Wakilii

Dr Hamlet Kabushenga v Kiriiia (UK) Ltd and Others [2022] UGHC 267

High Court · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Miscellaneous application for security for costs and preliminary objections to affidavits in the underlying civil suit
Decision
Application dismissed; substantive issues deferred to trial

Observed later treatment

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Holding

The court held that an advocate with knowledge of the facts may swear an affidavit in accordance with Order 19 Rule 3 of the Civil Procedure Rules where the advocate is not a potential witness and the affidavit is not on contentious matters requiring cross-examination. Issues 2 to 5 raised matters of fact requiring evidence at full trial and were deferred to final judgment. The application for security for costs was dismissed as oppressive and designed to stifle a claim with reasonable prospects of success, noting that mere poverty of a plaintiff is not sufficient ground for ordering security for costs.

Outcome

Application dismissed; substantive issues deferred to trial

Facts

The Applicant, Dr Hamlet Kabushenga, was Director of the 4th and 5th Respondents (Great Lakes Regional University Ltd and Chifcod Social Enterprise Ltd). The 1st to 3rd Respondents (Kiriiia (UK) Ltd, Uganda Development Initiative, and Protestant Church of Eppingen) are charity organizations that allegedly made donations to the 4th and 5th Respondents. The underlying civil suit seeks an order that the Applicant account for all money disbursed to him, his nominees and agents on account of his office as Director. The Applicant resigned by letter dated 21 April 2020, acknowledging support by the 1st and 2nd Respondents. The Applicant filed a miscellaneous application raising preliminary objections to affidavits sworn by the Respondents' advocate and seeking security for costs, arguing that the 1st to 3rd Respondents are charity organizations with no property of their own and unable to pay costs if he succeeds.

Issues

  1. Whether the Affidavit in Reply and supplementary Affidavits of David Semakula Mukiibi are proper.
  2. Whether MMAKS Advocates have instructions to represent the 4th and 5th Respondents.
  3. Whether the suit by the 4th and 5th Respondents/plaintiffs is maintainable or ought to be struck out.
  4. Whether the 1st, 2nd and 3rd Respondents/plaintiffs have a cause of action against the Applicant.
  5. Whether the 1st and 3rd Respondents are non-existent entities and incapable of maintaining the present suit.
  6. Whether the 1st to 3rd Respondents should pay security for costs.

Orders

  • The affidavits sworn by David Semakula Mukiibi are proper in the circumstances of this matter.
  • Issues 2 to 5 are deferred for determination in the final judgment in Civil Suit 19 of 2022.
  • The application for security for costs is dismissed.
  • Costs shall abide the cause.

Rules and key headnotes

Evidence — Affidavit Evidence — Advocate Swearing Affidavit — Propriety
An advocate with knowledge of the facts of a matter before court may swear an affidavit in accordance with Order 19 Rule 3 of the Civil Procedure Rules where the advocate is not a potential witness and the affidavit does not concern contentious matters on which the advocate could be cross-examined, and does not require authorization by the advocate's clients.
Civil Procedure — Preliminary Objections — Matters of Fact — Deferral to Trial
Where preliminary objections raise matters of fact that require the court to go beyond the pleadings and require evidence to be adduced by all parties, determination of such issues must wait for hearing at full trial to avoid preempting the main suit and causing a miscarriage of justice.
Civil Procedure — Security for Costs — Discretion of Court — Tests Applied
The power to order security for costs is purely discretionary and must be exercised in very special circumstances taking into account the nature, purpose and circumstances of the case, including the claimant's prospects of success, whether the application is made oppressively to stifle a claim with reasonable prospects of success, and whether the claimant's impecuniosity has been satisfactorily proved.
Civil Procedure — Security for Costs — Poverty of Plaintiff — Insufficient Ground
Mere poverty of a plaintiff is not by itself a ground for ordering security for costs, for if it were so, poor litigants would be deterred from enforcing their legitimate rights through the legal process.

Legislation cited (2)

Cases cited (4)

  • Lwamboga v Uganda v Semanda Simon and Others (HCMA 490 of 2017)
  • GII Concerned (U) Ltd v A.K. Detergents (U) Ltd (MA 7 of 1999)
  • Parkinson v Triplan Ltd [1973] QB 604
  • Lwamboga v Ibrah [1976] HCB 379

Full judgment

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

Dr Hamlet Kabushenga v Kiriiia (UK) Ltd and Others 2022 UGHC 267 (29 September 2022)
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.