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Kyewalabye Majegere v Kubeketerya and Another (Election Petition Appeal No. 78 of 2021)

Court of Appeal · [2022] UGCA 207 · 2022 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from a High Court judgment dismissing an election petition
Decision
Appeal dismissed; High Court declaration of the 1st respondent as validly elected Member of Parliament upheld.

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Holding

The Court of Appeal dismissed the appeal against the dismissal of an election petition. While it found the trial judge had erroneously expunged certain evidence (a WhatsApp message admitted by its author and affidavits with differing signatures), it held that falsification of results was not proved, the Electoral Commission's varying gazetted figures were innocent arithmetic errors later corrected and verified against certified DR Forms. Vicarious liability does not apply under s.61(1)(c) of the Parliamentary Elections Act, which requires the candidate's personal knowledge, consent or approval. Violence and partisan recruitment of officials were neither attributable to the 1st respondent nor sufficiently widespread to affect the result. The 1st respondent's election was upheld.

Facts

The appellant and the 1st respondent, together with eight others, contested for the Bunya East Constituency parliamentary seat in the General Elections held on 14 January 2021. At the District Tally Centre, the Returning Officer declared the 1st respondent the winner with 16,583 votes against the appellant's 10,166. However, the results gazetted on 17 February 2021 showed differing figures, indicating the appellant obtained 16,641 and the 1st respondent 10,250. The Electoral Commission later explained the gazetted figures contained an arithmetical error which was rectified after retallying, producing certified figures of 14,086 votes for the 1st respondent and 10,402 for the appellant. The appellant petitioned the High Court alleging falsification of results, violence, intimidation and partisan recruitment of electoral officials. The High Court dismissed the petition and declared the 1st respondent validly elected. The appellant appealed on sixteen grounds reduced to seven issues.

Issues

  1. Whether the grounds of appeal as set out in the Memorandum of Appeal offended the Rules of the Court.
  2. Whether the trial judge erred in expunging the appellant's pieces of evidence (uncertified electoral documents, WhatsApp message, photographs and affidavits with differing signatures).
  3. Whether the trial judge erred in holding that falsification of results was not proved to the satisfaction of court.
  4. Whether the trial judge erred in holding that the respondents had not committed electoral offences and that the 1st respondent could not be vicariously liable.
  5. Whether the trial judge erred in holding that the elections were held in compliance with the electoral laws.
  6. Whether any non-compliance with electoral laws affected the results in a substantial manner.

Orders

  • The appeal fails and is hereby dismissed.
  • The declaration by the High Court that the 1st Respondent, Hon. Kubeketerya James, is the validly elected Member of Parliament for Bunya East Constituency in Mayuge District is upheld.
  • Each party to bear its own costs before this Court and in the High Court.

Key headnotes

Election Petitions — Setting Aside Election — Vicarious Liability of Candidate under s.61(1)(c) PEA
Under section 61(1)(c) of the Parliamentary Elections Act, an election may only be set aside for an illegal practice or offence committed by the candidate personally or with his or her knowledge and consent or approval; vicarious liability for the acts of agents or supporters is not a ground for nullification.
Electronic Evidence — Admissibility — WhatsApp Messages Admitted by Author under Electronic Transactions Act
Where the author of a WhatsApp communication admits its correctness in cross-examination, the issues of authenticity and integrity of storage, retrieval and printing under section 8 of the Electronic Transactions Act cease to be relevant, and the message ought to be admitted and evaluated; expunging it in such circumstances is an error.
Public Documents — Admissibility of Uncertified Electoral Documents — s.73, 75, 76 Evidence Act
Declaration of Results Forms and Tally Sheets are public documents which must be certified under sections 73, 75 and 76 of the Evidence Act before being relied upon; however where the Electoral Commission itself produces the certified copies in evidence, the question of admissibility of the uncertified copies becomes moot.
Handwriting and Signatures — Comparison by Court — Need for Expert Evidence
A trial judge may compare signatures or handwriting in the absence of expert evidence but must exercise great caution; where differences between signatures are not very significant, the court ought to require a handwriting expert and should not expunge affidavits on the basis of such minor differences alone.
Election Petitions — Violence and Intimidation — Threshold for Nullification
Evidence of violence is relevant to nullify an election only where it is committed with the candidate's knowledge, consent or approval, or where it is so widespread or substantial as to compromise the integrity of the election or substantially affect the result; scattered and isolated incidents are insufficient.
Election Petitions — Scope of Inquiry — Exclusion of Party Primaries
The election which is the subject of a petition under the Parliamentary Elections Act is the one conducted by the Electoral Commission; the court's investigation into allegations of violence and intimidation excludes the period of in-house party primaries, as their organisers are not parties and extending inquiry to them would offend natural justice.
Election Petitions — Signing of DR Forms by Polling Agents
Section 50 of the Parliamentary Elections Act makes signing of the Declaration of Results Form voluntary for candidates' polling agents and mandatory only for the Presiding Officer; failure of agents to sign does not by itself invalidate votes otherwise properly cast.

Legislation cited (24)

  • Parliamentary Elections Act s.32
  • Parliamentary Elections Act s.47(1)
  • Parliamentary Elections Act s.50
  • Parliamentary Elections Act s.61(1)(c)
  • Parliamentary Elections Act s.80
  • Parliamentary Elections Act s.83A
  • Evidence Act s.73(a)(ii)
  • Evidence Act s.75
  • Evidence Act s.76
  • Evidence Act s.43
  • Evidence Act s.45
  • Electronic Transactions Act 2011 s.8(2)
  • Electronic Transactions Act 2011 s.8(5)
  • Electoral Commission Act s.30
  • Electoral Commission Act s.34
  • Constitution of Uganda Article 61(2)
  • Constitution of Uganda Article 61(1)(f)
  • Constitution of Uganda Article 28
  • Constitution of Uganda Article 44(C)
  • Judicature (Court of Appeal) Rules r.30(1)
  • Court of Appeal Rules r.86(1)
  • Civil Procedure Rules Order 43 r.2
  • Parliamentary Elections (Election Petitions) Rules r.27
  • Civil Procedure Act s.27

Cases cited (22)

  • Pandya Vs R 1957 EA 336
  • [1999] UGSC 1
  • Kakooza John Baptist v Electoral Commission (Election Petition Appeal No. 11 of 2007)
  • Konde Julius Tamale Vs Ssenkubuge Isaac & Anor
  • SBT Cards & Payment
  • Freda Nanziri Kase Mubanda v Mary Babirye Kabanda (Election Petition Appeal No. 38 of 2016)
  • Kizza Besigye v Museveni (Presidential Election Petition No. 1 of 2006)
  • Nabukeera Hussein Hanifah v Kusasira Peace K. Mubuuya (Election Petition Appeal No. 52 of 2016)
  • Mugume v Lubega (Election Petition Appeal No. 82 of 2016)
  • Kipoi Tonny v Ronny Waluku Wataka (Election Petition Appeal No. 07 of 2011)
  • Musisi Kibuuka Muhammed v Ashraf Nasser (Election Petition No. 18 of 2021)
  • Amama Mbabazi v Musizi Garuga (Election Petition No. 12 of 2002)
  • Anifah Kawoova v Joy Kabatsi (Election Petition Appeals Nos. 3 and 4 of 2007)
  • Katikiro of Buganda Vs Attorney General of Uganda (1959) EA 382
  • Halima Nakawungu v Electoral Commission (Election Petition Appeal No. 0002 of 2011)
  • Union of India Vs Association for Democratic Reforms and Another, Supreme Court of India 104 of 2002
  • Joy Kabatsi Kafura v Anifa Kawoova Bangirana (Election Petition Appeal No. 25 of 2007)
  • Raila Odinga & Anor Vs Uhuru Kenyatta & Others Election Petition No. 1 of 2017 of the Supreme Court of Kenya
  • Winnie Babihuga v Matsiko Winnie Komuhangi (Election Petition No. 4 of 2001)
  • Musinguzi Garuga v Amama Mbabazi (Election Petition No. 03 of 2001)
  • Akuguzibwe Lawrence v Muhumuza David (Election Petition Appeal No. 22 of 2016)
  • Aisha Kabanda Nalule v Lydia Daphine Mirembe (Election Petition Appeal No. 90 of 2016)
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