Male v Kayondo and Another (Election Petition Appeal No. 47 of 2021)

Observed later treatment

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Holding

The Court of Appeal held that affidavits supporting an election petition commissioned by an advocate without a valid practising certificate are defective, but the defect is curable. Section 14A(1)(b)(ii) of the Advocates (Amendment) Act protects an innocent litigant from the errors of an errant advocate and entitles the litigant to be allowed time to make good the defect by filing fresh affidavits, without the need for leave and without any time restriction once attention is drawn to the defect. The trial Judge erred in striking out the petition rather than permitting rectification. A petition can stand without a supporting affidavit, which is brought in witness of and not as an integral part of the petition. The appeal succeeded.

Outcome

Appeal allowed; trial Judge's order striking out the petition set aside; petition remitted to the High Court for determination on its merits before a different Judge

Facts

Male Wilson and five other candidates contested the directly-elected Member of Parliament election for Mukono South Constituency held on 14 January 2021. Fred Kayondo, the 1st respondent, was declared the winner by the Electoral Commission, the 2nd respondent. The appellant petitioned the High Court at Mukono seeking nullification of the election, citing inconsistencies and illegalities in the election and campaign process. At the hearing, the 1st respondent raised a preliminary objection that the affidavits supporting the petition had been commissioned by a Commissioner for Oaths who had no valid practising certificate at the material time. The trial Judge upheld the objection, ruling that the affidavits were invalid and that the petition was incompetent and incurably defective, and struck it out with costs. The appellant had recommissioned the affidavits and refiled them, and had sought leave to rectify the defect, but the trial Judge declined. The appellant appealed.

Issues

1. Whether affidavits supporting an election petition that were commissioned by a Commissioner for Oaths without a valid practising certificate are incompetent and incurably defective.
2. Whether the petitioner was an innocent litigant entitled to the protection of section 14A(1)(b)(ii) of the Advocates (Amendment) Act and to be allowed time to file fresh affidavits.
3. Whether such a defect is curable under Article 126(2)(e) of the Constitution.

Orders

• The order of the trial Judge dismissing the petition is set aside.
• Election Petition No. 001 of 2021 is remitted to the High Court to be determined on its merits before a different Judge.
• Each party shall bear its own costs in this court and in the court below.

Rules and key headnotes

Legislation cited (15)

• Constitution of Uganda Article 126(2)(e)
• Advocates Act Cap 267 s.14
• Advocates Act Cap 267 s.66(1)
• Advocates (Amendment) Act s.14A(1)(b)(ii)
• Commissioners for Oaths (Advocates) Act s.4(3)
• Advocates Professional Conduct Regulations reg.11
• Advocates Professional Conduct Regulations reg.14
• Advocates Professional Conduct Regulations reg.31(1)
• Parliamentary Elections Act s.60
• Parliamentary Elections (Interim Provisions) Rules S.I 141-2 rule 3
• Parliamentary Elections (Interim Provisions) Rules S.I 141-2 rule 4(8)
• Parliamentary Elections (Interim Provisions) Rules S.I 141-2 rule 15(1)
• Parliamentary Elections (Interim Provisions) Rules S.I 141-2 rule 26
• Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 30
• Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 32(1)

Cases cited (16)

• Besigye v Museveni (Election Petition No. 1 of 2001)
• Besigye v Museveni (Election Petition No. 1 of 2006)
• Banco Arabe Espanol v Bank of Uganda [1999] 2 EA 22
• NEC v Mukisa Foods (Civil Appeal No. 42 of 1997)
• Wanambwa v Wanjusi Wasieba (Election Petition Appeal No. 1 of 2005)
• Namuju v Sserwanga (Election Petition Appeal No. 62 of 2016)
• Syed Huq v Islamic University in Uganda (Civil Appeal No. 47 of 1995)
• Kinyamatama v Sentongo Nakasirye (Election Petition Appeal No. 92 of 2016)
• Kibulwe v Mbazzi Kiggye (Originating Summons No. 10 of 2018)
• Uganda Railways Corp v Ekwaru & Ors [2008] HCB 61
• Makula International v Cardinal Nsubuga & Anor (1982) HCB 12
• Omusotsi v The Returning Officer Mumias East Constituency, Independent Electoral and Boundaries Commission and Benjamin Washiali Jomo Election Petition No.9 Of 2017
• Ochwa v Ogwari (Election Petition Appeal No. 16 of 2021)
• Pandya v R [1957] E A 336
• Okeno v Republic [1972] E. A 32
• Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Kiwanuka v Sekimuli and Another (Miscellaneous Application No. 2168 of 2021)

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