Buwembo v Busulwa and Another (Election Petition Appeal No. 33 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal dismissed the appeal, upholding the High Court's dismissal of the election petition. Though it found the trial Judge erred in holding that Bijampola was not the 1st respondent's agent (finding agency arose by recognition and acceptance), the appellant failed to prove that bribery, publication of false statements, or violence were committed by the 1st respondent personally or by his agents with his knowledge, consent or approval to the required balance-of-probabilities standard. Allegedly bribed persons were not proven to be registered voters, and non-compliance affecting only three of ten polling stations was not substantial. The applicable standard of proof is the balance of probabilities under the Parliamentary Elections Act, applied via the Local Governments Act.

Outcome

Appeal dismissed; 1st respondent's election as LC III Chairperson of Malangala Sub-county upheld

Facts

The appellant, the 1st respondent, and three others contested for LC III Chairperson of Malangala Sub-county, Mityana District, in the Local Council elections held on 3 February 2021. The Electoral Commission declared the 1st respondent winner with 1,361 votes against the appellant's 1,253 votes, a margin of 108 votes. The appellant petitioned the High Court alleging the election was marred by bribery, violence, intimidation, threats, and false statements that he had died or withdrawn. On the eve of polling day the appellant was allegedly assaulted, losing a tooth and requiring hospitalisation, so he did not vote. He alleged the 1st respondent and his agents, including one Bijampola, bribed voters and orchestrated the violence. The High Court dismissed the petition, finding the allegations unproven on a balance of probabilities. The appellant appealed on six grounds concerning the trial Judge's evaluation of evidence on illegal practices, election offences, and non-compliance affecting the result.

Issues

1. Whether the trial Judge erred in evaluating the evidence in finding that the 1st respondent was validly elected.
2. Whether the amended Memorandum of Appeal, filed without leave and never lodged in Court, was properly before the Court.
3. Whether the 1st respondent or his agents committed the offence of bribery to the required standard of proof.
4. Whether Bijampola was an agent of the 1st respondent.
5. Whether the offence of publishing false statements against the appellant was proved to the satisfaction of the court.
6. Whether the offence of undue influence through violence and intimidation was committed by the 1st respondent personally or through his agents with his knowledge and consent or approval.
7. Whether irregularities and non-compliance with electoral laws affected the result of the election in a substantial manner.
8. Whether the trial Judge erred in awarding costs to the respondents.
9. What is the applicable standard of proof in Local Council election petitions.

Orders

• The amended Memorandum of Appeal is struck off the court record.
• Appeal dismissed with costs to the respondents.

Rules and key headnotes

Legislation cited (17)

• Local Governments Act s.147
• Local Governments Act s.148(2)
• Local Governments Act s.154
• Local Governments Act s.139(c)
• Local Governments Act s.128
• Local Governments Act s.172
• Local Governments Act s.1(1)(q)
• Parliamentary Elections Act s.61(3)
• Parliamentary Elections Act s.2(1)
• Presidential Elections Act s.59(6)
• Electoral Commission Act s.12(1)(e) and (f)
• Electoral Commission Act s.24
• Constitution of the Republic of Uganda Article 61
• Civil Procedure Act s.27
• Civil Procedure Rules Order 6 Rule 19
• Oaths Act s.10
• Rules of the Court of Appeal rule 30(1)

Cases cited (24)

• Igeme Nathan Samson Nabeta v Mwiru Paul (Election Petition Appeal No. 46 of 2022)
• Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
• Ernest Kiiza v Kabakumba Masiko (Election Petition No. 44 of 2016)
• Kaija William v Byamukama James (Election Petition No. 12 of 2006)
• Odo v Tayebwa and Electoral Commission (Election Petition Appeal No. 13 of 2011)
• Mathina Bwambale v Crispus Kyonga and The Electoral Commission (Election Petition No. 7 of 2007)
• Wakayima Musoke and Electoral Commission v Kasule Robert Sebunya (Election Petition No. 72 of 2016)
• Kasirye Zzimula v Bazigatirawo Kibuuka Francis and Another [2019] UGCA 45
• Gaddafi Nassur v Sekabira Denes and Another (Election Petition No. 56 of 2021)
• Achieng Sarah and Electoral Commission v Ochwo Nyakecho Keziah (Election Petition Appeal No. 39 of 2012)
• Col. (Rtd) Dr. Kizza Besigye v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2001)
• Amama Mbabazi and Electoral Commission v Musinguzi Garuga James (Election Petition No. 12 of 2002)
• Fred Badda and Another v Prof. Muyanda Mutebi (Election Petition No. 25 of 2006)
• Hellen Odoa v Alaso Alice (Election Petition No. 3 of 2016)
• Sarah Bireete v Bernadette Birigwa (Election Petition No. 13 of 2003)
• Hon. George Patrick Kasajja vs Frederick Ngobi Gume & Electoral Commission
• Muhindo Rehema v Winfred Kiza and Electoral Commission (Election Petition Appeal No. 29 of 2011)
• Kamba Saleh Moses v Namuyangu (Election Petition Appeal No. 27 of 2011)
• Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
• Director of Public Prosecutions v Hester [1972] 3 All ER 1056
• Director of Public Prosecutions v Kilbourne [1973] 1 All ER 440
• Borough of Hackney Gill vs Reed [1874] XXXI L.J. 69
• Odo v Tayebwa, Bassajjabalaba Nasser and Electoral Commission (Election Petition Appeal No. 13 of 2011)
• Lanyero Sarah Ochieng and Electoral Commission v Lanyero Molly (Election Petition Appeal No. 32 of 2011)

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