have nothing to suffer if the injunction is issued. The affidavit that the respondent has started
selling products in Uganda has not been rebutted by the respondent. The respondent says its
products are made for the Ugandan market. He reiterated his prayers for the grant of a temporary
injunction with costs.
I have carefully considered the pleadings of the parties, the evidence on record, inclusive of the
exhibits of products and the submissions of counsel. Learned Ccounsel Bamwite firstly attacked
the affidavit in support of the application and contended that it rendered the applicants
application defective and that the application ought to fail on this ground alone. Such a
submission if upheld would have the effect of disposing of the applicant‟s application in its
entirety and shall be tried first in terms of order 15 rules 2 of the Civil Procedure Rules. Order 15
rules 5 provides that where issues of fact and issues of law arise in the same suit and the court is
of the opinion that the case or any part of it may be disposed of on issues of law only, it shall try
those issues first.
Counsel relied on the affidavit in reply sworn by Eddy Freddie Kasajja on 5th July 2011 opposing
the application. The affidavit in support of the application is sworn by Esther Kilonzi on the 21st
April of 2011. The respondent‟s counsel pointed out that the affidavit indicates that it was sworn
at Kampala but was signed by a public notary in Kenya Nairobi. He wondered how an affidavit
sworn to in Kampala was commissioned by a Notary Public in Nairobi Kenya. He submitted that
the Oaths Act cap 19 section 5 requires a person swearing an affidavit to appear before the
person administering the oath. He contended that section 5 of the Oaths Act was not complied
with. He concluded that the defect is fatal to the applicant‟s application. This is because a Notary
Public of Kenya cannot administer oath in Uganda. Counsel pointed out that this is the main
affidavit in support of the chamber summons and the subsequent affidavits do not rectify this
defect. Secondly Counsel contended that are inconsistencies and contradictions both in the
application and affidavits which point to falsehoods in the application as to when the applicant
started dealing in the products. In paragraph 2 of the affidavit of Esther Kilonzi, it is averred that
the applicant has been trading in the products since, but she does not mention when the applicant
started dealing in the products. On the other hand and in the body of the chamber summons, it is
in the pleading of the applicant that the applicant has been trading in the products since 2003.
Again in the affidavit of Charles Njenga sworn on 2nd June paragraph 2 thereof, it is averred that
the applicant started trading in the products of the applicant since 2001. Counsel contended that
these were major contradictions and should not be overlooked. He further referred to the
affidavit in rejoinder sworn by Charles Njenga on 27th July 2011 wherein is attached a deed of
assignment executed in July 2009. Counsel contended that the date when the applicant started
dealing in the products the subject matter of this application as to whether in 2001, 2003 or 2009
is in issue. Counsel concluded that these contradictions and inconsistencies rendered the
application incompetent. They show that the applicant did not come to court with clean hands.
Counsel relied on Bitaitana vs. Kananura [1977] HCB 34 that a defective affidavit rendered an
application defective.