Hon.Tayebwa v Kakuunarinda & Anor (Election Petition Appeal No. 86 of 2016)

Observed later treatment

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 an appeal against the dismissal of a parliamentary election petition. It held that where all parties agreed at scheduling on timelines for filing affidavits, the petitioner was estopped under section 114 of the Evidence Act from complaining that the first respondent's affidavits were filed late. The trial Judge properly exercised her discretion to sever falsehoods from affidavits of illiterate deponents and rely on parts confirmed on cross-examination. Deponents not availed for cross-examination provided evidence of the weakest kind. The petitioner failed to prove bribery and illegal practices on the higher standard applicable to election petitions, and failed to show non-compliance substantially affected the result. Costs were properly awarded to the respondents.

Outcome

Appeal dismissed; High Court judgment upholding the election of the first respondent confirmed

Facts

Following parliamentary elections on 18 February 2016 for the Bushenyi-Ishaka Municipality Constituency, the second respondent (Electoral Commission) declared the first respondent, Gordon Kakuunarinda, elected with 6,457 votes (40.53%), ahead of the appellant, Hon. Odo Tayebwa, who polled 5,334 votes (33.48%). The appellant petitioned the High Court at Mbarara alleging bribery, illegal practices and electoral offences contrary to the Parliamentary Elections Act. During trial, the first respondent filed 57 affidavits on 16 and 17 May 2016, after the ten-day period under Rule 8(1). At scheduling on 16 May 2016 all counsel agreed on filing timelines. Thirty-five affidavits of illiterate deponents contained a clause stating they had read the affidavits they responded to, contradicting jurat statements of illiteracy. Several petitioner witnesses were not availed for cross-examination. Numerous bribery allegations were advanced but were riddled with contradictions between witnesses and no reports were made to authorities. The High Court dismissed the petition with costs.

Issues

1. Whether the trial Judge was right in holding that the late filing of 57 affidavits in support of the first respondent's answer did not lead to injustice and could not be struck out.
2. Whether the trial Judge was right to resolve the petition while relying on 35 affidavits each containing a falsehood that the illiterate deponent had read and understood the affidavit responded to.
3. Whether the trial Judge was right not to rely on affidavits of deponents not availed for cross-examination.
4. Whether the trial Judge erred in holding that the petitioner failed to prove that the first respondent personally or through agents committed an election offence or illegal practice.
5. Whether the trial Judge properly evaluated the evidence on non-compliance with electoral laws and whether such non-compliance affected the results in a substantial manner.
6. Whether the trial Judge was right to order the petitioner to pay the costs of the petition.

Orders

• Appeal dismissed.
• Judgment of the High Court upheld.
• Appellant to pay the costs of the first and second respondents of the appeal and those in the Court below.

Rules and key headnotes

Legislation cited (16)

• Constitution of Uganda Article 61(1)(a)
• Constitution of Uganda Article 126(2)(e)
• Parliamentary Elections Act 2005 s.61(1)
• Parliamentary Elections Act 2005 s.61(3)
• Parliamentary Elections Act 2005 s.65
• Parliamentary Elections (Interim Provisions) Rules Rule 8(1)
• Parliamentary Elections (Interim Provisions) Rules Rule 8(3)
• Parliamentary Elections (Interim Provisions) Rules Rule 15(1)
• Parliamentary Elections (Interim Provisions) Rules Rule 15(2)
• Parliamentary Elections (Interim Provisions) Rules Rule 17
• Evidence Act s.114
• Civil Procedure Act s.27
• Civil Procedure Rules Order 12
• Illiterates Protection Act Cap. 78
• Oaths Act Cap. 19
• Rules of the Court of Appeal Rule 29

Cases cited (13)

• Achieng Sarah Opendi v Electoral Commission (Election Petition Appeal No. 39 of 2011)
• Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
• Sitenda Sebalu v Sam K. Njuba (Election Appeal No. 26 of 2007)
• Yowasi Kabiguruka v Samuel Byarufu (Civil Appeal No. 18 of 2008)
• Col. (Rtd) Dr. Kizza Besigye v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2001)
• Yona Kanyomozi v Motor Mart (U) Ltd (Civil Application No. 8 of 1989)
• Muhindo Rehema v Winfred Kiiza & Another (Election Petition Appeal No. 29 of 2011)
• Paddy Kabagambe & Another v Bwambale Bihande Yokasi & Another (Election Petition No. 11 of 2006)
• Kamba Saleh Moses v Hon. Namuyangu Jennifer (Election Petition Appeal No. 27 of 2011)
• Masiko Winfred Komuhangi v Babihuga (Election Petition Appeal No. 9 of 2002)
• Alfred Tajar v Uganda (Criminal Appeal No. 197 of 1969)
• Aligawesa Philip v Byandala Abraham James & Another (Election Petition Appeal No. 24 of 2011)
• Presidential Election Petition No. 1 of 2006

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Mbaju Jackson v Thembo Gideon Mujungu and Electoral Commission (Election Petition Appeal 46 of 2021)

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