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Kaija and Another v The Electoral Commission and Another (Election Petition Appeal No. 12 of 2006)

Court of Appeal · [2007] UGCA 85 · 2007 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from a High Court decision setting aside an election and ordering fresh elections
Decision
Appeal dismissed; High Court order setting aside the election and ordering fresh elections upheld

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Holding

The Court of Appeal dismissed the appeal. It held that the time limits in section 142(2) of the Local Governments Act and rule 13(1) of the Election Petitions Rules are directory, not mandatory, so the trial judge retained jurisdiction despite delivering judgment late. Section 42 of the Parliamentary Elections Act prohibiting firearms at polling stations applied to local council elections through section 172 of the Local Governments Act. The affidavits of illiterate deponents and those with a deviating jurat were validly admitted under the Oaths Act and section 43 of the Interpretation Act. The trial judge correctly applied the law of agency and the standard of proof, and properly found the first appellant guilty of electoral offences and illegal practices.

Facts

Kaija William (first appellant) and Byamukama K. James (respondent) contested the election for LCV Chairperson of Kyenjojo District, held on 2 March 2006. The Electoral Commission (second appellant) declared the first appellant the winner with 39,417 votes (53.5%) against the respondent's 34,259 votes (46.5%). The respondent petitioned the High Court at Fort Portal challenging the validity and results, alleging electoral malpractices, election offences and rigging, and that the Commission failed to conduct a free and fair election. He alleged the first appellant personally and through his agents committed illegal practices including using a Local Government vehicle for campaigns, carrying an AK-47 at Matiri Trading Centre polling station, bribery and undue influence. The trial judge found that the first appellant personally committed illegal practices and electoral offences, as did agents of the Commission, set aside the election and ordered fresh elections. The appellants appealed on twelve grounds, including a contention that the judge lost jurisdiction by delivering judgment after the statutory three-month period.

Issues

  1. Whether the time limits in section 142(2) of the Local Governments Act and rule 13(1) of the Parliamentary Elections (Election Petitions) Rules are mandatory, such that the trial judge lost jurisdiction by delivering judgment outside the prescribed period.
  2. Whether section 42 of the Parliamentary Elections Act could be applied to local council elections by virtue of section 172 of the Local Governments Act.
  3. Whether the trial judge erred in admitting affidavits sworn by allegedly illiterate deponents and affidavits with a non-prescribed jurat.
  4. Whether affidavits sworn by mobile agents, coordinators, monitors and supervisors were admissible.
  5. Whether the law of agency was correctly applied to hold the first appellant liable for the acts of his agents.
  6. Whether the first appellant committed electoral offences and illegal practices.
  7. Whether the trial judge applied the correct standard of proof in an election petition.

Orders

  • Appeal dismissed with costs to the respondent.
  • Certificate for two lawyers issued.

Key headnotes

Election Petitions — Time Limits — Whether Mandatory or Directory
The time limits for hearing and determining an election petition under section 142(2) of the Local Governments Act and rule 13(1) of the Parliamentary Elections (Election Petitions) Rules are directory, not mandatory; the court does not lose jurisdiction by delivering judgment outside the prescribed period, as the legislature did not intend to oust jurisdiction merely by use of the word 'shall'.
Application of Parliamentary Elections Law to Local Council Elections — Local Governments Act s.172
By virtue of section 172 of the Local Governments Act, parliamentary elections law applies with necessary modifications to any issue not provided for in the Local Governments Act; accordingly, section 42 of the Parliamentary Elections Act prohibiting arms at polling stations applies to local council elections.
Affidavits — Jurat for Illiterate Deponents — Deviation from Prescribed Form
An affidavit whose jurat substantially complies with the form prescribed by the Oaths Act for illiterate deponents is competent, and any deviation that does not affect the substance or is not calculated to mislead does not render it void, by virtue of section 43 of the Interpretation Act.
Election Petitions — Admissibility of Affidavits of Agents, Coordinators and Monitors
A candidate may appoint any number of registered voters to protect his interests at an election, and their affidavits stating what they observed at a particular polling station are admissible regardless of their designation as mobile agents, coordinators, monitors or supervisors.
Election Petitions — Law of Agency — Liability of Candidate for Acts of Agents
The principles of agency applicable to parliamentary and presidential elections apply with equal force to local council elections; a candidate is liable for the acts of agents he appointed or authorised, or whose work he adopted, where the illegal acts were done with his knowledge and consent or approval.
Election Petitions — Standard of Proof
The standard of proof in an election petition is proof to the satisfaction of the court — higher than the ordinary civil balance of probabilities because an illegal practice constitutes a criminal offence, but not beyond reasonable doubt; a trial judge's failure to use the precise words 'to the satisfaction of the court' is not fatal where the judgment as a whole shows he sought to be so satisfied.

Legislation cited (14)

  • Local Governments Act s.142(2)
  • Local Governments Act s.139(c)
  • Local Governments Act s.172
  • Local Governments Act s.126
  • Local Governments Act s.128(4)
  • Local Governments Act s.154
  • Parliamentary Elections Act 2005 s.42
  • Parliamentary Elections Act 2005 s.61(1)
  • Parliamentary Elections (Election Petitions) Rules r.13(1)
  • Parliamentary Elections (Election Petitions) Rules r.19
  • Interpretation Act s.43
  • Oaths Act
  • Presidential Elections Act s.59(6)(c)
  • Constitution of Uganda

Cases cited (7)

  • Makula International Ltd v Cardinal Nsubuga (Civil Appeal No. 8 of 1981)
  • Besigye v Museveni (Presidential Election Petition No. 1 of 2006)
  • Besweri Lubuye Kibuka Vs. Electoral Commission & Another Election Petition No. 12 of 1998 and No. 2 of 1999
  • Attorney General v Ssemwogerere (Constitutional Petition No. 3 of 2000)
  • Howard Vs. Secretary of State for Environment (1975) 1 QB235
  • Edward Byaruhanga Katumba v Daniel Kiwalabye Musoke (Election Petition Appeal No. 2 of 1998)
  • Besigye v Museveni (Election Petition No. 1 of 2001)
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.