Wakilii

Hon. Mujuni KyamadidI v Hon. Ngabirano (Election Petition Appeal No. 84 of 2016)

Court of Appeal · [2017] UGCA 45 · 2017 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court decision dismissing a parliamentary election petition
Decision
Appeal dismissed; election of the 1st respondent as Member of Parliament for Rwampara County Constituency upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed an appeal from the High Court's dismissal of a parliamentary election petition. The Court reaffirmed that the burden lies on the petitioner to prove allegations of non-compliance, bribery, intimidation and ballot stuffing on a balance of probabilities and to the satisfaction of the Court. The appellant's affidavit evidence was found contradictory and uncorroborated; allegations of a campaign of terror, vehicle-based intimidation, bribery and unsigned DR Forms were not proved. Where polling stations with irregular results were cancelled, all candidates were equally affected. Failure of a candidate's agents to sign DR Forms does not invalidate a result where the presiding officer signed. The trial Judge applied the correct standard and was not biased.

Outcome

Appeal dismissed; election of the 1st respondent as Member of Parliament for Rwampara County Constituency upheld

Facts

On 18 February 2016 the appellant and the 1st respondent were among five candidates for the parliamentary seat of Rwampara County Constituency, Mbarara District. The Electoral Commission declared the 1st respondent winner with 25,289 votes against the appellant's 21,607 votes. The appellant petitioned the High Court alleging that the 1st respondent was not validly elected, asserting a campaign of terror, intimidation and violence, use of the 1st respondent's motor vehicle to terrorise voters, ballot stuffing and multiple voting, 100% voter turn-up at 14 polling stations, voting for dead persons, unsigned Declaration of Results Forms, bribery at Kitwe, and connivance by the Electoral Commission. The High Court dismissed the petition, finding none of the allegations proved on a balance of probabilities, and confirmed the 1st respondent's election with costs. The appellant appealed.

Issues

  1. Whether the grounds of appeal in the amended memorandum of appeal conformed to rule 86 of the Rules of the Court of Appeal.
  2. Whether the trial Judge failed to adequately evaluate the evidence and wrongly concluded there was no proof of non-compliance in the conduct of the election.
  3. Whether the trial Judge erred in holding that any non-compliance did not affect the result of the election in a substantial manner.
  4. Whether the trial Judge erred in exonerating the 1st respondent from commission of illegal practices or election offences personally or through his agents.
  5. Whether the trial Judge mixed the principles governing non-compliance with those governing illegal practices.
  6. Whether the trial Judge erred by failing to distinguish between the legal and evidential burden of proof.
  7. Whether the trial Judge erred in holding that counsel for the petitioner withdrew exhibits from Court and whether she was biased.
  8. Whether the trial Judge's order as to costs was justified and what remedies were available.

Orders

  • The decision and orders of the learned trial Judge are upheld.
  • The 1st respondent is the validly elected Member of Parliament for Rwampara County Constituency.
  • The appellant shall bear the costs of the appeal and the trial Court.

Rules and key headnotes

Election Petitions — Burden and Standard of Proof — Balance of Probabilities to the Satisfaction of Court
In a parliamentary election petition the legal burden lies on the petitioner to prove the allegations on a balance of probabilities to the satisfaction of the Court; the more serious the allegation, the stronger the evidence required, and the evidential burden shifts as the weight of evidence varies.
Election Petitions — Substantial Effect — Assessment of Effect on Result
An election will only be set aside where non-compliance is proved to have affected the result in a substantial manner; the effect must be calculated to really influence the result significantly, and where the winning margin remains large after adjusting for proved irregularities the result is not affected.
Election Petitions — Declaration of Results Forms — Signature by Agents
Signing of the Declaration of Results Form by the presiding officer is mandatory, but mere failure by a candidate's agent to sign a DR Form, in the absence of a valid reason, does not invalidate an otherwise valid result at a polling station.
Election Petitions — Bribery — Particulars Required
To prove election bribery the petitioner must establish with precision who gave money, who received it and that it was given with intent to influence the vote, and that the alleged recipients were registered voters; merely seeing persons in a line being given money is insufficient.
Election Petitions — Alibi and Corroboration
Where a respondent raises an alibi, such as that a vehicle alleged to have been used to intimidate voters was elsewhere undergoing repairs, the petitioner's evidence must be corroborated in order to destroy the alibi; uncorroborated allegations attract a benefit of the doubt.
Witness Credibility — Impeachment by Prior Inconsistent Statements and Contradictory Documents
Affidavit evidence riddled with contradictions, inconsistencies between affidavits and supporting medical reports, and shared or unattributed exhibits is unreliable and may be disregarded; the credit of a witness may be impeached under section 154 of the Evidence Act.
Judicial Bias — Test of Apparent Bias
Apparent bias is established only where a fair-minded and informed observer, considering all the circumstances, would conclude that there was a real possibility the tribunal was biased; an unsuccessful party's normal apprehension as to the outcome does not amount to proof of bias.

Legislation cited (15)

Cases cited (17)

  • Selle V Associated Motor Boat Co. (1968) EA 123
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
  • Paul Mwiru v Hon. Igeme Nathan Nabeta and 2 Others (Election Petition Appeal No. 6 of 2011)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Amama Mbabazi and Another v Musinguzi Garuga James (Election Petition Appeal No. 12 of 2002)
  • John Ken Lukyamuzi v Attorney General (Constitutional Petition No. 2 of 2007)
  • Rabi Gershom Sizomu Wambedde v Electoral Commission (Parliamentary Election Petition No. 6 of 2011)
  • Rtd. Col. Dr. Kizza Besigye v Yoweri Kaguta Museveni and Electoral Commission (Presidential Election Petition No. 1 of 2006)
  • Banatib Issa Taligola v Electoral Commission and Wasugirya Bob Fred (Election Appeal No. 11 of 2006)
  • Joy Kafura Kaba ... Kawooya Supreme Court Election Appeal No.25
  • John Cossy Odomel v Electoral Commission and Louis Opange (Election Petition No. 6 of 2006)
  • Toolit Simon Akecha v Oulanyah Jacob L'okori and Electoral Commission (Election Petition No. 1 of 2011)
  • Col. (Rtd) Dr. Besigye Kizza v Museveni Yoweri Kaguta and Another (Election Petition No. 1 of 2001)
  • Porter V Magill (2002) AC 357
  • Home Department V Rehman (2003) 1 AC 153
  • Hackney & Morgan V Simpson

Full judgment

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

Hon. Mujuni KyamadidI Vs Hon. Ngabirano (Election Petition Appeal No. 84 of 2016) [2017] UGCA 45 (27 October 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.