Wakilii

Etukoit William v Olejo Herbert and Another (Miscellaneous Applications No. 8 of 2024)

High Court · [2026] UGHC 15 · 2026 Application Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of decree pending determination of application for leave to appeal
Decision
Application struck out as incompetent for lack of a duly commissioned affidavit

Observed later treatment

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Holding

An uncommissioned affidavit is not an affidavit in law and constitutes a fatal defect that cannot be cured by the principle of substantive justice under Article 126(2)(e) of the Constitution. An application by notice of motion based on facts must be supported by a duly commissioned affidavit under Order 52 rule 3 of the Civil Procedure Rules. Without such an affidavit, the application is incompetent and must be struck out.

Outcome

Application struck out as incompetent for lack of a duly commissioned affidavit

Facts

The applicant filed an application seeking to stay execution of a decree in Civil Appeal No. 094 of 2016 pending determination of an application for leave to appeal. The application was supported by an affidavit deposed by the applicant but not commissioned by a commissioner for oaths. The respondents raised a preliminary objection that the affidavit was not duly commissioned and therefore the application was incompetent. The applicant's counsel argued that the failure to commission the affidavit was a procedural irregularity that could be cured under Article 126(2)(e) of the Constitution to ensure substantive justice.

Issues

  1. Whether an affidavit that is not commissioned by a commissioner for oaths can be relied upon as evidence in support of an application by notice of motion.
  2. Whether the failure to commission an affidavit is a procedural irregularity that can be cured under Article 126(2)(e) of the Constitution.

Orders

  • Application struck out.
  • Costs awarded to the respondents.

Rules and key headnotes

Evidence — Affidavits — Commissioning Requirements — Legal Status of Uncommissioned Affidavits
An uncommissioned affidavit is not an affidavit at all under the law and constitutes a fatal defect that goes to the substance of the matter, not merely a procedural irregularity.
Civil Procedure — Applications by Notice of Motion — Affidavit Requirements — Competence of Application
An application by notice of motion containing matters of fact that is unsupported by a duly commissioned affidavit is fatally defective and cannot stand in law.
Constitutional Law — Substantive Justice — Article 126(2)(e) — Limits of Application — Fatal Defects
The principle of substantive justice under Article 126(2)(e) of the Constitution cannot cure the fatal defect of an uncommissioned affidavit in support of an application by notice of motion; such a defect can only be cured where counsel discovers the anomaly and rectifies it before the application comes up for hearing.

Legislation cited (5)

Cases cited (1)

  • EAA Co. Ltd v UNBOS (Consolidated Miscellaneous Applications No. 965 & 1009 of 2023)

Full judgment

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

Etukoit William v Olejo Herbert and Another (Miscellaneous Applications No. 8 of 2024) [2026] UGHC 15 (13 January 2026)
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.