Wakilii

Omara v Ariko (Miscellaneous Application No. 35 of 2023)

High Court · [2023] UGHCCD 96 · 2023 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of orders in Election Petition No. 007 of 2021 pending appeal to the Court of Appeal
Decision
Application partially granted. Stay of by-election granted pending appeal. Nullification of election and vacancy declaration maintained. Vice Chairperson continues in office under s.18(5) of the Local Governments Act.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a stay of execution is not envisaged under the Local Governments Act Cap. 243 because s.18(5) provides for the vice chairperson to assume the office of chairperson when the chairperson is removed. The court invoked inherent powers under Judicature Act s.33 and Civil Procedure Act s.98 to stay the Electoral Commission from holding a by-election until the Court of Appeal determines the applicant's appeal or until three months have elapsed, whichever comes first. Application partially granted.

Outcome

Application partially granted. Stay of by-election granted pending appeal. Nullification of election and vacancy declaration maintained. Vice Chairperson continues in office under s.18(5) of the Local Governments Act.

Facts

The applicant, Omara Yuventine, was elected District Chairperson for Abim district. In Election Petition No. 007 of 2021, the High Court nullified his election on the ground that he had not resigned from the Uganda Peoples' Defence Forces and was ineligible for nomination. The High Court ordered that the district chairperson seat be declared vacant and that the Electoral Commission conduct fresh elections. The applicant filed an appeal to the Court of Appeal and subsequently applied for a stay of execution of the High Court's orders. The vice chairperson had already assumed office pursuant to s.18(5) of the Local Governments Act. The respondent opposed the application on the grounds that the Local Governments Act makes no provision for a stay of execution in election petition appeals and that the vice chairperson had taken over and any change would cause inconvenience.

Issues

  1. Whether there are any justifiable grounds for a stay of execution of the orders in Election Petition No. 007 of 2021.
  2. What remedies are available to the parties in the circumstances.

Orders

  • The execution of the decree and orders arising from the judgment of Hon. Mr Justice Isah Serunkuma in Election Petition No. 007 of 2021 be stayed pending the determination of the appeal filed by the applicant in the Court of Appeal of Uganda or until the end of three months within which the Court of Appeal is enjoined to have determined the appeal, whichever comes earlier.
  • The nullification of the election of Omara Yuventine as District Chairperson for Abim district and the declaration that the district chairperson seat is vacant are maintained.
  • The costs of this application to abide the outcome of the appeal in the Court of Appeal.

Rules and key headnotes

Electoral Law — Stay of Execution — Local Government Elections — Absence of Statutory Provision
The Local Governments Act Cap. 243 does not provide for a stay of execution in election petition appeals, unlike the Parliamentary Elections Act which provides for an automatic stay under s.95(3).
Administrative Law — Local Government Officials — Assumption of Office by Vice Chairperson
By operation of s.18(5) of the Local Governments Act, when a district chairperson is removed from office, the vice chairperson assumes the office until the election of a new chairperson, to ensure continuity and avoid bringing the district to a standstill.
Civil Procedure — Inherent Powers — Invocation to Fill Lacuna in Statute
Where a statute contains a lacuna regarding stay of execution pending appeal, the court may invoke its inherent powers under s.33 of the Judicature Act and s.98 of the Civil Procedure Act to make such orders as are necessary for the ends of justice and to prevent an appeal from being rendered nugatory.
Electoral Law — Stay of By-Election — Balance Between Finality and Right of Appeal
In the absence of a statutory stay provision in local government election appeals, the court may exercise inherent powers to stay the holding of a by-election pending appeal determination or for three months (the period within which the Court of Appeal is enjoined to determine the appeal under s.145(2) of the Local Governments Act), whichever comes first, in order not to render the appeal nugatory.
Civil Procedure — Citation of Wrong Law — Jurisdiction to Grant Order Remains
Where an application omits to cite any law at all or cites the wrong law, but the jurisdiction to grant the order sought exists, the irregularity or omission can be ignored and the correct law inserted.

Legislation cited (9)

Cases cited (3)

  • Francis Wazarwahi Bwengye v Haki W Bonera (High Court Civil Appeal No. 33 of 2009)
  • Tarlol Singh Saggu v Road Master Cycles (U) Limited (Civil Appeal No. 46 of 2000)
  • Peter Odok W'oceng v Markly Vicent Okidi and 5 Others (Election Petition No. 29 of 2011)

Full judgment

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

Omara v Ariko (Miscellaneous Application No. 35 of 2023) [2023] UGHCCD 96 (6 April 2023)
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.