Wakilii

Hon Lokeris v Kamol and Anor (Election Petition No. 1 of 2021)

High Court · [2021] UGHC 54 · 2021 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging parliamentary election result dismissed on preliminary objection
Decision
Petition dismissed on preliminary objection for incompetence

Observed later treatment

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Holding

An election petition that is required by law to be supported by affidavit is invalid and incompetent where the affidavit is commissioned by an advocate whose practising certificate had expired at the time of commissioning. An advocate who has ceased to hold a valid practising certificate cannot lawfully act as Commissioner for Oaths. Documents commissioned by such an advocate are invalid and of no legal effect. An election petition filed with an invalid affidavit collapses for want of evidential support as required by law. The court cannot permit the petitioner to file a fresh petition months after the statutory thirty-day period has expired, as this would contravene the Parliamentary Elections Act and undermine the electoral process.

Outcome

Petition dismissed on preliminary objection for incompetence

Facts

The petitioner challenged the parliamentary election result for Dodoth East County Constituency held on 14 January 2021, in which the first respondent was declared winner with 7,903 votes against the petitioner's 7,892 votes — a margin of 11 votes. The petitioner filed an election petition supported by an affidavit commissioned by Mr. Komakech, an advocate, on 12 March 2021. At the time of commissioning the affidavit, Mr. Komakech's practising certificate had expired. He renewed his practising certificate on 18 March 2021, six days after commissioning the petitioner's affidavit. The respondents raised a preliminary objection that the petition was invalid and incompetent because the affidavit in support was commissioned by an advocate without a valid practising certificate and therefore without authority to act as Commissioner for Oaths.

Issues

  1. Whether the election petition was validly and competently before court given that the affidavit in support was commissioned by an advocate whose practising certificate had expired.
  2. Whether an advocate whose practising certificate has expired has authority to act as Commissioner for Oaths.
  3. What the effect is on the validity of an election petition when the supporting affidavit is commissioned by a person without authority to administer oaths.

Orders

  • Preliminary objection upheld.
  • Election petition dismissed.
  • Costs awarded to the two respondents.

Rules and key headnotes

Civil Procedure — Affidavits — Commissioner for Oaths — Authority
An advocate who is commissioned by the Chief Justice under the Commissioner for Oaths (Advocates) Act ceases to be a Commissioner for Oaths the moment his practising certificate expires.
Civil Procedure — Affidavits — Validity — Effect of Invalid Commission
An affidavit commissioned by an advocate whose practising certificate has expired is invalid and of no legal effect. All acts which an advocate performs in his capacity as Commissioner for Oaths after the period of grace has expired are invalid.
Electoral Law — Election Petitions — Procedural Requirements — Supporting Affidavit
Under section 60 of the Parliamentary Elections Act and Rules 3(c) and 4(8) of the Parliamentary Elections (Interim Provisions) Rules, an election petition filed with an affidavit commissioned by a person without authority to administer oaths collapses for want of evidential support as required by law.
Electoral Law — Election Petitions — Time Limits — Effect of Striking Out
Where an election petition is required by law to be filed within thirty days after publication of election results in the gazette and is found to be incompetent and struck out, the court cannot permit the petitioner to file a fresh petition several months later, as this would be illegal and in contravention of the Parliamentary Elections Act and would set a bad precedent for electoral processes.
Administrative Law — Statutory Compliance — Substantive Law — Effect of Article 126(2)(e)
Article 126(2)(e) of the Constitution, which mandates that substantive justice shall be administered without undue regard to technicalities, cannot cure a petition and affidavit in support filed in contravention of substantive law, as that Article was not created or intended to defeat the law.

Legislation cited (10)

Cases cited (7)

  • Otim Nape George William v Ebil Fred and Another (Election Petition No. 17 of 2011)
  • Kabogere Coffee Factory v Haji Twahibu Kigongo (Supreme Court Civil Application No. 10 of 1993)
  • Bakunda Darlington v Dr. Kinyatta Stanley and Another (Civil Appeal No. 27 of 1996)
  • The Returning Officer, Iganga District and Another v Haji Muluya Mustaphar (Civil Appeal No. 13 of 1997)
  • Prof. Syed Huq v The Islamic University in Uganda (Civil Appeal No. 47 of 1995)
  • Kamurali Jeremiah Birungi v Nathan Byanyima and Another (Election Petition No. 0002 of 2021)
  • Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye and Another (Election Petition Appeal No. 92 of 2016)

Full judgment

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

Hon Lokeris v Kamol and Anor (Election Petition No. 1 of 2021) [2021] UGHC 54 (31 August 2021)
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.