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Kyagulanyi v Museveni & 2 Others (Miscellaneous Application 1 of 2021)

Supreme Court · [2021] UGSC 64 · 2021 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for leave to amend a presidential election petition before the Supreme Court (court of first instance)
Decision
Application for leave to amend the presidential election petition dismissed

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Holding

The Supreme Court dismissed the applicant's application for leave to amend his presidential election petition. It held that rule 15 of the Presidential Elections (Election Petitions) Rules applies the Civil Procedure Act and Rules only to the trial of such a petition, not to amendment of pleadings. A presidential election petition is a unique statutory proceeding governed by strict, mandatory constitutional timelines under article 104, and neither the Constitution, the Presidential Elections Act nor the rules provide for amendment. The court has no power to extend the 15-day filing period; permitting an amendment that introduces new causes of action after that period would effectively extend time and prejudice the respondents. The affidavit objection was overruled.

Facts

Following the general elections held on 14 January 2021, the Electoral Commission on 16 January 2021 declared the 1st respondent, Yoweri Museveni, validly elected President. The applicant, a presidential candidate, filed a presidential election petition in the Supreme Court on 1 February 2021 challenging the result. On 8 February 2021 he applied for leave to amend the petition, contending the amendment was necessary to enable the court to fully determine the questions involved and would not prejudice the respondents or introduce a distinct cause of action. The respondents opposed, arguing that the proposed amendment was filed after the constitutionally prescribed time for filing a presidential election petition, that it introduced new grounds (including that the 1st respondent was not qualified for election and additional electoral offences) intended to defeat their answers, and that amendment is not provided for in the governing law. The court dismissed the application on 9 February 2021 and later gave its reasons. The petition was subsequently withdrawn by the applicant.

Issues

  1. Whether the affidavit in reply sworn by Mr. Oscar Kihika on behalf of the 1st respondent should be struck off for want of attached written authority.
  2. Whether the Civil Procedure Act and the Civil Procedure Rules apply to the amendment of a Presidential Election Petition.
  3. Whether a Presidential Election Petition may be amended after the expiry of the constitutional time limited for filing the petition.
  4. Whether leave to amend should be granted where the proposed amendment introduces new causes of action or grounds.

Orders

  • The objection to the affidavit in reply sworn by Mr. Oscar Kihika is overruled and the affidavit is admissible.
  • The application for leave to amend the petition is dismissed.
  • No order as to costs.

Key headnotes

Civil Procedure — Application of the Civil Procedure Act and Rules to Presidential Election Petitions — Rule 15 PEP Rules
Rule 15 of the Presidential Elections (Election Petitions) Rules makes the Civil Procedure Act and the rules made thereunder applicable only to the trial or hearing of a presidential election petition, and not to the amendment of pleadings, which is not a trial.
Electoral Law — Presidential Election Petition — Whether amendable — Special statutory proceeding
A presidential election petition is a unique statutory proceeding accorded special treatment and governed by strict, mandatory timelines; neither the Constitution, the Presidential Elections Act, nor the rules provide for the amendment of pleadings, and such a petition is not subject to amendment like an ordinary civil suit.
Electoral Law — Limitation — Power to extend time for filing — Article 104(2) of the Constitution
The Supreme Court has no power to extend the fifteen-day period prescribed by article 104(2) of the Constitution for filing a presidential election petition; an amendment introducing a new cause of action after expiry of that period would have the practical effect of extending the time for filing and cannot be allowed.
Civil Procedure — Pleadings — Amendment introducing new cause of action after limitation — Prejudice
An amendment that introduces a new cause of action after the expiry of a period of limitation must be rejected, and an amendment that would occasion injustice or prejudice to the opposite party which cannot be cured will not be allowed.
Evidence — Affidavits — Competence of deponent — Authority to swear on behalf of a party
An advocate may depone to facts within his knowledge acquired in the course of his professional duties, provided he does not appear to represent the litigant in the same matter; where he asserts authority to swear an affidavit on a party's behalf, that authority must be explicit and in writing, but absent such authority the affidavit remains admissible in his own capacity.
Constitutional Law — Precedent — Power of the Supreme Court to depart from its own decisions — Article 132(4)
Under article 132(4) of the Constitution the Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears right to do so, in its role as the apex court of stating the correct position of the law.

Legislation cited (30)

  • Constitution of Uganda 1995 art.104
  • Constitution of Uganda 1995 art.104(2)
  • Constitution of Uganda 1995 art.104(3)
  • Constitution of Uganda 1995 art.104(5)
  • Constitution of Uganda 1995 art.102(1)(b)
  • Constitution of Uganda 1995 art.219
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.132(4)
  • Constitution of Uganda 1995 art.61
  • Presidential Elections Act No.16 of 2005 s.59
  • Presidential Elections Act No.16 of 2005 s.58
  • Presidential Elections Act No.16 of 2005 s.4(b)
  • Presidential Elections Act No.16 of 2005 s.12(1)(c)
  • Presidential Elections Act No.16 of 2005 s.56(2)
  • Presidential Elections Act No.16 of 2005 s.59(3)
  • Civil Procedure Act Cap.71 s.98
  • Civil Procedure Act Cap.71 s.100
  • Civil Procedure Rules SI 71-1 Order 6 rule 19
  • Civil Procedure Rules SI 71-1 Order 6 rule 20
  • Civil Procedure Rules SI 71-1 Order 1 rule 12
  • Civil Procedure Rules SI 71-1 Order 19 rule 3(1)
  • Presidential Elections (Election Petitions) Rules SI 13 of 2001 rule 15
  • Presidential Elections (Election Petitions) Rules SI 13 of 2001 rule 5
  • Presidential Elections (Election Petitions) Rules SI 13 of 2001 rule 6
  • Presidential Elections (Election Petitions) Rules SI 13 of 2001 rule 8
  • Presidential Elections (Election Petitions) Rules SI 13 of 2001 rule 10
  • Presidential Elections (Election Petitions) Rules SI 13 of 2001 rule 11
  • Presidential Elections (Election Petitions) Rules SI 13 of 2001 rule 12
  • Judicature (Supreme Court) Rules rule 2(2)
  • Judicature (Supreme Court) Rules rule 44

Cases cited (17)

  • Mulowoza and Brothers Ltd v Enshire & Co. Ltd (Civil Appeal No. 26 of 2010)
  • Mohan Musisi Kiwanuka v Asha Chand (Civil Appeal No. 21 of 2001)
  • Amama Mbabazi v Yoweri Kaguta Museveni & 2 Others (Presidential Election Petition No. 01 of 2016)
  • Awori Media Uganda Ltd & Another v Eco Bank Ltd (Miscellaneous Application No. 1105 of 2014)
  • Fang Ming v Belex Tours and Travel Ltd (Civil Appeal No. 06 of 2013)
  • Rao and others, (1956) 1 MLJ 40
  • Harmon versus Tylor, Supreme Court of Tennessee, (112 Tenn.8) 1041, 1904
  • Odinga & 5 others v Independent Electoral & Boundaries Commission & 3 others (2013) (2019) 6 KLR (p) 1
  • Orubu versus NEC, (1988) 5 NWLR (pt. 94 232 at p.347)
  • Gaso Transport Services (Bus) Ltd versus Obene, (1990) EA at 88
  • Epaineto versus Uganda Commercial Bank Ltd [1971] EA 185
  • Au Garage & others versus Motokov (3) [1971] EA 514
  • Dhartpakar Madan Lal Agarwal versus Rajiv Gandhi, 11 May 1987 AIR 1577, 1987 SCR (3) 369
  • Maude versus Lowley (1874) L.R. 9 C.P. 165
  • Lowley (1883) 48 L.T. 762
  • Rwabugande v Uganda (Criminal Appeal No. 25 of 2014)
  • R. versus Secretary of State for India (1941) 2 ALL ER, 546
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