Wakilii

Nyakecho v Electoral Commission and Another (Election Petition No. 3 of 2021)

High Court · [2021] UGHC 16 · 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
Election petition dismissed as incompetent due to invalid supporting affidavit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An election petition supported by an affidavit commissioned by an advocate without a valid practicing certificate at the time of commissioning is invalid and incurably defective. The defect cannot be cured under Article 126(2)(e) of the Constitution or Section 14A of the Advocates Act. The petition collapses with the invalid affidavit and must be dismissed.

Outcome

Election petition dismissed as incompetent due to invalid supporting affidavit

Facts

General elections for Member of Parliament for Tororo North County Constituency were held on 14 January 2021. The petitioner, Nyakecho Annet, contested against the 2nd respondent, Ekanya Geoffrey, and five other candidates. The Electoral Commission declared the 2nd respondent the winner. The petitioner filed an election petition challenging the result on grounds that the election was not conducted in accordance with the Constitution and electoral laws. When the matter was set down for cross-examination, the 2nd respondent raised a preliminary objection that the petition was incompetent because the sole affidavit supporting it was commissioned on 10 March 2021 by Advocate Owakukiroru Raymond, who did not possess a valid practicing certificate at that time. A letter from the Chief Registrar dated 6 September 2021 confirmed that the advocate was issued a practicing certificate on 19 March 2021, after the grace period for renewal had lapsed on 1 March 2021.

Issues

  1. Whether the preliminary objection raised by the respondent is a point of law that can be entertained by the court.
  2. Whether an affidavit commissioned by an advocate without a valid practicing certificate is valid.
  3. Whether the defect in the affidavit supporting the petition can be cured under Article 126(2)(e) of the Constitution or Section 14A of the Advocates (Amendment) Act 2002.
  4. Whether the petition can stand without a valid supporting affidavit.

Orders

  • Preliminary objection allowed.
  • Election petition dismissed.
  • Costs awarded to the 1st and 2nd Respondents.

Rules and key headnotes

Election Petitions — Competence — Affidavit in Support — Commissioning by Advocate Without Valid Practicing Certificate
An affidavit commissioned by an advocate who does not possess a valid practicing certificate at the time of commissioning is invalid, and where such an affidavit is the sole affidavit in support of an election petition, the petition is rendered null and void ab initio.
Preliminary Objections — Illegality — Raising at Any Time
The competency of an election petition is a question of law. Illegality, once brought to the attention of the court, overrides all questions of pleading including any admissions made thereon, and can be raised at any time even if not pleaded or supported by affidavit evidence.
Advocates — Practicing Certificates — Effect of Expiry on Commission as Commissioner for Oaths
The commission granted to an advocate as a commissioner for oaths goes with the practicing certificate. Once an advocate's practicing certificate has expired, the commission also ceases, and the advocate cannot legally administer an oath until a new practicing certificate is obtained.
Election Petitions — Mandatory Requirements — Affidavit in Support
Under Rule 4(8) of the Parliamentary Elections (Interim Provisions) Rules, it is mandatory that an election petition be accompanied by an affidavit setting out the facts on which the petitioner intends to rely. A petition cannot stand without a valid affidavit in support.
Defects in Affidavits — Distinction Between Defective Affidavit and Failure to Comply with Statutory Requirements
A distinction exists between a defective affidavit (such as where the deponent did not sign or date the affidavit) and failure to comply with statutory requirements. The latter is fatal and cannot be cured, whereas the former may be capable of rectification in appropriate circumstances.
Election Petitions — Curing Defects — Article 126(2)(e) of the Constitution — Inapplicability
The purported commissioning of an affidavit in support of an election petition by an advocate without a valid practicing certificate is not an irregularity that can be cured under Article 126(2)(e) of the Constitution or Section 14A of the Advocates (Amendment) Act 2002. Where a petition is null and void ab initio, no amendment or rectification can be made to a non-existent petition.
Chief Registrar — Official Documents — Judicial Notice
Courts ordinarily take cognizance of official documents from the Chief Registrar of the Courts of Judicature under his or her signature authored in the official course of business as authentic official documents. The Chief Registrar need not swear an affidavit verifying content of a letter authored in an official capacity unless its authenticity is put in question.

Legislation cited (14)

Cases cited (15)

  • Returning Officer of Iganga District and Another v Hajji Mustafa (Civil Appeal No. 13 of 1997)
  • Gadaffi Nassur v Ssekabira Denes and Electoral Commission (Election Petition No. 16 of 2021)
  • Suubi Kinyamatama Juliet and Others v Sentongo Robina and Electoral Commission (Election Petition Appeal No. 92 of 2016)
  • Apama Amato Boroa v Obiga Kania and Electoral Commission (Election Petition No. 2 of 2021)
  • Ossiya Solomon v Koluo Joseph Andrew and Electoral Commission (Election Petition No. 2 of 2021)
  • Mori Samuel Sidiro and Another v Abibu Buga Khemis Awadi and Electoral Commission (Election Petitions Nos. 5 and 6 of 2021)
  • Ochwa David v Ogwari Polycarp and Electoral Commission (Election Petition No. 4 of 2021)
  • Mutembuli Yusuf v Nagwomu and Electoral Commission (Election Petition Appeal No. 43 of 2016)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 11
  • Musoke Mike and Mubiru Vincent v Kulumba James (Revision Application No. 9 of 2019)
  • Otim Nape George William v Ebil Fred and Electoral Commission (Election Petition No. 17 of 2011)
  • Prof. Syed Huq v Islamic University in Uganda (Civil Appeal No. 47 of 1995)
  • Kabogere Coffee Factory v Haji Twalib Kigongo (Civil Appeal No. 10 of 1993)
  • Kasala Growers Cooperative Society v Kakooza Jonathan and Another (Civil Appeal No. 19 of 2010)
  • Kamurali Jeremiah v Nathan Byanyima and Electoral Commission (Election Petition No. 2 of 2021)

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 No. 3 of 2021) [2021] UGHC 16 (14 September 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.