Nasirumbi and Others v Wafula and Others (MISCELLANEOUS APPLICATION NO. 21 OF 2024) [2025] UGHC 186 (7 February 2025)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT TORORO MISCELLANEOUS APPLICATION NO. 21 OF 2024 ARISING FROM HIGH COURT CIVIL SUIT NO. 23 OF 2022 FORMERLY CIVIL SUIT NO. 032 OF 2018 AT HIGH COURT, MBALE

- 1. NASIRUMBI ROSEMARY - 2. BARASA CHRISTOPHER - 3. OKUMU MARTIN - 4. BARASA JOSEPH - 5. BWIRE COSTANT - 6. WANYAMA EMMANUEL :::::::::::::::::::::::::::::::::::::::: APPLICANTS

VERSUS

- 1. WAFULA CHARLES - 2. OPONDO JOHN - 3. WAFULA EDMOND - 4. GUSINO JOSEPH - 5. EGESA ANTHONY :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS

RULING

BEFORE: HON DR. HENRY I. KAWESA

- 1. This application was brought by way of a notice of motion under Section 33 of the Judicature Act Cap. 16; Section 98 of the Civil Procedure Act Cap. 282; and Order 52 Rules 1 and 2 of the Civil Procedure Rules S. I 71-1. - 2. It seeks orders that: - a. An order dated 24th of April, 2024 dismissing Civil Suit No.0023 of 2022 at Tororo, and applications thereunder, be set aside. - b. An order reinstating Civil Suit No. 0023 of 2022 at Tororo, and applications thereunder, be made in favour of the applicants.

- c. An order to stay proceedings of Civil Suits No. 53 of 2017 and 072 of 2018, both at the Chief Magistrates Court of Busia at Busia until determination of this application. - d. An order quashing proceedings of Civil Suit No.0023 of 2022 at Tororo and the applications before the Assistant Registrar on 24th/ 04/ 2024. - e. Costs of this application be provided for. - 3. The application is supported by an affidavit deposed to by the 3rd applicant, on his behalf and on behalf of others; and is opposed by the affidavit in reply deposed to by the 5th respondent. I note that the applicants filed a rejoinder to the said reply deposed to by the 3rd applicant as well.

Representation

- 4. The applicants are represented by Counsel Mututa Martin of M/s Odeke & Co. Advocate; and the respondents are represented by Counsel Were David of M/s Were Associated Advocates. - 5. When the matter came up for hearing on the 11th of December, 2024, Counsel for the respondents raised a preliminary objection to the effect that the affidavit in support offends Order 19 r.3 of the Civil Procedure Rules. He argued that the same is argumentative, contains irrelevant matters of fact and raises points of law. Counsel specifically referred court to paragraphs 3 to 13; 16, 19, 24, 25, 26, 27, 29, 30, 31, 33, 34, 35, 36, 37, 46, and 47. - 6. Further, the respondents' Counsel argued that the impugned affidavit is incompetent, abusive, an abuse of court process and ought to be struck out. In support, he cited Re:Bukeni Gyabi Fred [1999] KALR 918 where court struck out an affidavit for being argumentative and containing matters of law which the deponent was unable on his own knowledge to prove.

- 7. The respondents' Counsel also implored court to strike the application, once the affidavit in support is struck out. - 8. In response, Counsel for the applicants argued that the objection lacks legal basis. That the paragraphs in the impugned affidavit are in such a way that the deponent enumerated the events as they proceeded. That these were matters in the knowledge and belief of the deponent; and that the affidavit and application is properly before court. - 9. On the prayer to strike out the application and affidavit, the applicant's Counsel argued that the law under Section 98 of the Civil Procedure Act allows court, if the provisions of Order 19 Rule 3 of the Civil Procedure Rules are offended, to severe and proceed with the non-offensive paragraphs. He prayed that the application be heard on its merits. - 10. In rejoinder, the respondents' Counsel argued that whereas court have held that offensive paragraphs can be severed, it is only possible where it would leave the others standing. That in this case, over 40 paragraphs, out of which 30, offend the law; and that each case should be determined on its circumstances. He reiterated the prayer that the affidavit and application be struck out.

Court's Decision.

- 11. I have read the contents of the impugned affidavit in support, contained in 51 paragraphs in total. It suffices to state that the fact that there are 51 paragraphs does not render the affidavit defective. - 12. I note that most of the averments are accounts of the events that led to the dismissal of Civil Suit No.0023of 2022, and the filing of Civil Suit No.53 of 2017 and No.72 of 2018 at the Chief Magistrate's Court of Busia at Busia. The accounts, are largely, allegations of fact. Nevertheless, I note that the contents in paragraphs 12, 19, 37, 47, and 50 contain conclusions of law, which the deponent is likely unable on his own knowledge to prove. Similarly, paragraphs 46 and 49

contains prayers to court, which are certainly not matters of fact. In that spirit, therefore, I partly agree with Counsel for the respondents and find that paragraphs 12, 19, 37, 46, 47, 49, and 50 contain matters of law and are argumentative thereby offending Order 19 Rule 3 of the Civil Procedure Rules.

- 13. The above notwithstanding, Counsel for the parties are aware that, in principle, court can severe offending parts of an affidavit and accept the rest of it, provided the affidavit remains meaningful (Col (Rtd) Dr. Kizza Besigye Vs Yoweri Kaguta Museveni & another Election Petition No. 1 of 2001). In this case, severance paragraphs 12, 19, 37, 46, 47, 49, and 50 would leave the rest of the affidavit in support meaningful. Therefore, the said paragraphs are hereby severed, and the rest of the affidavit accepted. - 14. I am mindful of the respondents Counsel's argument that the affidavit in support also contains irrelevant matter. However, the merit of the argument cannot be determined at this point, without deciding the merits of the application. This is so because a question relevancy of an assertion depends on the issue at hand. Accordingly, the argument is rejected, with due respect. - 15. In conclusion, the preliminary objection is overruled, without costs. The application shall now be determined on its merits.

I so order.

HON. DR. HENRY I. KAWESA JUDGE 07/02/2025

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