Wakilii

Kayunga Town Council v Nabawanuka Kevina (Miscellaneous Application 614 of 2024)

High Court · [2026] UGHC 673 · 2026 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out civil suit arising from earlier land dispute, on grounds of res judicata and limitation
Decision
Application dismissed as incompetent due to incurably defective supporting affidavit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application as incompetent after finding the supporting affidavit incurably defective. The affidavit was commissioned by an advocate employed by the same law firm representing the applicant, in contravention of section 5(1) of the Commissioner for Oaths (Advocates) Act. The court held that such a defect goes to the root of the affidavit's legality and cannot be cured under Article 126(2)(e) of the Constitution or section 14A of the Advocates Act, leaving the application without evidential foundation.

Outcome

Application dismissed as incompetent due to incurably defective supporting affidavit

Facts

The applicant Kayunga Town Council sought to strike out Civil Suit No. 217 of 2020 filed by the respondent Nabawanuka Kevina, arguing it was barred by limitation and res judicata. The respondent had previously filed Civil Suit No. 16 of 2005 before the Kayunga District Land Tribunal seeking a declaration of ownership and compensation for use of suit land. That matter was transferred to the Chief Magistrate's Court and registered as Civil Suit No. 46 of 2007 where it was disposed of. The respondent also filed Civil Suit No. 176 of 2010 which was dismissed for want of prosecution. The applicant contended that the current suit involved the same facts, parties, and subject matter as the earlier suits. The respondent argued that the earlier dismissal was due to her former lawyers' negligence and that trespass is a continuing tort not subject to the 12-year limitation period. The application was supported by an affidavit commissioned by Mr. Okuyo Henry, an advocate working with M/s JM Musisi Advocates, the same firm representing the applicant.

Issues

  1. Whether the applicant's affidavit is fatally incurable due to being commissioned by an advocate working with the same law firm representing the applicant.

Orders

  • Application dismissed with costs for being incompetent.

Rules and key headnotes

Affidavits — Commissioner for Oaths — Prohibition on Commissioning by Interested Advocate
An affidavit commissioned by an advocate employed by the same law firm representing a party to the proceedings contravenes section 5(1) of the Commissioner for Oaths (Advocates) Act and is incurably defective, rendering the application incompetent for lack of evidential foundation.
Affidavits — Interest of Commissioner — Scope of Prohibition
The prohibition in section 5(1) of the Commissioner for Oaths (Advocates) Act extends to any advocate employed by or practicing in the law firm representing a party, regardless of whether that advocate personally appears on the court record or conducts the matter, as such an advocate is deemed interested in the matter by virtue of their employment.
Affidavits — Defective Affidavits — Distinction Between Irregularity and Illegality
Courts distinguish between affidavits that are non-compliant with mandatory statutory requirements (which are incurably defective and must be struck out) and affidavits that are merely irregular or contain minor defects such as hearsay or missing dates (which may be corrected). An affidavit commissioned in violation of section 5(1) of the Commissioner for Oaths (Advocates) Act is not merely irregular but illegal and goes to the root of the affidavit's validity.
Affidavits — Defective Affidavits — Inapplicability of Section 14A Advocates Act
Section 14A of the Advocates Act (now section 19) applies only to cases where an advocate practices when their certificate is cancelled or suspended, or where an advocate is lawfully denied audience. It does not cure an affidavit commissioned in contravention of section 5(1) of the Commissioner for Oaths (Advocates) Act, as the issue concerns the commissioner's interest, not the validity of the advocate's practicing certificate.
Applications — Incompetent Applications — Effect of Incurably Defective Affidavit
Where the supporting affidavit to an application is found to be incurably defective, the application is left without evidential foundation and is rendered incompetent, warranting dismissal without consideration of the substantive merits.

Legislation cited (9)

Cases cited (13)

  • Kiiza Besigye v Y K Museveni & Anor (Presidential Election Petition No. 1 of 2001)
  • Lawrence Onama Obbo v Joseph Kasolo & Anor (Election Petition Appeal No. 55 of 2021)
  • Mpanga Farouk v Ssenkubuge Issac & Anor (Election Petition No. 15 of 2021)
  • Markly Vincent Okidi & 4 Others v Peter Odok W'oceng (High Court Electoral Petition No. 9 of 2011)
  • Nakatudde & Another v Makerere University (High Court Miscellaneous Cause No. 175 of 2019)
  • Okidi & 4 Others v Odok W (High Court Election Petition No. 9 of 2011)
  • Kaweesa v Uganda Free Zones Authority & Another (Civil Miscellaneous Application No. 454 of 2021)
  • Mpanga v Ssenkubuge & Others (Election Petition Appeal No. 13 of 2021)
  • Stephen M. Mogaka vs Independent Electoral and, Boundaries Commission & 2 others (Kenyan Election Petition No.2 of 2017)
  • James Francis Karuiki vs United Insurance Co. Ltd Civil Appeal No. 7450 of 2OOO
  • Kenya Federation of Labour & Another v. Attorney General & 2 Others Industrial Court of Kenya at Nairobi, Case No. 735 of 2012
  • Caltex Oil (Kenya) Limited vs. New Stadium Service Station Limited & Another [2OO2] eKLR
  • J. B. Magara v Katehangwa (High Court Miscellaneous Application No. 143 of 2000)

Full judgment

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

Kayunga Town Council v Nabawanuka Kevina (Miscellaneous Application 614 of 2024) [2026] UGHC 673 (15 June 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.