Wakilii

Bakunda v Dr. Kinyatta and Another (Election Petition 18 of 1996)

High Court · [1996] UGHC 64 · 1996 Application Dismissed, Petition Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to amend election petition arising from High Court Election Petition No. 18 of 1996
Decision
Election petition struck out

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An election petition accompanied by an affidavit commissioned by an advocate without a valid practising certificate is fundamentally defective and does not constitute a valid petition. Under rules 3 and 4(8) of the Parliamentary Elections (Election Petitions) Rules 1996, the affidavit is an integral part of the petition. Where the affidavit is invalid, there is no petition to amend. The court refused the application to amend and struck out the petition.

Outcome

Election petition struck out

Facts

The petitioner participated in parliamentary elections in Kinkizi East Constituency at the end of June 1996. Following the publication of results on 5 July 1996, he filed an election petition in Kabale District Registry against the first respondent (the declared winner) and the second respondent (the Returning Officer). The petition was transferred to Kampala High Court. On 12 July 1996, the petitioner filed an affidavit in support of his petition, which was commissioned by an advocate who had no valid practising certificate at that date. The first respondent applied for further and better particulars. Before the hearing date of 9 September 1996, the petitioner applied to amend the petition by filing a fresh affidavit properly commissioned, on the basis that the original affidavit was defective. The respondents opposed the amendment, arguing that without a valid affidavit, there was no valid petition to amend.

Issues

  1. Whether an election petition accompanied by an affidavit commissioned by an advocate without a valid practising certificate can be amended to substitute a properly commissioned affidavit.
  2. Whether an election petition lacking a valid accompanying affidavit constitutes a valid petition capable of amendment under the Parliamentary Elections (Election Petitions) Rules 1996.

Orders

  • Application to amend the election petition dismissed.
  • Election Petition No. 18 of 1996 struck out for being fundamentally defective.
  • Petitioner to pay costs of the application to the respondents.

Rules and key headnotes

Electoral Law — Election Petitions — Validity of Petition — Effect of Invalid Affidavit
Under rule 3 of the Parliamentary Elections (Election Petitions) Rules 1996, an election petition includes the affidavit required to accompany it. Where the affidavit is invalid because it was commissioned by an advocate without a valid practising certificate, there is no valid election petition in existence.
Civil Procedure — Amendment — No Amendment Where No Valid Pleading Exists
A court cannot allow an amendment designed to bring into existence what is not there. Where a petition or pleading is fundamentally defective and discloses no valid cause of action or is legally non-existent, no amount of amendment can cure the defect.
Administrative Law — Legal Practitioners — Practising Certificate — Effect of Documents Filed by Advocate Without Valid Certificate
Documents signed and filed by an advocate who has not acquired a valid practising certificate outside the period of grace (31 December to 1 March) are invalid and of no legal effect.

Legislation cited (5)

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

Cases cited (8)

  • East Bakery v Castellino [1958] EA 461
  • Haji Kassan v Radevjee [1943] JEACA 10
  • Kizza v Attorney General (1986) HCB 71
  • Habib Jaffer v Singh [1962] EA 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 v Dr. Kinyatta and Another (Election Petition 18 of 1996) [1996] UGHC 64 (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.