Wakilii

Nyakecho v Electoral Commission and Another (Election Petition Appeal No. 14 of 2021)

Court of Appeal · [2022] UGCA 158 · 2022 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from a High Court ruling dismissing an election petition on a preliminary objection
Decision
Appeal substantially succeeded; High Court orders set aside and election petition remitted for fresh hearing before another judge

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that an objection to the validity of an affidavit supporting an election petition, based on the commissioning advocate lacking a valid practicing certificate, is a point of law that may be raised at any time. However, the Chief Registrar's uncertified photocopy letter was wrongly admitted from the Bar without allowing rebuttal, violating natural justice, and was declared void. Crucially, an advocate does not cease to practise merely by failing to renew a practicing certificate; only removal, suspension or striking off ends the power to commission oaths. As no such evidence existed, the affidavit was valid. The appeal substantially succeeded, the petition was ordered heard afresh, and costs to the appellant.

Outcome

Appeal substantially succeeded; High Court orders set aside and election petition remitted for fresh hearing before another judge

Facts

The appellant, second respondent and five others contested the Member of Parliament seat for Tororo North County Constituency in the 14 January 2021 parliamentary elections. The second respondent polled 9,674 votes against the appellant's 9,563 and was declared elected. The appellant petitioned the High Court challenging the results. At the hearing, counsel for the second respondent raised a preliminary objection that the petitioner's sole supporting affidavit was commissioned by advocate Owakukiroru Raymond, who allegedly lacked a valid practicing certificate at the time (10 March 2021), his certificate having been issued on 19 March 2021. Counsel relied on a letter attributed to the Chief Registrar dated 6 September 2021. The trial judge upheld the objection, found the affidavit invalid and the petition unsupported, dismissed the petition with costs, and refused to apply the Advocates Act remedial provisions. The appellant appealed on ten grounds, contesting admission of the letter, the finding that the point was one of law, and the costs order.

Issues

  1. Whether the objection that the affidavit supporting the petition was commissioned by an advocate without a valid practicing certificate was a point of law that could be raised after the close of evidence.
  2. Whether the Chief Registrar's letter was properly admitted into evidence to prove the commissioner lacked a valid practicing certificate.
  3. Whether an advocate loses power to commission oaths merely by not having renewed a practicing certificate for the year.
  4. Whether the trial judge erred in failing to apply section 14A of the Advocates Act and Article 126(2)(e) of the Constitution to rectify the affidavit.
  5. Whether the trial court erred in awarding costs against the petitioner.

Orders

  • The orders of the trial Judge in the election petition are set aside.
  • The election petition shall be heard afresh before another Judge of the High Court.
  • The appeal is allowed with costs here and below, subject to paragraph 81.
  • The advocates who drafted the memorandum of appeal shall forfeit all fees attached to its drafting, perusal of attachments and costs of service.

Rules and key headnotes

Election Petitions — Preliminary Objections — Validity of Supporting Affidavit as a Point of Law
An objection challenging the validity of an affidavit supporting an election petition on the ground that the commissioning officer was not properly licensed to take oaths at the material time is a pure point of law which may be raised at any stage of the proceedings, including after the close of affidavit evidence.
Public Documents — Chief Registrar's Letter — Admissibility of Uncertified Copy
A letter allegedly authored by the Chief Registrar is a public document; only a certified copy, and not a mere uncertified photocopy without seal, is admissible, and where its authenticity is contested the court must require formal proof and afford the opposing party opportunity to rebut it.
Natural Justice — Right to be Heard — Reliance on Untested Evidence
A decision reached in reliance on evidence introduced without proper proof and without affording the affected party an opportunity to rebut it violates the principles of natural justice and is void and unlawful.
Advocates and Commissioners for Oaths — Effect of Non-Renewal of Practicing Certificate on Power to Commission Oaths
An advocate whose name remains on the Roll does not cease to practise, and does not lose the power to act as a commissioner for oaths, merely by failing to renew a practicing certificate for the year; the power ceases only where the advocate is struck off, suspended, or has applied to have their name removed from the Roll.
Advocates Act s.14A — Scope — Non-Application to Acts as Commissioner for Oaths
The remedial provision in section 14A of the Advocates Act protects clients from errant advocates in legal practice, but does not extend to an advocate's acts as a commissioner for oaths, since commissioning of documents is governed by the separate Commissioner for Oaths (Advocates) Act.
Costs — Judicial Discretion — Costs Following Wrongly Decided Objection
Where a trial court's award of costs rests on evidence that was wrongly admitted and an objection that was wrongly upheld, there is no justification for the costs award and it will be set aside; costs in electoral litigation must be considered so as not to unjustifiably deter aggrieved parties from seeking court redress.
Memorandum of Appeal — Drafting Requirements under Rule 86(1) Court of Appeal Rules
A memorandum of appeal must set forth concisely and under distinct heads the grounds of objection; grounds couched in general terms that merely narrate the trial court's findings without challenging a specific ratio decidendi offend the law and may be struck out.

Legislation cited (34)

Cases cited (29)

  • National Insurance Corporation v Pelican Air Services (Civil Appeal No. 13 of 2003)
  • Sietco v Noble Builders (U) Ltd (Supreme Court Civil Appeal No. 31 of 1995)
  • Attorney General v Florence Baliraine (Civil Appeal No. 79 of 2003)
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (Civil Appeal No. 2 of 1998)
  • Kamba Saleh Moses v Namuyangu Jennifer (Election Petition Appeal No. 27 of 2011)
  • Sitenda Sebalu v Sam K. Njuba (Election Petition Appeal No. 26 of 2007)
  • De Souza v Tanga Town Council [1961] EA 377
  • Kifamunte v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Ossiya Solomon v Koluo Joseph Andrew and Electoral Commission (Election Petition No. 2 of 2021)
  • Kamurali Jeremiah v Nathan Byanyima and Electoral Commission (Election Petition No. 002 of 2021)
  • Ochwa David Vs. Ogwari Polycarp & Electoral Commission
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Kiiza v Kabakumba Masiko (Election Petition No. 44 of 2016)
  • Winifred Komuhangi Masiko V. Bamukwatsa Betty aka Muzanira Betty & Anor
  • Musoke Mike and Mubira Vincent v Kulumba James (Revision Application No. 09 of 2019)
  • Ridge v Baldwin [1964] AC 40
  • Suubi Kinyamatama Juliet v Sentongo Robinah Nakisirye and Another (Election Petition Appeal No. 92 of 2016)
  • Gadaffi Nassur v Ssekabira (Election Petition No. 16 of 2021)
  • Samuel Sidoro and Maiku Didi Paul v Abibu Buga Khemis Awadi (Election Petitions Nos. 5 & 6 of 2020)
  • Essaji v Solanki [1968] EA 218
  • Prof. Syed Huq v Islamic University in Uganda (Supreme Court Civil Appeal No. 47 of 1995)
  • Kabogere Coffee Factory v Haji Walib Kigongo (Supreme Court Civil Appeal No. 10 of 1993)
  • Otim Nape George William v Ebil Fred and Electoral Commission (Election Petition No. 17 of 2011)
  • Returning Officer Iganga District v Hajji Muluya Mustapha (Election Petition Appeal No. 19 of 1997)
  • George Patrick Kassaja v Frederick Ngobi Gume and Electoral Commission (Election Petition Appeal No. 68 of 2016)
  • Freda Nanziri Kase Mubanda v Mary Babirye Kabanda and Electoral Commission (Election Petition Appeal No. 38 of 2016)
  • Akuguzibwe v Muhumuza Mulimira and Electoral Commission (Election Petition Appeal No. 22 of 2016)
  • Apollo Kantinti Vs Sitenda Sebalu
  • Besigye Kizza v Museveni Yoweri Kaguta and Electoral Commission (Presidential Election Petition No. 1 of 2001)

Full judgment

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

Nyakecho v Electoral Commission and Another (Election Petition Appeal No. 14 of 2021) [2022] UGCA 158 (1 June 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.