 January 1993 and called the additional witness
A Asghar Khan (DW2) on 26 March 1993 to which date the case had been caused listed for that purpose.
It is that witness who revealed that the bus had in fact been sold to Joy Kusiime in 1987. By 26 March
1993, the appellant had not replied to the amended written statement of defence by Akamba.
After evidence of DW2, Mr Mulindwa applied for leave to adduce evidence to show that there were
tow companies where names started with “Gaso Transport Services”. One of them, Gaso Transport
Services Limited, was in existence at the time of the accident while the appellant was not, Mr Mulindwa
submitted. This was rejected by the trial Judge because:
“The evidence intended to be adduced by (defendant number 2 (sic) raised new issues beyond the pleadings
on record. The defendant number 2 is not entitled at this stage to call such evidence without amendment of the
pleadings.”

Mr Mulindwa rather half heartedly took opportunity thus suggested and applied for adjournment so as to
make a formal application for leave to amend. Counsel for the other parties opposed the application. The
application was dismissed.
The case was then adjourned to 14 April 1993 for submissions. In the interval, Mr Mulindwa some
how filed an application on behalf of the appellant seeking leave to amend its written statement of
defence. The application was heard and rejected on 29 April 1993. The learned Judge granted leave for
this appeal to be made against that ruling.
The memorandum of appeal had included Akamba as second appellant but Akamba was struck out
after we were satisfied that Akamba did not in fact appeal.
There is only one ground in the memorandum of appeal. It reads that:
“The learned trial Judge erred in having found that the issue to be raised by the second defendant was
fundamental to the plaintiff’s claim to refuse to allow the second defendant to amend its written statement of
defence as the said amendment had a serious bearing on the plaintiff’s claim and on the second defendant’s
defence.”

The formulation of the ground of appeal is confusing. From a perusal of the ruling of the learned Judge
and the submissions of counsel for the appellant before us, it is clear that the complaint is that since the
judge found that the proposed amendment would have a serious bearing on the claim of the plaintiff as
well as on the defence of the second defendant, the learned Judge erred in refusing leave to amend the
written statement of defence of second defendant (that is, the appellant).
Page 92 of [1990–1994] 1 EA 88 (SCU)

The submissions of Mr Musinguzi, counsel for appellant hinged upon the evidence of DW2 (Ali
Asghar Khan), the General Manager of Akamba. DW2’s evidence is, as earlier stated, to the effect that
after Joy Kusiime purchased the Bus in 1987, she sold the same bus to “Gaso Transport Service” before
change of registration particulars of ownership were made from Akamba to her. DW2 further testified
that Mr Fred Kijjambu of Gaso Transport Services Limited had collected papers of the registration of the
bus on behalf of Gaso Transport Services Limited. DW2 denied knowledge of the appellant. He claimed
in effect that Joy Kusiime sold the bus to Gaso Transport Services Limited but not to the appellant. At
any rate that is what I understand to be the effect of the evidence of DW2.
The gist of Mr Musinguzi’s submission is that since the evidence of DW2 shows that the bus was sold
to Gaso Transport Services Limited who, were (presumably) in possession of the bus by 10 October 1989
(when the accident occurred) the appellant was wrongly sued because the appellant was not in existence
till 22 January 1990 that is, the day when Gaso Transport Services (Bus) Limited was incorporated.
Counsel referred us to the contents of the chamber summons and the two accompanying affidavits sworn
on 6 April 1993 by Mr Mulindwa and Miss Anne Mulindwa (the secretary/clerk in the firm) and which
formed material before the trial Judge. To Anne’s affidavit were attached copies of certificates of
incorporation of the two companies.
Annexture “A” relates to the incorporation of the appellant on 22 January 1990. Annexture “B” shows
that Gaso Transport Services Limited was incorporated on 7 December 1981.
Mr Musinguzi conceded that Mr Mulindwa (the appellant’s counsel in the High Court) erred:
(a) in not setting out either in the chamber summons or in the accompanying affidavits the names of the
directors of each company so as to demonstrate that the two companies are in actual fact managed by
different individuals or groups of individuals;
(b) by failing to attach to the chamber summon a copy of the proposed amend written statement of defence
for appellant;
(c) by failing to make prompt application for leave to make the proposed amendment to the written
statement of defence in as much as by 15 January 1993, Mr Mulindwa was aware of the existence of
the two separate “Gaso” Companies;
(d) by failing to take advantage of the judge’s suggestion on 19 January 1993 that second defendant
(appellant) and the respondent (plaintiff) could amend their pleadings after service upon them of the
reamended written.

Mr Musinguzi made a spirited submission in an effect to convince us that in spite of the omission of Mr
Mulindwa and the belated nature of the application in the Court below, under Order 6, rule 18 of the
Civil Procedure Rules, leave to file an amended written statement of defence should have been allowed
as the amendment was necessary for the purpose of determining the real question in controversy between
the parties. Learned counsel cited Uganda Credit and Savings Bank v Yosam Muze [1960] EA 660;
Eastern Bakery v Castelino [1958] EA 461 and Tidlsey v Harper [1978-9) 10 ChD 396, in support of his
argument.
Mr Mugabi, who represented the respondent here and in the High Court opposed the appeal. Mr
Mugabi submitted that the appellant has not shown that in refusing the application for leave to amend the
trial Judge acted on wrong
Page 93 of [1990–1994] 1 EA 88 (SCU)

facts or principle to justify interference by this Court in the exercise of discretion by the trial Judge.
According to Mr Mugabi the written statement of defence of appellant was so detailed that the appellant
must, as I understood learned counsel, be taken to have been aware that it was the proper party to be
sued. Mr Mugabi further submitted that the application was so late that amendment of the written
statement of defence would cause injustice to the respondent. Mr Mugabi did not, however, specify what
actual or apprehended injustice the respondent would suffer in the event of the proposed amendment
being allowed.
Mr Mugabi’s submission that the appellant must have had full information of the existence of the two
companies early appears on face of it to be plausible. A superficial view of Mr Mulindwa’s various
submissions in the Court below and of the written statement of defence of the appellant appeared to
support this. Paragraph 2 of written statement of defence as pleaded by appellant to me appeared to cater
for appellant’s contentions and could have had a basis for calling the evidence sought.
The paragraph states:
“The second defendant denied the alleged liability and avers that it is wrongly sued wherefore the suit is
misconceived embarrassing and shall apply that the suit be dismissed/struck out/rejected.”

However, as stated earlier at the beginning of the hearing of the case, Mr Mulindwa on 24 September
1992, raised a preliminary objection claiming that the plaint did not disclose facts to show a duty of care
which the appellant owed, the respondent pleaded in the plaint. He was overruled. As opposed to that and
after DW2 gave his evidence on 26 March 1993 on behalf of Akamba to the effect that Joy Kusiime had
resold the bus to Gaso Transport Services Limited, Mr Mulindwa sought leave of Court to call a witness
whose evidence was to show that there existed two companies whose names each start with “Gaso
Transport Services”. Counsel wanted to establish that one of those companies was not in existence by 10
October 1989. Thus the preliminary objection cannot be construed so as to impute to the appellant
knowledge of the existence of the two companies. Upon further reflection, I took the view that the
problem may have been created by the advocate (Mr Mulindwa). Formulation of pleadings here is the
responsibility of Mr Mulindwa. I say so because of paragraph 3, 4, 5 and 6 of the same written statement
of defence. The appellant can hardly be credited with the manner of formulating pleadings so as to
provide for alternative defences in the manner it was done in this case.
It is true Order VI, rule 18 gives the High Court wide discretionary power to permit amendment of
pleadings to be made at any stage of the proceedings. Indeed as Mr Musinguzi pointed out, amendments
to pleadings may in appropriate cases be permitted as late as during appeal by an appellate court: See
McCoy v Allibhai (1938) 5 EACA 70, Jupiter Insurance v Hasham [1960] EA 562 and Jami Properties v
Dar-es-Salaam [1966] EA 281 at 285. However, it is now trite law (or rather a well established practice)
that courts are more flexible in allowing amendments whenever application for amendments are made
promptly at the earliest stage in the litigation. The more advanced the progress of litigation the more will
be the applicant to satisfy Court that leave for amendment ought to be granted. See Eastern Bakery v
Castalino [1958] EA 461, British Indian General Insurance Company v Parma (GM) and Company
[1966] EA 172 and Kara v Makam (1950) 17 EACA 16. According to these cases amendments can be
made on appeal.
Page 94 of [1990–1994] 1 EA 88 (SCU)

Mr Mugabi’s main ground for opposing the appeal is the generally accepted rule that an appellate
court will not interfere with the discretion of a judge in allowing or in disallowing an amendment to a
pleading unless it appears that in reaching his decision the judge proceeded upon wrong material or upon
a wrong principle: See George v Priliin Auto Services (1955) 22 EACA 233 and Eastern Bakery v
Castelino [1958] EA 461, Mbogo v Shah [1968] EA 93.
The chamber summons before the trial Judge contained eight grounds but the following are pertinent:
“1. That after search at the office of the Registrar of Companies on 15 January 1993 it was established that
the second defendant was incorporated on the 22 January 1990 (certificate true copy is attached
marked “A”).
2. That by reason of the said date of incorporation the second defendant company was not in existence on
10 October 1989 when the accident forming the subject matter of the main suit occurred whereof it
cannot be held responsible for acts complained of by the plaintiff/respondent – see paragraph 4 of the
plaint.
3. The said search also revealed that Gaso Transport services Limited was incorporated on the 7
December 1981 and it is still in existence (certificate true copy attached “B”).
4. That after first defendant had been allowed to amend its written statement of defence where upon
additional evidence was given and the witness disclosed that he was not aware of the existence of Gaso
Transport Services (bus) Limited but rather aware of Gaso Transport Services Limited on whose
behalf the Registration Book of UXS 106 was collected by one Fred Kijjambu on 24 February 1988
from Akamba (U) Limited after one Joy Kusiime had sold the Bus to Gaso Transport Service Limited.
5. That the amendment shall facilitate calling of necessary evidence.
6. That the said evidence revealed a new matter to the effect that there was no transaction between Joy
Kusiime and the second defendant.
7. That (in view of the foregoing) unless this application is granted the second defendant shall suffer
injustice should the plaintiff’s claim succeed.”

I think that the contents of paragraphs 1 to 4 and 6 in the summons should have formed the contents of
the accompanying affidavits because they are evidence in support of the application. Further in my view
the affidavit in support of the application which was based on the ground that the appellant did not exist
by 10 October 1989 should have been sworn by a knowledgeable and responsible officer or director of
the appellant. And as pointed out, the applicant never filed the proposed amended written statement of
defence. The learned Judge justifiably criticised the omission to attach to the application the proposed
amendment and the deficiencies in the two affidavits.
Again in my view he rightly criticised the appellant for its failure to make an early application for
amendment. Having said that, it should be noted that no affidavit was filed by the respondent to indicate
that in fact the appellant had been in existence by 10 October 1989 when the accident occurred.
In the course of his written ruling, the trial Judge referred to the following decisions on principles
applicable to amendment of pleadings:
(i) Waljee’s (U) Limited v Ramjis Punjambhas Bugerere Tea Estate Limited [1971] EA 188;
(ii) Steward v Northern Metropolitan Tram ways Limited [1886] 16 QBD 558;
(iii) Jupiter Insurance v Pajabali Hasham (supra);
(iv) Jami Properties v Dar-es-Salaam (supra);
Page 95 of [1990–1994] 1 EA 88 (SCU)
(v) Cheleta Coffee v Melhsen [1966] EA 203; and
(vi) General Manager EA R and H v The Crstein [1968] EA 354.

The learned Judge disapproved the conduct of the defence case right up till the application for
amendment was made. Thus he stated that:
“The case was conducted on the basis that defendant was the operator of motor vehicle registration number
UXS 106 and its employee was the driver of the said vehicle on the day of the tragic accident. This is born
out by Mr Mulindwa’s statement that he believed that the plaintiff was proceeding against the right party until
15 January 1993. The plaintiff has also all along been led to believe by defendant number two that it is the
right party. No explanation has been provided why defendant number two has acted this way. No suggestion
has been raised to the effect that this conduct was by over sight or inadvertence. Grounds four, five and six of
the application are to the effect that the evidence of DW2 raised a new matter to the effect that Joy Kusiime
sold the bus UXS 106 to Gaso Transport Services (Bus) Limited. I have no hesitation in rejecting these
grounds.”

The learned Judge gave his reasons for rejecting those grounds and continued:
“It would appear to be that defendant number two deliberately omitted to raise this would be fundamental
issue to the plaintiff’s claim in its written statement of defence. The matter was not raised at all in the agreed
issues. Defendant number 2 omitted to raise it when it was granted leave to amend its pleadings on 19 January
1993. If it had its way, defendant number two wanted to spring this into evidence at the last minute by
reopening its case after it had closed it.
In my view, without an adequate and convincing explanation of the various capes (sic) in the conduct of the
defendant number two and taking into account the stage at which this rather fundamental issue is intended to
be slotted, defendant number two2 does not deserve the indulgence of this Court in this matter . . .”

Whilst the learned Judge correctly criticised what is in reality an incompetent and shoddy fashion in
which the defence of the appellant was conducted, I think with respect that the learned Judge did not
address his mind to all the principles applicable in granting or refusing leave to amend. In that respect he
erred in refusing leave. I note that on 21 March 1993, Mr Mulindwa first applied for leave to adduce
additional evidence prompted by the evidence of DW2. In rejecting the application the learned Judge
stated that the appellant could not “call such evidence without amending pleadings,” yet the application
to amend was rejected when it was made. The learned Judge appears to have rejected the undoubtedly
belated application mainly because the proposed amendment would lead to a reopening of the case by the
appellant. Indeed if appellant had this design why did it not slot in that evidence before the close of the
defence case, that is, before Akamba made its own application on 12 January 1993 for leave to call
additional evidence of DW2. The learned Judges conclusion on this point, is with respect unfounded on
the facts.
Belated application to amend places a heavy burden on the applicant to convince the Court why he
never applied earlier but courts generally give leave to amend a defect in a pleading rather that give
judgment in ignorance of facts which ought to be known before rights are definitely decided; Steeds v
Steeds [1889] 22 QBD 537 at 542.
Bowen LJ in Cropper v Smith [1883] 26 ChD 700 at 711 expressed himself in a passage often cited in
the following words:
“It is well established principle that the object of the Court is to decide the rights of the parties and not to
punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance
with their rights . . . I know of no
Page 96 of [1990–1994] 1 EA 88 (SCU)
kind of error or mistake, which, if not fraudulent or intended to overreach, the Court ought not to correct, if it
can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake
of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace . . . It
seems to me that as soon as it appears that the way in which the party had framed his case will not lead to the
decision of the real matter in controversy, it is as much a matter or right on his part to have it corrected if it
can be done without injustice as any thing else is a matter of right.”

The editors of AIR Commentaries, the Code of Civil Procedure, Volume 3 (10 ed) at 130, commented on
Order VI, rule 17 of the Indian Civil Procedure Rules Order VI, rule 17 is identical to our Order VI, rule
18. The learned editors states:
“The rule gives a wide discretion to the Court to allow amendments necessary for the purpose of determining
the real matter in controversy between the parties.
The discretion is, however, a judicial one and not an arbitrary exercise of the power. Amendment cannot be
claimed as a matter of right or in all circumstances. The under which the prayer for amendment is to be
allowed cannot be exhaustively enumerated. It depends upon the facts of each individual case. But the
principle is to do substantial justice and not to punish the party on technical grounds.”

The following principles appear to be recognised as governing the exercise of discretion in allowing
amendments:
1. The amendment should not work injustice to the other side. An injury which can be compensated by
the award of costs is not treated as an injustice.
2. Multiplicity of proceedings should be avoided as far as possible and all amendments which avoid such
multiplicity should be allowed.
3. An application which is made mala fide should not be granted.
4. No amendment should be allowed where it is expressly or impliedly prohibited by any law” (for
example limitation actions).

In his ruling, the learned Judge criticised the appellant for failing to amend its statement of defence
pursuant to the order of the judge delivered on 19 January 1993. In that ruling the learned Judge had
ordered, inter alia, that:
“(3) If the need arises the plaintiff and defendant number two may file replies thereto within 15 days from
the date of service of the amended written statement of defence.” (by Akamba).

As it turned out, Akamba only amended paragraph 4 of its statement of defence in the following words:
“(4) Paragraphs 4 and 5 of the plaint are denied and in reply thereto the first defendant shall state that
motor vehicle registration number UXS 106 had been sold to one Joy Kusiime and delivered to her. It
is denied that the said Wilson Kamya was an employee of the first defendant and all the particulars of
negligence are not admitted.”

It is clear form the portion of the judge’s ruling which I have just reproduced above that any reply which
the appellant could have made was dependent on the contents of the proposed amendment by Akamba.
As can be seen from paragraph 4 of Akamba’s amended defence (reproduced above), there was
obvious need for the appellant to reply thereto in view or the contents of paragraphs 4 and 5 of the plaint
itself. Moreover the appellant’s application for leave to amend was prompted by or perhaps a sequel of
the evidence of DW2 but not based on the amendment of its defence by Akamba.
Page 97 of [1990–1994] 1 EA 88 (SCU)

In the present case, the Application to amend the written statement of defence was refused as I have
already stated on grounds of, in effect, the incompetence and, I think, for lack of diligence on the part of
counsel for the appellant. It is not easy on the facts to conclude that the application was made mala fide
or is barred by any law. Moreover counsel for respondent is not wholly free from blame. The record
shows that when testifying, PW1 and PW3 named the owners of the bus UXS 106 at time of accident to
be “Gaso Transport Services”. Left at that this could mean that the evidence of PW1 and PW3 referred to
either the appellant or that other company which was incorporated on 7 December 1981 which is now not
a party to the suit. In answer to a question raised by this Court.
Mr Mugabi stated from the bar that “we know it is the appellant”. That utterance is neither evidence
nor would it be sufficient proof that the right party is in fact and in law before the Court. Thus the
question of deciding the real controversy may ultimately depend on the joining of Gaso Transport
Services Limited or the substitution of it in place of the appellant.
DW2’s evidence to the effect that he had had no knowledge of the appellant is open to several
interpretations. One of such interpretations could be that he was not aware of the existence of the
appellant when the bus was sold.
There is no evidence as far as I can ascertain showing that the blunder of the appellant is such that
allowing the proposed amendment would irreparably injure the respondent in his case, which injury
cannot be made good by way of costs.
I think that on the facts and for purposes of deciding the real controversy, I would reluctantly interfere
with exercise of discretion by the trial Judge and allow the late application for leave to amend the written
statement of defence. I think also that this is a fit case where the appellant should meet the costs of the
respondent in this appeal.
I would accordingly allow the appeal, set aside the ruling and order of the learned trial Judge and
remit the case to the High Court for continuation of the hearing after the amendment has been effected.
I would order the appellant to amend and file its statement of defence within fifteen (15) days from
today. Appellant must serve the respondent and Akamba immediately thereafter. After service of the
amended written statement of defence on the two respondents and Akamba) the respondent shall be at
liberty to amend his plaint and Akamba (U) Limited and reamend its amended written statement of
defence.
I would award to the respondent costs of this appeal.
Manyindo DCJ and Odoki JSC concurred in the judgment of Tsekooko JSC.

For the appellant:

For the respondent:

Gatimu v Kimani