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Lumu Richard Kizito v Makumbi & Anor (Election Appeal No. 109 of 2016)

Court of Appeal · [2017] UGCA 33 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Election appeal from High Court decision striking out election petition on preliminary objections
Decision
Appeal dismissed; High Court order dismissing the petition set aside and substituted with an order striking it out

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Holding

The Court of Appeal dismissed the appeal against the striking out of an election petition. It held that a trial judge has discretion to hear a matter de novo after a predecessor's recusal under s.20(2) of the Judicature Act, and that expunged affidavits ceased to have legal effect once the matter proceeded afresh. The four surviving affidavits, after 32 were expunged for non-compliance with the Oaths Act and Illiterates' Protection Act, provided no credible evidence to sustain the petition. The Court held that a candidate need not be a registered voter in the particular constituency under Article 80 of the Constitution. Although late service was not a valid ground for striking out, the petition still failed for lack of evidence.

Facts

The appellant and the 1st respondent were candidates for Member of Parliament for Mityana South Constituency in the February 2016 election. The 1st respondent was gazetted the winner with 10,661 votes against the appellant's 6,407 votes. The appellant petitioned the High Court seeking nullification, alleging the 1st respondent was not validly nominated as he was not a registered voter in the constituency and had not resigned as Resident District Commissioner of Luwero, and alleging numerous electoral offences and non-compliance with electoral laws. After the first judge recused himself, the matter was re-allocated and heard de novo. On preliminary objections, both parties conceded to expunging affidavits non-compliant with the Oaths Act and Illiterates' Protection Act; 31 of the appellant's affidavits and his annextures were expunged, leaving four affidavits. The trial judge struck out the petition for late service and held the remaining evidence insufficient.

Issues

  1. Whether the trial judge erred in deciding to hear the petition de novo following the recusal of the previous judge.
  2. Whether the trial judge erred in relying on expunged affidavits without affording the appellant a right to rejoin.
  3. Whether the trial judge erred in holding that the remaining affidavits could not sustain the petition and in failing to determine whether the 1st respondent was validly nominated.
  4. Whether the trial judge erred in relying on the 1st respondent's answer and affidavit evidence allegedly improperly before court.
  5. Whether the trial judge erred in holding that the petition was served out of time.
  6. Whether a parliamentary candidate must be a registered voter in the particular constituency where he or she stands.
  7. Whether the appellant was entitled to the reliefs sought.

Orders

  • The Appeal substantially fails and is hereby dismissed.
  • The Order of the High Court dismissing the Petition is set aside and substituted with an order striking it out.
  • The appellant shall pay costs to the respondent save for instruction and attendance fees in this Court and the court below.
  • The Appellant shall pay one-third of the 2nd Respondent's costs in the High Court but none are awarded to it for this Court.

Key headnotes

Trial De Novo — Judicial Discretion Following Recusal of Trial Judge
A trial judge to whom a matter is re-allocated following the recusal of the original judge has discretion under section 20(2) of the Judicature Act to determine whether to proceed on the existing record or hear the matter de novo, and an appellate court will not interfere unless the discretion was not exercised judiciously.
Trial De Novo — Effect on Prior Preliminary Rulings
Where a matter is ordered to be heard de novo, the trial judge is not bound by preliminary rulings made by the previous judge, and rulings expunging affidavits cease to have legal effect.
Election Petitions — Burden of Proof and Sufficiency of Affidavit Evidence
The burden of proving an election petition rests entirely on the petitioner, and where affidavits supporting the petition are expunged for non-compliance with the Oaths Act and Illiterates' Protection Act, leaving evidence from partisan or single uncorroborated witnesses confined to a few polling stations, the petition cannot be sustained for lack of credible evidence.
Eligibility for Parliament — Candidate Need Not Be Registered Voter in Constituency Contested
Under Article 80 of the Constitution and section 4 of the Parliamentary Elections Act, it is sufficient that a candidate for Member of Parliament is a registered voter; there is no requirement that the candidate be a registered voter in the particular constituency where he or she contests.
Election Petitions — Late Service of Petition as Directory Rather Than Mandatory
Late service of an election petition is directory rather than mandatory and, absent injustice or prejudice, constitutes a mere irregularity that does not justify striking out the petition; a trial judge bound by appellate authority to this effect errs in disregarding it.
Advocates — Bar on Counsel Appearing Where Counsel Is a Witness
Under Regulation 9 of the Advocates (Professional Conduct) Regulations, an advocate who has deponed an affidavit in support of a party's case may not appear as counsel for that party, and such improper conduct may be visited in costs.

Legislation cited (10)

  • Parliamentary Elections Act s.61(1)
  • Parliamentary Elections Act s.61(3)
  • Parliamentary Elections Act s.4
  • Judicature Act s.20(2)
  • Judicature (Court of Appeal) Rules r.30(1)(a)
  • Constitution of Uganda Article 80
  • Oaths Act
  • Illiterates' Protection Act
  • Commissioner for Oaths Rules r.8
  • Advocates (Professional Conduct) Regulations S.I 267-2 reg.9

Cases cited (7)

  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Pandya vs R (1957) EA 336
  • Mbogo & another vs Shah, 1968 EA 93
  • Wilson Kyakurugaha v Uganda (Criminal Appeal No. 51 of 2014)
  • Kasirye Zzimula Fred v Bazigatirawo Francis Amooti & Anor (Election Petition Appeal No. 3 of 2016)
  • Nsubuga Silvest Ssekutu v Kalibbala Charles & Another (Election Petition Appeal No. 70 of 2016)
  • Muhindo Rehema v Winfred Kizza & Electoral Commission (Election Petition Appeal No. 29 of 2011)
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.