The Court of Appeal has ordered for the retrial of a petition in which, Annet Nyakecho, the former Tororo North County member of parliament is challenging the victory of Godfrey Ekanya.
The panel of three court of appeal Justices comprising Fredrick Egonda-Ntende, Cheborion Barishaki, and Eva Luswata delivered the verdict on Wednesday after setting aside a high court decision, which dismissed Nyakecho’s petition with costs.
In their verdict, the Justices ordered that Nyakecho’s petition goes back to the High Court and be heard afresh before another Judge and awarded her costs. Nyakecho ran to Mbale High court after losing to Ekanya in the January 14th, 2021 polls.
Nyakecho polled 9,563 votes against 9,674 votes garnered by Ekanya.
She petitioned Mbale High court citing voter bribery and stuffing of pre-ticked ballots among other electoral malpractices.
She asked the court to nullify Ekanya’s victory and declare her the duly elected Tororo North County MP.
However, in September 2021, Justice Andrew Bashaija dismissed Nyakecho’s petition with costs on grounds that it was accompanied by defective affidavits since they were commissioned by an Advocate without a valid practicing certificate.
Justice Bashaija ruled that the affidavits were null and void and ordered Nyakecho to pay Ekanya and the Electoral Commission costs of the suit.
Dissatisfied with the ruling, Nyakecho through her lawyers of Okello Oryem and Company Advocates appealed to the Court of Appeal, saying that the trial judge erred in law and fact when he allowed the Electoral Commission to introduce a new matter when they claimed that the affidavit in support of her petition was commissioned by an unlicensed Advocate Owakukiroru when all the parties had already filed their final rejoinders.
She argued that this was contrary to the court orders, which stated that no additional affidavit would be allowed.
Nyakecho also accused the Judge of having relied on submissions from the bar an unsigned letter from the Electoral Commission’s lawyer and a photocopy of a letter purportedly written by the Chief Registrar of the Courts of Judicature whose authenticity and content were contested.
She faulted Justice Bashaija for failing to apply provisions of the law while dismissing her case on grounds of being incompetent.
Nyakecho explained that if the Judge had applied the provisions, he would have ordered that her affidavits be commissioned by another Commissioner for Oaths as provided for under the Advocates Act and the Constitution.
In their judgment, the Justices relied on a decision made by the Supreme Court in a case involving the Islamic University of Uganda (IUIU) and the founding Rector Professor Syed Huq of 1995 where Justice Wambuzi took time to consider and make a finding on the powers of a commissioner of oaths who acted at a time when their practicing certificate was deemed expired.
They explained that the Supreme Court found that under the Advocates Act, a commission granted lasts until it is revoked or until the grantee ceases to be an Advocate.
“An Advocate is deemed not to have the right to practice only if they have been removed or struck off the roll, where they are on suspension, where they have applied to the Registrar for their name to be removed from the Roll”, said the Justices.
As such, they have found that the affidavit that was sworn before Commissioner Owakukiroru was valid.
The Justices also indicated that the trial judge erred when he relied on the evidence wrongly adduced to allow the objection and to expunge the petition and its principle affidavit.
They argued that there was no justification for the judge to award costs to the respondents, and for this reason, the Advocates should forfeit all fees attached to the drafting of the grounds of appeal (Memorandum of Appeal), a perusal of its attachments, and costs attached to its service onto other parties.
This is not the first time Nyakecho and Ekanya are engaged in legal battles.
After the 2016 general elections, Ekanya who was then the incumbent MP for Tororo North County petitioned the court having lost to Nyakecho.
The Mbale High Court Judge, Lady Justice Patricia Waiswa Basaza nullified Nyakecho’s victory and ordered a fresh election on grounds that the election was marred with irregularities.
Nyakecho challenged Basaza’s orders in the Court of Appeal and a panel of three Justices led by the Former Deputy Chief Justice Steven Kavuma, Paul Mugamba, and Alfonse Owiny-Dollo reinstated her victory.