Wakilii

KCB Uganda Limited v Kalema (Miscellaneous Application No. 704 of 2018)

High Court · [2019] UGCOMMC 230 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection to a miscellaneous application arising from a substantive commercial suit
Decision
Application dismissed as incompetent following the striking out of the defective supporting affidavit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court Commercial Division held that an affidavit deponed by counsel in support of an application was incurably defective for failure to disclose the source of information regarding factual averments not within the deponent's knowledge. The court distinguished this non-disclosure breach from falsehoods which can be severed. Non-disclosure of the source of information is a fundamental breach rendering the entire affidavit defective and incapable of being cured by severance.

Outcome

Application dismissed as incompetent following the striking out of the defective supporting affidavit

Facts

KCB Bank Uganda Limited filed a miscellaneous application arising from a commercial suit. The application was supported by an affidavit sworn by Terence Kavuma, counsel for the applicant. The respondent's counsel raised a preliminary objection arguing that paragraph 5 of the affidavit contained factual averments about alleged wrongs committed by defendants but failed to disclose the source of this information. The respondent contended that this omission rendered the affidavit incurably defective under Order 19 Rule 3 of the Civil Procedure Rules. The applicant's counsel argued that the affidavit was deponed by counsel in full conduct of the matter in support of a point of law, and that any offending paragraph could be severed while preserving the rest of the affidavit.

Issues

  1. Whether the Affidavit in support of the Application was incurably defective for failure to disclose the source of information contrary to Order 19 Rule 3 of the Civil Procedure Rules.

Orders

  • Affidavit in support struck out.
  • Preliminary objection upheld.
  • Application dismissed with costs to the respondent.

Rules and key headnotes

Civil Procedure — Affidavits — Non-disclosure of Source of Information — Order 19 Rule 3 CPR
An affidavit based on information must disclose the source of that information, and failure to do so renders the affidavit incurably defective because disclosure is not simply a matter of form but goes to the essential value of the affidavit.
Civil Procedure — Affidavits — Distinction Between Non-disclosure and Falsehood
Non-disclosure of the source of information in an affidavit is distinguished from a falsehood. While falsehoods can be cured by severing the offending paragraphs and saving the rest of the affidavit, non-disclosure of the source of information is a breach of Order 19 Rule 3 CPR that renders the affidavit incurably defective and cannot be cured by severance.
Evidence — Affidavit Evidence — Counsel Deponing to Facts Beyond Personal Knowledge
Where counsel depones to statements of fact in an affidavit which counsel cannot have had knowledge of by virtue of their role as counsel but only as information from the parties or elsewhere, such averments are based on information and the source of the information must be disclosed in compliance with Order 19 Rule 3 CPR.
Civil Procedure — Incompetent Applications — Effect of Striking Out Supporting Affidavit
Where the affidavit in support of an application is struck out as incurably defective, the application cannot stand unsupported and is therefore incompetent and liable to be dismissed.

Legislation cited (1)

Cases cited (5)

  • Pacific Summit Hotel v DFCU Bank and Others (Miscellaneous Application No. 09 of 2013)
  • Allan Isingoma v Alex Muhumuza and 2 Others (Criminal Case No. 29 of 1992)
  • Katuramu Vs Matiya Kizza
  • PremChand Richard v Ouamy Services Ltd (1969) EA 514
  • Eseza Namirembe v Musa Kizito (1972) ULR 8

Full judgment

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

KCB Uganda Limited v Kalema (Miscellaneous Application No. 704 of 2018) [2019] UGCommC 230 (22 March 2019)
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.