Wakilii

Barungi and Another v Kawesa and Another [2024] UGHC 1212

High Court · 2024 Preliminary Objection Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out counterclaim arising from Civil Suit No. 1003 of 2023, heard as a preliminary objection to counsel's representation
Decision
Preliminary objection upheld; 1st Applicant directed to obtain new counsel before the substantive application can proceed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that an advocate cannot simultaneously act as counsel and witness in the same contentious matter under Regulation 9 of the Advocates (Professional Conduct) Regulations. The 2nd Applicant was disqualified from representing the 1st Applicant because he had authorised the 1st Applicant to depose an affidavit on his behalf, making him a witness in the proceedings.

Outcome

Preliminary objection upheld; 1st Applicant directed to obtain new counsel before the substantive application can proceed

Facts

The Applicants sought to strike out the Respondents' counterclaim in Civil Suit No. 1003 of 2023, arguing it was res judicata, disclosed no cause of action, and was an abuse of process. The 2nd Applicant, Muhangi George, is an advocate who represented both himself and the 1st Applicant. The Respondents raised a preliminary objection that Muhangi George was in conflict because he had given the 1st Applicant authority to depose an affidavit on his behalf, making him both counsel and witness. The court heard submissions on whether Regulation 9 of the Advocates (Professional Conduct) Regulations prohibited such dual representation in a contentious matter.

Issues

  1. Whether the 2nd Applicant (Muhangi George) could represent both himself and the 1st Applicant while also serving as a witness in the same matter.
  2. Whether Regulation 9 of the Advocates (Professional Conduct) Regulations applies to prevent an advocate from acting as both counsel and witness in a contentious matter.

Orders

  • Preliminary objection sustained.
  • The 2nd Applicant (Muhangi George) disqualified from representing the 1st Applicant.
  • The 1st Applicant directed to find another Advocate.
  • Application to proceed for hearing on its merits after the 1st Applicant obtains new counsel.

Rules and key headnotes

Legal Representation — Advocate as Witness and Counsel — Regulation 9 Advocates (Professional Conduct) Regulations
Regulation 9 of the Advocates (Professional Conduct) Regulations prohibits an advocate from appearing before any court in a matter in which the advocate will be required as a witness to give evidence, whether verbally or by affidavit. The exception for formal or non-contentious matters does not apply where the matter involves attack and defense between opposing parties.
Legal Representation — Contentious vs Non-Contentious Matters — Application of Regulation 9
A matter is contentious when it involves judicial proceedings comprising attack and defense between opposing parties, not merely ex parte proceedings. In contentious matters, an advocate who will be required to give evidence cannot continue to act as counsel.
Legal Representation — Disqualification of Counsel — Dual Role as Witness
Where an advocate has authorised another party to depose an affidavit on the advocate's behalf, the advocate becomes a witness in the proceedings and cannot simultaneously act as counsel for another party in the same matter, as this violates Regulation 9 of the Advocates (Professional Conduct) Regulations.
Professional Conduct — Conflict of Interest Distinguished from Incompatibility of Roles
Regulation 9 of the Advocates (Professional Conduct) Regulations deals with incompatibility of the role of advocate and witness in the same case, not conflict of interest. Conflict of interest is dealt with in Regulations 4 and 10 and requires proof of a previous fiduciary relationship and confidential information obtained from the party raising the objection.

Legislation cited (8)

Cases cited (6)

  • M/s Quality Uganda Ltd v Uganda Performing Rights Society & 4 Ors (HCCS No. 444 of 2019)
  • Henry Kaziro Lwandasa Vs Kyas Global Trading Co. Ltd
  • Hermon Tesfald Ghebrat v Marlin Advocates & Anor (HCMA No. 196 of 2020)
  • Ayebazibwe v Barclays Bank (U) Ltd (Civil Suit No. 162 of 2012)
  • Uganda Development Bank v Kasirye, Byaruhanga & Co. Advocates (SCCA No. 35 of 1994)
  • M.P Electronics Ltd & Anor v DFCU & Others (HCMA No. 510 of 2023)

Full judgment

↓ Download PDF

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

Barungi and Another v Kawesa and Another 2024 UGHC 1212 (4 January 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.