Wakilii

Byakatonda v Kamihingo and Another (Election Petition No. 12 of 2021)

High Court · [2021] UGHCEP 37 · 2021 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the validity of nomination and election of the 1st Respondent as Chairperson of Ntuusi Town Council
Decision
Petition dismissed — 1st Respondent's election as Chairperson of Ntuusi Town Council upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the petition was competently before the court. The petitioner had lodged a pre-polling complaint with the Electoral Commission which was not addressed, entitling him to bring the matter to court. The court had previously validated the petition and could not sit in appeal of its own decision. On the merits, the 1st Respondent satisfied the requirements of ordinary residence under s.111(4)(b) of the Local Government Act by owning property at Ntuusi Town Council where he resided with a spouse, and was a registered voter at Kashozikamwe C.O.U polling station in Ntuusi Town Council at the time of nomination, satisfying s.111(4)(d). Petition dismissed with costs.

Outcome

Petition dismissed — 1st Respondent's election as Chairperson of Ntuusi Town Council upheld

Facts

The petitioner and 1st respondent were candidates for Chairperson of Ntuusi Town Council, Ssembabule District in elections held on 3 February 2021. The Electoral Commission declared the 1st respondent the winner. The petitioner challenged the nomination and election on grounds that the 1st respondent was neither ordinarily resident nor registered as a voter at Ntuusi Town Council. The petitioner claimed the 1st respondent was ordinarily resident at Gantaama B, Ishara Parish, Nabitanga Sub County and registered as a voter there. The petitioner had lodged a complaint with the Electoral Commission on 24 December 2020 but received no response. The 1st respondent contended he owned property at Ntuusi Town Council where he resided with a spouse, Namara Esther, and was a registered voter at Kashozikamwe C.O.U polling station in Ntuusi Town Council. The 1st respondent also had a home at Kamoshe where another spouse, Jolly Kyarimpa, resided.

Issues

  1. Whether the Petition is competently before this Court.
  2. Whether the 1st Respondent was validly nominated and elected as Chairperson for Ntuusi Town Council.
  3. What remedies are available to the parties.

Orders

  • Petition dismissed with costs.

Rules and key headnotes

Electoral Law — Pre-Polling Complaints — Duty of Electoral Commission — Effect of Failure to Determine Complaint
Where a petitioner lodges a pre-polling complaint with the Electoral Commission challenging the validity of a candidate's nomination and the Electoral Commission fails to address or determine the complaint, the petitioner is not estopped from bringing the matter before court in an election petition after the election.
Electoral Law — Election Petitions — Competence — Functus Officio — Review of Court's Own Decision
Once a court has pronounced a final judgment or order validating an election petition and extending time for filing, it becomes functus officio and cannot reconsider and reverse its own decision without a formal application for review. A party dissatisfied with such a decision must seek leave to appeal rather than invite the court to sit in appeal of its own decision.
Electoral Law — Qualification for Election — Ordinary Residence — Local Government Chairperson
Under s.111(4)(b) of the Local Government Act, a person is ordinarily resident at a place where in the settled routine of his or her life, he or she regularly, normally or customarily lives. A person can be absent for significant periods and still be ordinarily resident so long as he or she maintains some tie or connection with the place. All that is required is the individual's purpose of living where he or she does and a sufficient degree of continuity to enable it properly to be described as settled. A person may have more than one place of ordinary residence.
Electoral Law — Qualification for Election — Registered Voter — Local Government Chairperson
Section 111(4)(d) of the Local Government Act requires a candidate for Chairperson of a town council to be a registered voter but does not require registration in a specific area. The requirement is satisfied if the candidate is a registered voter at the time of nomination, as evidenced by the official Polling Register for General Elections.
Evidence — Documentary Evidence — Voters' Register — Official Use
A National Voters' Register marked 'NOT FOR OFFICIAL USE' cannot be relied upon to establish a person's voter registration status. The proper evidence is the official Polling Register for General Elections certified by the Electoral Commission. A voter locater downloaded from the internet without certification by the Electoral Commission is not proper evidence for official use.

Legislation cited (12)

Cases cited (25)

  • Mukasa Anthony Harris v Dr. Michael Lulume Bayiga (Supreme Court Election Petition Appeal No. 18 of 2007)
  • Paul Mwiru v Hon. Igeme Nathan Nabeta Samson and 2 Others (Election Petition Appeal No. 3 of 2011)
  • Peter Odok W'Oceng v Markly Vincent Okidi and 4 Others (Election Petition Appeal No. 29 of 2011)
  • Bandikubi Boniface Musisi and 3 Others v Sserwanga William Tom and Another (Election Petition Appeal No. 110 of 2016)
  • Kasirye Zzimula Fred v Bazigatirawo Kibuuka Francis Amooti and Electoral Commission (Election Petition Appeal No. 1 of 2018)
  • Asio Jesca v Electoral Commission and Epillo Isaac (Election Petition No. 11 of 2020)
  • Ntensibe Kibla Manoti v Electoral Commission (Election Petition Appeal No. 1 of 2021)
  • Kyagulanyi Ssentamu Robert v Yoweri Museveni Tibuhaburwa Kaguta and 2 Others (Supreme Court Miscellaneous Application No. 1 of 2021)
  • Rao and Others, (1956)1MLJ 40
  • Maude -v- Lowley (1874) L.R.9C.P. 165
  • Lowley (1883)48 L.T. 762
  • Wanyoto Lydia Mutende v Electoral Commission and Nakayenze Connie Galiwango (High Court Miscellaneous Application No. 179 of 2021)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another (Civil Appeal No. 4 of 1981) [1982] UGSC 2
  • Goodman Agencies Ltd v Attorney General and Another (Constitutional Petition No. 3 of 2008)
  • Attorney General v Goodman Agencies Ltd (Constitutional Appeal No. 5 of 2010)
  • Magdeline Makinta -v- Fostina Nkwe, Court of Appeal No. 26/2001
  • Odneste Monanyana -v- The State, Criminal Appeal No.8 of 2001 (unreported)
  • Wakayima Musoke Nsereko and Electoral Commission v Kasule Robert Sebunya (Election Petition Appeal Nos. 50 and 102 of 2016)
  • Hon. Tumuramye Genensio v Tayebwa Herbert Musasizi (Election Petition No. 3 of 2021)
  • Reg. v. Barnett London Borough Council, Ex parte Shah [1983] 1 ALL ER 226 OR [1983] 2 A.C. 309
  • Cohen -v- CIR [1946] 13 SATC 362
  • CIR -v- Kuttel [1992] 54 SATC 298
  • Lanyero Ketty v Okene Richard and Another (Court of Appeal No. 29 of 2018)
  • Lukwago and 13 Others v Electoral Commission and 2 Others (Miscellaneous Cause No. 431 of 2019)
  • Byanyima Winnie v Ngoma Ngime (Civil Revision No. 9 of 2001) [2001] UGHC 92

Full judgment

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Byakatonda v Kamihingo and Another (Election Petition No. 12 of 2021) [2021] UGHCEP 37 (4 October 2021)
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.