Wakilii

Aisha Kabanda Nalule v Lydia Daphine Mirembe and Others (Election Petition Appeal No. 90 of 2016)

Court of Appeal · [2017] UGCA 157 · 2017 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court dismissal of a parliamentary election petition
Decision
Appeal dismissed; first respondent confirmed as validly elected Woman Member of Parliament for Butambala District.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal, exercising its duty as a first appellate court to re-evaluate the evidence, upheld the High Court's dismissal of the election petition. It found no fault in the trial judge's rejection of the voter bribery allegations, which lacked corroboration and rested on contradictory and unreliable witnesses whose demeanour the trial judge had observed. The court accepted that bribe money and items need not be filed in original but could be produced for inspection, which was not done. It upheld the striking out of undated and uncommissioned affidavits as inadmissible. Invoking Article 126(2)(e), it declined to reject argumentative grounds of appeal. The appeal was dismissed, but given the narrow 67-vote margin, each party bore its own costs.

Outcome

Appeal dismissed; first respondent confirmed as validly elected Woman Member of Parliament for Butambala District.

Facts

The appellant and the first respondent contested the 18 February 2016 election for Woman Member of Parliament for Butambala District. The Electoral Commission declared the first respondent the winner with 14,760 votes against the appellant's 14,693, a margin of 67 votes. The appellant filed an election petition in the High Court alleging voter bribery and non-compliance with electoral law. She alleged the first respondent gave voters cash of Shs 2,000, hand-held hoes, metallic goal posts, football wear, plates, and a wheelbarrow donated to a market traders association to solicit votes. She further alleged premature closure of certain polling stations before the statutory 4:00pm time. The High Court disbelieved the bribery witnesses as contradictory and unreliable, found the bribe money and items were never properly produced for inspection, rejected undated and uncommissioned affidavits, and found no convincing evidence of early closure. The petition was dismissed with costs and the appellant appealed.

Issues

  1. Whether the trial judge properly evaluated the evidence of alleged voter bribery.
  2. Whether the alleged premature closure of polling stations amounted to non-compliance affecting the result.
  3. Whether the trial judge properly struck out the appellant's affidavits that were undated or uncommissioned.
  4. Whether the grounds of appeal were competently framed under Rule 86 of the Court of Appeal Rules.
  5. What order as to costs should be made in an election petition appeal.

Orders

  • Appeal dismissed.
  • Judgment of the trial court upheld.
  • First respondent confirmed as validly elected Woman Member of Parliament for Butambala District.
  • Each party to bear its own costs both in the Court of Appeal and in the court below.

Rules and key headnotes

Electoral Law — Voter Bribery — Standard and Proof of Bribery Allegations
A court of law cannot annul an election on mere alleged voter bribery and non-compliance in the absence of cogent, corroborated evidence proving the allegations to the required standard.
Evidence — Proof of Bribery — Production of Physical Exhibits
Allegations of bribery by money or items are not proved merely by pleading; the correct procedure is to attach photocopies and produce the original for inspection in court, and failure to do so undermines the allegation.
Evidence — Contradictory Witnesses — Effect on Credibility
Where witnesses called by one party contradict each other, none of them can be believed, and such contradictions justify rejection of their testimony.
Evidence — Affidavits — Undated and Uncommissioned Affidavits
An affidavit that is undated or where the deponent has not appeared before a Commissioner for Oaths does not amount to admissible evidence by way of affidavit and may properly be struck off the record.
Civil Procedure — First Appellate Court — Duty to Re-evaluate Evidence
A first appellate court has a duty to review and re-appraise the evidence and reach its own conclusions, while giving due regard to the trial court's observations on the demeanour of witnesses whom it neither saw nor heard.
Civil Procedure — Memorandum of Appeal — Argumentative Grounds and Article 126(2)(e)
Although grounds of appeal must be framed concisely without argument or narrative under Rule 86(1), a court may invoke Article 126(2)(e) of the Constitution to determine an election petition appeal on its merits without undue regard to technicalities.
Electoral Law — Costs in Election Petitions — Discretion
Given the national importance of election litigation, costs should not deter aggrieved parties with a cause from seeking redress, and a court may order each party to bear its own costs, particularly where the vote margin is narrow.

Legislation cited (8)

Cases cited (12)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v R [1957] EA 336
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Mugema Peter v Mudiabole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
  • Mbayo Jacobs v Electoral Commission and Another (Election Petition Appeal No. 7 of 2006)
  • Nelson v Attorney General and Another (1999) EA 160
  • Dr. Kiiza Besigye v Y. K. Museveni and Another (Presidential Petition No. 1 of 2001)
  • Arnold Brooklyn & Company v Kampala Capital City Authority and Attorney General (Constitutional Petition No. 23 of 2013)
  • Matsiko Komuhangi v Babihuga T. Winnie (Election Petition Appeal No. 9 of 2002)
  • Amama Mbabazi v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2016)
  • J.B. Kakooza v Electoral Commission and Anthony Yigga (Election Petition Appeal No. 11 of 2007)
  • Kadama Mwogezaddembe v Gagawala Wambuzi (Election Petition No. 2 of 2001)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Aisha Kabanda Nalule v Lydia Daphine Mirembe and Others (Election Petition Appeal No. 90 of 2016) [2017] UGCA 157 (19 December 2017)
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.