Wakilii

Kikulukunyu v Muwanga (Election Petition Appeal No. 44 of 2011)

Court of Appeal · [2012] UGCA 23 · 2012 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Court of Appeal against a High Court decision annulling a parliamentary election for bribery
Decision
Appeal dismissed by majority; election annulled and bye-election ordered for Butambala Constituency

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal, by a majority of two to one, dismissed the appeal and upheld the High Court's annulment of the appellant's election as Member of Parliament for Butambala Constituency for bribery. The majority held that the trial judge properly evaluated the evidence, that voter status was sufficiently proved by witnesses' affidavits and voter cards in the absence of rebuttal, and that one proven incident of bribery suffices to annul an election. The dissenting judge would have allowed the appeal, holding that random sampling of only six of twenty-two allegations breached the right to fair hearing under Article 28(1), and that the Voters Register was the only conclusive proof of voter status given Butambala's recent creation.

Facts

On 18 February 2011, parliamentary elections were held for Butambala Constituency. The appellant polled the most votes (48.21%) and was declared winner over the respondent (45.53%). The respondent petitioned the High Court alleging 22 incidents of bribery by the appellant personally or through agents, including gifts of money, soda, steamer lamps, footballs and cows to procure votes. Butambala was a newly created district carved out of Mpigi District, so polling stations were reorganised and voters' cards still bore "Mpigi District". The trial judge evaluated six of the 22 allegations, found five proved to the court's satisfaction, and annulled the election under sections 61(1)(c) and 63(4)(c) of the Parliamentary Elections Act, ordering a fresh election. The appellant appealed, arguing that witnesses failed to prove they were registered voters (the Voters Register not being adduced), that the respondent's affidavits contained contradictions, and that there was no independent corroborating evidence.

Issues

  1. Whether the trial judge erred in finding that the appellant committed the illegal practice of bribery personally or through his agents with his knowledge, consent and approval.
  2. Whether the appellant is entitled to the reliefs sought on appeal.

Orders

  • Appeal dismissed.
  • Decision and orders of the High Court upheld.
  • Election of the appellant as Member of Parliament, Butambala Constituency, set aside.
  • A bye-election ordered to be held in the constituency.
  • Respondent awarded the costs of the appeal and those in the court below.

Key headnotes

Election Petitions — Bribery — Sufficiency of Single Proven Incident
A single incident of bribery, once proved to the satisfaction of the court, is sufficient to annul an election, and the weight or significance of the incident is irrelevant.
Election Petitions — Bribery — Standard of Proof
The standard of proof in an election petition alleging bribery is higher than the ordinary civil standard but lower than proof beyond reasonable doubt; the allegation must be proved to the satisfaction of the court by cogent evidence.
Burden of Proof — Proof of Registered Voter Status in Election Petitions
The legal burden of proving that an alleged recipient of a bribe was a registered voter lies on the petitioner and does not shift to the respondent; where witnesses deponed their voter card numbers and were unchallenged on registration, such evidence may suffice as proof of voter status absent contrary evidence.
Affidavits — Contradiction and the Maxim Falsa Demonstratio Non Nocet
A supplementary affidavit that clarifies or corrects a genuine mistake in an earlier affidavit does not amount to a contradiction or lie; under the maxim falsa demonstratio non nocet, a false part of a description will be rejected where the true part identifies the subject with sufficient certainty.
Fair Hearing — Duty to Consider All Evidence (dissenting)
Per the dissent, a trial court must consider the totality of the evidence on all issues placed before it; adopting a method of random sampling that disregards part of the evidence on a core issue contravenes the right to a fair hearing under Article 28(1) of the Constitution and renders the decision a nullity.

Legislation cited (26)

  • Parliamentary Elections Act 2005 s.61(1)(c)
  • Parliamentary Elections Act 2005 s.63(4)(c)
  • Parliamentary Elections Act 2005 s.68(1)
  • Parliamentary Elections Act 2005 s.68(2)
  • Parliamentary Elections Act 2005 s.1
  • Parliamentary Elections Act 2005 s.34
  • Parliamentary Elections Act 2005 s.39
  • Electoral Commission Act Cap 140 s.18
  • Electoral Commission Act Cap 140 s.24
  • Electoral Commission Act Cap 140 s.25
  • Electoral Commission Act Cap 140 s.26
  • Electoral Commission Act Cap 140 s.28
  • Evidence Act s.101
  • Evidence Act s.102
  • Evidence Act s.103
  • Evidence Act s.106
  • Evidence Act s.73
  • Evidence Act s.75
  • Evidence Act s.76
  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.44(c)
  • Constitution of Uganda art.45
  • Constitution of Uganda art.2(2)
  • Constitution of Uganda art.128(1)
  • Constitution of Uganda art.38
  • Judicature (Court of Appeal Rules) Directions r.30

Cases cited (26)

  • Mukasa Anthony Harris v Bayiga Lulume (Election Petition Appeal No. 14 of 2006)
  • Mbayo Jacob Robert v Electoral Commission (Election Petition Appeal No. 7 of 2006)
  • Kirunda Kivejinja v Katuntu Abdu (Election Petition Appeal No. 24 of 2006)
  • Pandya vs. R [1957] E.A 336
  • Kizza Besigye v Museveni Yoweri Kaguta (Presidential Election Petition No. 1 of 2001)
  • Ratilal Nanchand SHETH vs. Dr C.L.K Sali, [1995] KALR 626
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Matsiko Komuhangi v Babihuga (Election Petition Appeal No. 9 of 2002)
  • Figgis v R. (1), 19 K.L.R. 32
  • The Glannibanta (2) (1876), 1 P.D. 283
  • Coghlan v Cumberland (3), [1898] 1 Ch. 704
  • Peters vs Sunday Post Limited 1958 EA 424
  • Osuona v the State (2010) LPELR-CA/OW/150/2009
  • Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Election Petition Appeal No. 4 of 2009)
  • De Souza Vs Tanga Town Council, Civil Appeal No. 89 of 1960 reported in 1961 EA 377
  • Kipoi Tonny Nsubuga v Waluku Wakata (Election Petition Appeal No. 7 of 2011)
  • Makula International Ltd vs. His Eminence Cardinal Nsubuga & Anor (1982) HCB 11
  • Electoral Commission v Piro Santos (Election Petition Appeal No. 2 of 2011)
  • Fred Badda v Muyanda Mutebi (Election Petition Appeal No. 25 of 2006)
  • Henry Hidaya vs. Manyoka [1961] EA 705
  • Waziri Ibrahim v Shagari (1983) CLR 9(d) (SC)
  • Kamba Saleh Moses v Namuyangu (Election Petition Appeal No. 27 of 2011)
  • Okala vs. Republic 1965 EA 555
  • Kanalusasi vs. Uganda [1990-1998] HCB 10
  • Friday Jumbe & Humphery Mvula v Attorney General Constitutional case Number 1 of 2005
  • Maggie Kaunda v Republic Criminal Appeal Number 8 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.