Wakilii

Kaija William and Another v Electoral Commission and Another (Election Petition Appeal No. 12 of 2006)

Court of Appeal · [2007] UGCA 86 · 2007 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court decision setting aside a Local Council V Chairperson election and ordering fresh elections
Decision
Appeal dismissed by majority; High Court decision setting aside the election and ordering fresh elections upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

By a majority of two to one, the Court of Appeal dismissed the appeal. The majority (Engwau and Okello JJA) held that section 142(2) of the Local Government Act and rule 13(1) of the Election Petitions Rules are directory, not mandatory, so the trial judge retained jurisdiction to deliver judgment after three months; that section 172 of the Local Government Act imported section 42 of the Parliamentary Elections Act into local council elections; and that the standard of proof and evidential findings were sound. Kavuma JA dissented, finding the unsigned petition and unpaid court fees fatal, the time limit mandatory, and section 172 inapplicable.

Outcome

Appeal dismissed by majority; High Court decision setting aside the election and ordering fresh elections upheld

Facts

Kaija William and Byamukama K. James contested the election for LCV Chairperson of Kyenjojo District, organized by the Electoral Commission and held on 2 March 2006. Kaija was declared winner with 39,417 votes (53.5%) against Byamukama's 34,259 (46.5%). Byamukama petitioned the High Court at Fort Portal challenging the election's validity, alleging electoral malpractices, election offences and rigging, and that Kaija personally and through his agents committed illegal practices including using a Local Government vehicle for campaigns, carrying an AK-47 rifle at Matiri Trading Centre polling station, bribery and undue influence. The trial judge found the first appellant and his agents committed illegal practices, set aside the election and ordered fresh elections, even though the judge found the malpractices did not affect the result in a substantial manner. Judgment was delivered on 15 September 2006, one month beyond the three-month statutory period from filing on 15 May 2006.

Issues

  1. Whether the trial judge's orders setting aside the election were valid given the statutory time limits under section 142(2) of the Local Government Act and rule 13(1) of the Election Petitions Rules.
  2. Whether the affidavits relied upon by the petitioner, including those with a deviating jurat, were properly admitted.
  3. Whether section 172 of the Local Government Act imported section 42 of the Parliamentary Elections Act (arms at polling stations) into local council elections.
  4. Whether the trial judge applied the correct standard of proof in election petitions.
  5. Whether the first appellant committed election offences and illegal practices personally or through his agents with his knowledge, consent or approval.
  6. Whether the trial judge properly evaluated the evidence.

Orders

  • Appeal dismissed by a majority of two to one.
  • Costs of the appeal awarded to the respondent.
  • Certificate for two lawyers issued.

Rules and key headnotes

Election Petitions — Statutory Time Limits — Whether Directory or Mandatory
The word 'shall' in section 142(2) of the Local Government Act and rule 13(1) of the Parliamentary Elections (Election Petitions) Rules is directory, not mandatory; the court retains jurisdiction to hear and determine an election petition after expiry of the prescribed three-month period, since a mandatory reading would oust jurisdiction and prejudice aggrieved candidates.
Local Government Act — Section 172 — Importation of Parliamentary Elections Law
Section 172 of the Local Government Act permits the parliamentary elections law in force to apply, with necessary modifications, to any issue not provided for under the Act; thus the offence of carrying arms at a polling station under section 42 of the Parliamentary Elections Act applies to local council elections.
Election Petitions — Standard of Proof
The standard of proof in an election petition is proof to the satisfaction of the court, a high standard higher than the ordinary civil balance of probabilities though not requiring proof beyond reasonable doubt, the degree of probability depending on the gravity of the matter alleged.
Affidavits — Jurat for Illiterate Deponents — Deviation from Prescribed Form
A jurat that deviates from the form prescribed by the Oaths Act for affidavits sworn by illiterate deponents is not thereby rendered void where it substantially conveys the same meaning and is not calculated to mislead, by virtue of section 43 of the Interpretation Act.
Election Petitions — Agency — Liability of Candidate for Acts of Agents
The principles of agency for electoral purposes apply with equal force to local council elections; a candidate is liable for illegal acts of agents whom he appointed, authorised, or whose work he adopted, where committed with his knowledge, consent or approval.
Illegality — Court's Duty to Take the Point — Effect of Unsigned Petition and Unpaid Fees (dissent)
Per Kavuma JA (dissenting): illegality once brought to the court's attention overrides all questions of pleading and may be raised at any time; failure to sign an election petition contrary to section 138(1) of the Local Government Act and failure to pay court fees on supporting affidavits renders the petition and its evidence a nullity.

Legislation cited (19)

  • Local Government Act (Cap 243) s.126
  • Local Government Act (Cap 243) s.128(4)
  • Local Government Act (Cap 243) s.138(1)
  • Local Government Act (Cap 243) s.139(c)
  • Local Government Act (Cap 243) s.142(2)
  • Local Government Act (Cap 243) s.142(5)(c)
  • Local Government Act (Cap 243) s.147
  • Local Government Act (Cap 243) s.154
  • Local Government Act (Cap 243) s.172
  • Parliamentary Elections Act 2005 s.42
  • Parliamentary Elections Act 2005 s.61(1)
  • Parliamentary Elections (Election Petitions) Rules r.13(1)
  • Parliamentary Elections (Election Petitions) Rules r.19
  • Interpretation Act s.43
  • Judicature (Court Fees) Rules S.I 13-1
  • Judicature (Fees) (Election Petitions) Rules S.I 13-2
  • Judicature (Court Fees, Fines and Deposits) Rules S.I 13-3 r.4
  • Judicature (Court Fees, Fines and Deposits) Rules S.I 13-3 r.6
  • Oaths Act

Cases cited (14)

  • Makula International Ltd v Cardinal Nsubuga (Civil Appeal No. 4 of 1981)
  • Besigye v Museveni (Presidential Election Petition No. 1 of 2006)
  • Besweri Lubuye Kibuka Vs. Electoral Commission & Another Election Petition No. 12 of 1998 and No. 2 of 1999
  • Attorney General v Ssemwogerere (Constitutional Petition No. 3 of 2000)
  • Howard v Secretary of State for the Environment [1975] QB 235
  • Edward Byaruhanga Katumba v Daniel Kiwalabye Musoke (Election Petition Appeal No. 2 of 1998)
  • Besigye v Museveni (Presidential Election Petition No. 1 of 2001)
  • Target Singh Baines Vs. Ishamael Mohamed Chogley (1949 - 1950) EA 27
  • Phillips v Copping [1935] 1 KB 15
  • Blyth v Blyth [1966] AC 643
  • Sawoabiri and Musisi v Uganda (Criminal Appeal No. 5 of 1990)
  • Kibengi v Uganda (Criminal Appeal No. 19 of 1997)
  • Mbayo Jacob Robert v Electoral Commission (Election Petition Appeal No. 7 of 2006)
  • Uganda Vs. Sabuni [1981] HCB

Full judgment

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Kaija William and Another v Electoral Commission and Another (Election Petition Appeal No. 12 of 2006) [2007] UGCA 86 (19 September 2007)
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.