Wakilii

Kafeero Sekitoleko Robert v. Mugambe Joseph Kifomusana (HC-EP- 006-2011)

High Court · [2011] UGHC 70 · 2011 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out amended election petition arising from parliamentary elections
Decision
Petition dismissed; amended petition and original petition both struck out for incompetence

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that an amended election petition filed without leave of court, changing the character from an appellate petition under the Appeals Rules to an original petition under the Election Petition Rules, and seeking to challenge a Chief Magistrate's recount order, was incompetent. The court struck out both the amended petition and the original petition, finding no decision of the Electoral Commission to appeal against and holding that once results are gazetted, petitions must be brought under the Election Petition Rules, not the Appeals Rules.

Outcome

Petition dismissed; amended petition and original petition both struck out for incompetence

Facts

Parliamentary elections for Nakifuma Constituency were held on 18 February 2011. Kafeero Sekitoleko Robert (applicant) was declared the winner. On 9 March 2011, Mugambe Joseph Kifomusana (respondent) filed an election petition under the Parliamentary Elections (Appeals to the High Court from Commission) Rules 1996. On 28 March 2011, the respondent filed an amended petition under the Parliamentary Elections (Election Petition) Rules. The applicant filed an answer to the original petition on 24 March 2011, within the time stipulated in a court notice but nine days after service (beyond the two-day period in the Appeals Rules). On 7 April 2011, the applicant applied to strike out the amended petition. The respondent's complaint originally related to alleged irregularities in tally sheets at certain polling stations, a recount ordered by the Chief Magistrate, and the Electoral Commission's refusal to correct errors. The election results were gazetted on 7 March 2011.

Issues

  1. Whether a chamber application is defective if grounds are stated in the supporting affidavit rather than in the chamber summons itself.
  2. Whether an application to strike out an amended petition is a formal objection within the meaning of Rule 26 of the Parliamentary Elections (Election Petition) Rules.
  3. Whether an applicant who filed an answer to the original petition has locus standi to challenge an amended petition without filing a fresh answer.
  4. Whether the amended petition was filed within the permitted time and whether leave of court was required.
  5. Whether the amendment changed the nature of the suit and the cause of action from an appellate petition to an original petition.
  6. Whether the High Court has jurisdiction to hear an appeal or challenge against a recount order made by the Chief Magistrate's Court.
  7. Whether an election petition can be sustained under the Parliamentary Elections (Appeals to the High Court from Commission) Rules where no decision of the Electoral Commission has been made.
  8. Whether an election petition can be filed against a gazetted winner under the Appeals Rules or must be brought under the Election Petition Rules.

Orders

  • The preliminary objections to the Application raised by the respondent are overruled.
  • The application to disallow and strike out the Amended Petition is allowed.
  • The Amended Petition is struck out.
  • The Petition is struck out for failure to disclose any decision of the Electoral Commission appealed against and being incompetent under the provisions of the Parliamentary Elections (Appeals to the High Court from Commission) Rules.
  • The Petition is dismissed with costs.

Rules and key headnotes

Chamber Applications — Grounds of Application — Form and Content
There is no statutory requirement for a chamber summons to state the grounds upon which the application is founded. Grounds may be stated in a supporting affidavit which is incorporated by reference and served with the chamber summons without prejudice to the opposite party.
Election Petitions — Formal Objections — Application of Rule 26
Rule 26 of the Parliamentary Elections (Election Petition) Rules, which provides that no proceedings upon a petition shall be defeated by any formal objection, relates to formal objections concerning documents sent by the Registrar. It does not extend to substantive objections as to the procedure by which a petition comes before court or to matters tainted with illegality. A petition must be before court by proper procedure before Rule 26 can operate to save it.
Election Petitions — Answer to Petition — Locus Standi
A respondent who has filed an answer to an original election petition is not under an obligation to file a fresh answer to an amended petition. Under Order 6 Rule 22 of the Civil Procedure Rules, if the opposite party has already pleaded before service of the amendment and does not plead again or amend within the specified time, he shall be deemed to rely on his original pleading in answer to that amendment.
Election Petitions — Amendment Without Leave — Interlocutory Matters
Rule 24 of the Parliamentary Elections (Election Petition) Rules requires all interlocutory questions and matters arising out of the trial of a petition to be heard and disposed of by a judge. Amendment of an election petition is an interlocutory matter requiring leave of court. Any amendment made without such leave is incompetent. The word 'trial' in Rule 24 is broader than 'hearing' and includes every step taken in relation to the petition.
Election Petitions — Amendment Changing Cause of Action — Distinction Between Appellate and Original Petitions
An amendment that changes the character of a petition from an appellate petition under the Parliamentary Elections (Appeals to the High Court from Commission) Rules to an original petition under the Parliamentary Elections (Election Petition) Rules changes the nature and cause of action. The two types of petition differ in character, grounds, parties, and statutory basis. Such an amendment constitutes a substitution of a distinctive cause of action and cannot be allowed.
Recount by Chief Magistrate — Challenge Through Petition — Jurisdiction
The High Court under section 15 of the Electoral Commission Act is mandated to hear appeals against decisions of the Electoral Commission, not appeals arising from a recount ordered by the Chief Magistrate under section 55 of the Parliamentary Elections Act. A candidate aggrieved by the recount order results of the Chief Magistrate may file an election petition under sections 60 and 61 of the Parliamentary Elections Act, but cannot transform an election petition into a challenge of the recount order itself.
Appellate Petitions — Requirement of Electoral Commission Decision — Gazetted Results
A petition under the Parliamentary Elections (Appeals to the High Court from Commission) Rules can only be sustained where there is a decision of the Electoral Commission confirming or rejecting the existence of an irregularity. Once the Commission has completed its mandate by ascertaining, declaring and publishing results in the Gazette, it ceases to have any mandate to revisit the results. After gazettement, any complaint against the elected person must be brought under the Election Petition Rules, not the Appeals Rules.

Legislation cited (26)

Cases cited (14)

  • Mugalula Mukiibi v Colline Hotel Ltd [1984] HCB 35
  • Odongkara & Others v Komakech and Another [1968] EA 210
  • F.D. Sebamala v The Registered Trustees of Namirembe Diocese and Another [1988-1990] HCB 114
  • Ssali Godfrey v UEC and Kabaale Sulaiman (Election Petition No. 13 of 2011)
  • Utex Industries Ltd v Attorney General (SCC Application No. 52 of 1995)
  • Bakaluba Peter Mukasa v Nambooze Betty Bakireke (SCEP Appeal No. 04 of 2009)
  • Benon Lubuye Kiwanuka v Electoral Commission & Daniel Kikoola (EPA No. 2 of 1999)
  • Mathina Bwambale v EC & Krispus Kiyonga (HCT-01-CV-EP-0007-2006)
  • Eastern Bakery v Castelino [1955] EA 461
  • Ntungamo District LC v John K. Karazarwe [1997] 111 KALR 52
  • Lubowa Gyaviira & Others v Makerere University (HCT-00-CV-MA-0471-2009)
  • Ngoma Ngime v Electoral Commission & Another (Election Petition Appeal No. 11 of 2002)
  • Nyakecho Kezia Ochwa v Electoral Commission & Another (HCT-04-CV-EP-0011-2006)
  • Byanyima Winnie v Ngoma Ngime (Civil Revision No. 0009 of 2001)

Full judgment

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Kafeero Sekitoleko Robert Vs. Mugambe Joseph Kifomusana (HC-EP- 006-2011) [2011] UGHC 70 (6 June 2011)
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.