Wakilii

Katoto v Kato and Another (Election Petition Appeal No. 23 of 2021)

Court of Appeal · [2022] UGCA 209 · 2022 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court ruling striking out an election petition on preliminary objections of law
Decision
Striking out of the petition set aside; matter remitted to the High Court for trial by another judge on its merits.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a commission granted to an advocate as Commissioner for Oaths does not automatically expire with the annual practising certificate; the principal affidavit was therefore not defective. Further, under the Parliamentary Elections Act an election petition can stand without a valid accompanying affidavit because allegations may be proved by other civil-proceedings evidence under section 64. The court set aside the striking out of the petition and remitted the matter for trial by another judge, but upheld the trial court's expunging of affidavits filed out of time and those introducing unpleaded matters, and faulted the failure to give reasons for the certificate of two counsel.

Outcome

Striking out of the petition set aside; matter remitted to the High Court for trial by another judge on its merits.

Facts

The appellant, the first respondent and four others contested the seat of Member of Parliament for Katerera County Constituency during the general elections of 14 January 2021. The first respondent was declared the winner. The appellant filed Election Petition No. 4 of 2021 in Mbarara High Court seeking to nullify the results, alleging the first respondent lacked the requisite academic qualifications and that the election was marred by non-compliance including multiple voting, ballot stuffing, voter intimidation and bribery. The respondents raised three preliminary objections: that nine affidavits were filed out of time without leave; that certain affidavits introduced unpleaded matters; and that the principal affidavit was commissioned by an advocate whose practising certificate had expired. The trial judge upheld the objections, expunged affidavits, held the principal affidavit defective and struck out the petition as a nullity unsupported by a valid affidavit, awarding a certificate of costs for two counsel without reasons.

Issues

  1. Whether the trial judge erred in expunging the appellant's nine affidavits for having been filed out of the time granted by court without leave.
  2. Whether an affidavit commissioned by an advocate without a valid practising certificate is defective, and whether such defect renders the election petition a nullity.
  3. Whether Section 14A of the Advocates Act applies to remedy an affidavit commissioned by an advocate without a valid practising certificate in an election petition.
  4. Whether the trial judge erred in awarding a certificate of costs for two counsel without giving reasons.
  5. Whether the trial judge erred in declining to evaluate the remaining evidence after striking out the principal affidavit.
  6. Whether the trial judge erred in severing the appellant's additional affidavits for departing from matters pleaded in the petition.

Orders

  • The appeal partly succeeds.
  • The order of the High Court declining to validate the affidavits filed out of time is upheld.
  • The order expunging paragraphs introducing unpleaded matters from the affidavits filed on 9 August 2021 is upheld.
  • The orders striking out the petition and the accompanying affidavit with costs are set aside.
  • The matter is sent back to the High Court for trial by another judge on its merits.
  • Each party shall bear its costs in the Court of Appeal; costs in the High Court shall abide the outcome of the trial on the merits.

Rules and key headnotes

Election Petitions — Affidavits Filed Out of Time — Exercise of Judicial Discretion
Court-ordered timelines for filing affidavits in an election petition, set with the consent of counsel, are court directives that must be observed, and a trial court properly exercises its discretion in expunging affidavits filed out of time without leave where no satisfactory explanation is given and the expeditious disposal of the petition would be prejudiced.
Commissioner for Oaths — Validity of Commission — Effect of Expiry of Annual Practising Certificate
The commission granted to an advocate as a Commissioner for Oaths under section 1 of the Commissioner for Oaths (Advocates) Act does not automatically terminate on the expiry of the annual practising certificate issued under section 11 of the Advocates Act; it remains valid until revoked by the Chief Justice or until the holder ceases to practise as an advocate.
Election Petitions — Accompanying Affidavit — Effect of Defective Principal Affidavit on Competence of Petition
A defective or invalid principal affidavit accompanying an election petition does not automatically render the petition under section 60 of the Parliamentary Elections Act a nullity, because the Act defines an election petition without reference to the accompanying affidavit and section 64 permits allegations to be proved by other forms of evidence available in ordinary civil proceedings.
Advocates Act — Section 14A Protection of Clients — Requirement of Client-Advocate Relationship
The protection afforded by section 14A of the Advocates Act applies only where a client-advocate relationship exists; a deponent whose affidavit is commissioned by a Commissioner for Oaths is not thereby a client of that advocate and cannot invoke section 14A, since a Commissioner for Oaths is barred from commissioning documents in matters in which he acts as advocate for a party.
Costs — Certificate for Two Counsel — Duty to Give Reasons
A court exercising its discretion under Regulation 41(1) of the Advocates (Remuneration and Taxation of Costs) Regulations to certify costs for more than one counsel must give reasons for doing so, and a failure to give reasons amounts to injudicious exercise of discretion that an appellate court cannot uphold.
Election Petitions — Affidavits as Evidence — Departure from Pleadings
Affidavits filed in support of an election petition constitute evidence rather than pleadings, and a party is bound by the grounds set out in the petition and cannot introduce fresh issues or new matters through affidavits; such offending paragraphs may properly be expunged.

Legislation cited (21)

Cases cited (30)

  • Attorney General and Hon. Nyombi Peter v Uganda Law Society (Miscellaneous Cause No. 321 of 2013)
  • Suubi Kinyamatama v Robinah Ssentongo (Election Petition Appeal No. 92 of 2016)
  • Pallock House Ltd Vs Nairobi Wholesalers Ltd. (No.00Z t1%2l E.A. 172
  • In re WT Potts, Ex parte Epstein Vs The Trustee and the Bankrupt, [1935] 1 Ch 334,341
  • Wicks V. DPP (1947) A.C 362
  • Chebrot Steven Chemoiko v Soyekwo Kenneth and Electoral Commission (Election Petition Appeal No. 56 of 2016)
  • Tamale Julius Konde v Ssenkabuga Isaac and Electoral Commission (Election Petition Appeal No. 75 of 2016)
  • Muyanja Lutaaya v Kenneth Lubogo and Another (Election Petition Appeal No. 82 of 2016)
  • Kibekelerya James v Waira Kyewalabye and Another (Election Petition Appeal No. 97 of 2016)
  • Amrit Goyal v Harichand Goyal and 3 Others (Civil Application No. 109 of 2004)
  • Bakunda Darlington v Kinyatta Stanley and Another (Civil Appeal No. 27 of 1996)
  • The Returning Officer, Iganga and Another v Hajji Muluya Mustaphar (Civil Appeal No. 13 of 1997)
  • Rao and others, (1956)1 MLJ 40
  • Kyagulanyi Ssentamu v Yoweri Museveni Tibuhaburwa and 2 Others (Civil Miscellaneous Application No. 1 of 2021)
  • Mutembuli Yusuf v Nangomu Moses Musamba and Electoral Commission (Election Petition Appeal No. 43 of 2016)
  • Mbagadhi Fredrick and Another v Nabwiso Frank (Election Petition Appeal No. 14 & 16 of 2011)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Akuguzibwe Lawrence Vs Muhoozi ... No.22 of 2016
  • Kizza Besigye v Yoweri Museveni Kaguta (Presidential Election Petition No. 1 of 2001)
  • Sitenda v Njuba and Another (Election Petition Appeal No. 26 of 2007)
  • Commissioner General Uganda Revenue Authority v Meera Investments Ltd (Civil Appeal No. 22 of 2007)
  • Pandya Vs R [1957] EA 336
  • Executive Director NEMA v Solid State Ltd (Supreme Court Civil Appeal No. 15 of 2018)
  • Mbogo Vs Shah [1968] EA 93
  • Trans Africa Assurance Company Ltd v Cimbria (EA) Ltd (Civil Appeal No. 11 of 2001)
  • Ananura John Bosco v Electoral Commission and Kaboro Kiza Isimbwa (Election Petition No. 8 of 2016)
  • Prof. Syed Huq v Islamic University in Uganda (Supreme Court Civil Appeal No. 47 of 1995)
  • Lokeris Samson v Electoral Commission and Komolo (Election Petition Appeal No. 9 of 2021)
  • Ogeno Okwir v Transocean (U) Ltd (Civil Appeal No. 52 of 1999)
  • Francis Butagira v Deborah Namukasa (Supreme Court Civil Appeal No. 6 of 1989)

Full judgment

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Katoto v Kato and Another (Election Petition Appeal No. 23 of 2021) [2022] UGCA 209 (13 July 2022)
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.