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Freda Nanziri Kase Mubanda v Mary Babirye Kabanda and Another (Election Petition Appeal 38 of 2016)

Court of Appeal · [2017] UGCA 180 · 2017 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court dismissal of an election petition challenging the election of a Woman Member of Parliament
Decision
Appeal dismissed; 1st respondent Mary Babirye Kabanda remains the elected Woman Member of Parliament for Masaka District

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Judicial journey

Appeal & case history

2 linked decisions

Follow this matter from the decision below through each appellate court.

Affirmed The decision below was upheld.
See the court’s words
“In the result, we uphold the trial Judge's decision and dismiss the appeal with costs to the respondents, both here and in the court below.”
Court of Appeal This decision
Freda Nanziri Kase Mubanda v Mary Babirye Kabanda and Another (Election Petition Appeal 38 of 2016) [2017] UGCA 180 (22 March 2017)
[2017] UGCA 180
No later appellate decision was located in the Wakilii corpus. Linked from court records and operative language in the judgments.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court of Appeal dismissed the appeal against dismissal of an election petition. It held the trial Judge did not deny a fair hearing since no formal adjournment was applied for and witnesses' affidavits were properly expunged after the witnesses failed to appear for cross-examination. Alleged falsification of results and bribery were not proved to the required standard on a balance of probabilities. Although the trial Judge misdirected himself by applying a higher standard of proof than the balance of probabilities prescribed by section 61(3) of the Parliamentary Elections Act, the re-evaluation of evidence under the correct standard reached the same conclusion. Non-compliance did not affect the results substantially and the costs order was upheld.

Outcome

Appeal dismissed; 1st respondent Mary Babirye Kabanda remains the elected Woman Member of Parliament for Masaka District

Facts

In the 18 February 2016 general parliamentary elections, the appellant, the 1st respondent and a third candidate contested the Woman Member of Parliament seat for Masaka District. The Electoral Commission declared the 1st respondent the winner with 53,518 votes against the appellant's 33,837 votes. The appellant petitioned the High Court at Masaka alleging bribery of voters by the 1st respondent, interference in the electioneering process by the Electoral Commission, and connivance to falsify results at named polling stations. At trial, several of the appellant's witnesses failed to appear for cross-examination on the scheduled dates and their affidavits were expunged. The trial Judge dismissed the petition, finding non-compliance did not affect the results substantially and that no electoral offences were proved. The appellant appealed, contending she was denied a fair hearing, that widespread falsification of results and bribery occurred, and that the trial Judge failed to evaluate the evidence and wrongly awarded costs.

Issues

  1. Whether the trial Judge erred in disallowing an adjournment and expunging the appellant's witnesses' affidavits, thereby denying a fair hearing.
  2. Whether non-compliance with electoral laws affected the results of the election in a substantial manner.
  3. Whether the 1st respondent personally or through her agents committed electoral offences or illegal practices, in particular bribery.
  4. Whether the trial Judge failed to properly evaluate the evidence, and whether the correct standard of proof was applied.
  5. Whether the trial Judge erred in awarding costs against the appellant.

Orders

  • Grounds 3 and 4 disallowed.
  • Ground 1 answered in the negative.
  • Ground 2 dismissed.
  • Ground 5 disallowed.
  • Ground 6 dismissed.
  • The decision of the trial Judge is upheld and the appeal is dismissed with costs to the respondents, both here and in the court below.

Rules and key headnotes

Adjournments — Judicial Discretion — Duty to Formally Apply with Sufficient Cause
The grant or refusal of an adjournment is a matter of judicial discretion; a party who did not formally apply for an adjournment supported by valid reasons cannot later complain of having been denied one, and mere counsel's statement that not all witnesses were summoned is not sufficient cause.
Fair Hearing — Expunging Affidavits of Witnesses Absent for Cross-Examination
Where a party is on notice of the hearing dates and fails to produce witnesses for cross-examination without sufficient explanation, the court may properly expunge their affidavits from the record without violating the right to be heard under Articles 28 and 44 of the Constitution.
Setting Aside an Election — Non-Compliance Affecting Results in a Substantial Manner
Under section 61(a) of the Parliamentary Elections Act, an election is set aside for non-compliance only where the court is satisfied the non-compliance affected the result in a substantial manner; minor human errors, such as incorrect entries of the number of male and female voters, that do not alter the votes obtained by candidates are insufficient.
Bribery — Proof of Illegal Practice under Section 68
An allegation of bribery as an illegal practice under section 68 of the Parliamentary Elections Act must be proved by the petitioner with sufficient credible evidence; hearsay from officers who did not witness the bribery, unproduced exhibits, and contradictory or untruthful witness testimony will not discharge that burden.
Standard of Proof — Parliamentary Elections Petitions
The standard of proof in a parliamentary election petition is proof on a balance of probabilities as prescribed by section 61(3) of the Parliamentary Elections Act; the higher standard applicable to presidential election petitions is inapplicable, and a trial court that applies it misdirects itself.
Costs — Discretion — Costs Follow the Event
Costs in civil matters follow the event unless the court for good reason orders otherwise, and an appellate court will not interfere with the trial court's discretion on costs absent failure to exercise discretion, failure to take account of a material consideration, or error in principle.

Legislation cited (14)

Cases cited (15)

  • Nuru Kaaya v Crescent Transportation Ltd (Civil Appeal No. 6 of 2002)
  • Fr. Narsensio Begumisa v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Coghlan VS. Cumberland (1898) 1 Ch. 704
  • Pandya vs. R (1957) EA 336
  • Uganda Law Society and Anor v Attorney General (Constitutional Petitions Nos. 2 of 2002 and 8 of 2008)
  • Uganda Electricity Board v Luande Stephen Sanya (Civil Appeal No. 1 of 2000)
  • Yahaya Kiriisa v Attorney General and Anor (Civil Appeal No. 7 of 1994)
  • Nitin Jayant Madvani v East African Holdings Ltd and 5 Others (Civil Appeal No. 14 of 1993)
  • Rt. Col. Dr. Kizza Besigye v Yoweri Kaguta Museveni and Another (Presidential Election Petition No. 1 of 2001)
  • Mbowe Versus Eliuffo (1967) EA 240
  • Nadimo Versus The Independent Electoral Commission & Ors, (2011)1 EA 355 / Nadimo Versus Independent Electoral and Boundaries Commission & Others [2014] 1 EA 355
  • Amama Mbabazi v Museveni and 2 Others (Election Petition No. 1 of 2016)
  • Paul Mwiru v Igeme Nathan Nabeta Samson and 2 Others (Election Petition Appeal No. 6 of 2011)
  • Bank Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Twiga Chemical Industries Ltd v Viola Chemical Industries Ltd (Civil Appeal No. 9 of 2002)

Full judgment

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

Freda Nanziri Kase Mubanda v Mary Babirye Kabanda and Another (Election Petition Appeal 38 of 2016) [2017] UGCA 180 (22 March 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.