Wakilii

Bakunda Darlington v Dr. Kinyatta B.G.S. and Another (Election Petition 18 of 1996)

High Court · [1996] UGHC 102 · 1996 Application Dismissed; Petition Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to amend an election petition following discovery that the original affidavit was commissioned by an advocate without a valid practising certificate
Decision
Election petition struck out for being fundamentally defective

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that an affidavit commissioned by an advocate without a valid practising certificate is invalid and of no legal effect. Since under the Parliamentary Elections (Election Petitions) Rules 1996, an affidavit is an integral part of an election petition, an invalid affidavit means there is no valid petition to amend. The court refused the application to amend, struck out the petition as fundamentally defective, and awarded costs to the respondents. The court reasoned that allowing amendment would circumvent the statutory 30-day limitation period for filing election petitions.

Outcome

Election petition struck out for being fundamentally defective

Facts

Following the June 1996 Parliamentary Elections, the petitioner filed an election petition against the two respondents in respect of the Kinkizi East Constituency election. The petition was later transferred from Kabale District registry to the High Court in Kampala. Before the substantive hearing, the petitioner discovered that the affidavit accompanying his petition had been commissioned by an advocate who had no valid practising certificate on 12 July 1996. The petitioner applied by Chamber Summons to amend the petition by filing a fresh affidavit properly commissioned, arguing the defect was inadvertent and the original commissioner had neglected to renew his practising certificate. The first respondent opposed, arguing that the defective affidavit meant there was no valid petition to amend and that allowing amendment would circumvent the statutory 30-day limitation period for filing election petitions under section 90(3) of the Parliamentary Elections (Interim Provisions) Statute 1996.

Issues

  1. Whether an election petition accompanied by an affidavit commissioned by an advocate without a valid practising certificate can be amended to cure the defect.
  2. Whether an affidavit commissioned by an advocate without a valid practising certificate is valid and of legal effect.
  3. Whether amendment that would allow filing of a valid petition after the statutory 30-day period has expired would defeat the legislative intention.

Orders

  • Application to amend the election petition dismissed.
  • Election petition struck out for being fundamentally defective.
  • Costs of the application awarded to the respondents.

Rules and key headnotes

Electoral Law — Election Petitions — Validity of Affidavit — Effect of Defective Affidavit
An election petition accompanied by an affidavit commissioned by an advocate without a valid practising certificate is fundamentally defective and cannot be cured by amendment, as the affidavit is invalid and of no legal effect.
Electoral Law — Election Petitions — Definition — Affidavit as Integral Part
Under the Parliamentary Elections (Election Petitions) Rules 1996, the definition of 'petition' includes the affidavit required to accompany it, meaning an affidavit is an integral part of the petition and one cannot exist without the other.
Civil Procedure — Amendment — Limitation — Creating Something That Does Not Exist
A court cannot allow an amendment designed to bring into existence what does not exist; where a petition is fundamentally defective due to an invalid affidavit, there is no valid petition to amend.
Civil Procedure — Practising Certificates — Period of Grace — Effect of Expiry
Documents commissioned by an advocate without a valid practising certificate outside the period of grace (between 31 December and 1 March) are invalid and of no legal effect.

Legislation cited (5)

  • Civil Procedure Rules Order 6 rule 18
  • Parliamentary Elections (Election Petitions) Rules 1996 rule 17
  • Parliamentary Elections (Election Petitions) Rules 1996 rule 3
  • Parliamentary Elections (Election Petitions) Rules 1996 rule 4(8)
  • Parliamentary Elections (Interim Provisions) Statute No. 4 of 1996 s.90(3)

Cases cited (8)

  • East Bakery v Castellino (1958) E.A. 461
  • Haji Kassan v Radevjee [1943] 1 EACA 10
  • Kizza v Attorney General (1986) HCB 71
  • Habib Jaffer v Singh (1962) E.A. 557
  • Kaingana v Dabobubu (1986) HCB 59
  • Ntambi v. A.G.
  • Alfred Olwora v Uganda Central Co-operative Union Ltd (Civil Appeal No. 25 of 1992)
  • Kayondo v Attorney General [1988-90] HCB 127

Full judgment

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

Bakunda Darlington v Dr. Kinyatta B.G.S. and Another (Election Petition 18 of 1996) [1996] UGHC 102 (16 September 1996)
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.