Kanyihe v The Electoral Commission and Another (CIVI APPLICATION NO. 13 OF 2006)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court granted the applicant leave to adduce additional evidence on appeal arising out of an election petition. Although appellate courts generally do not admit fresh evidence, fraud is an exceptional circumstance justifying its admission, and the evidence sought (the 3rd respondent's school entry records and nomination papers) also served to elucidate evidence already on record. The applicant was not time-barred since there is no statutory limit on filing evidence as opposed to a petition. In a related ruling, the presiding judge declined to recuse himself, finding no real likelihood of bias and no credible evidence to support the alleged bias, mere past membership of the same Parliament and caucus being insufficient.

Outcome

Leave to adduce additional evidence on appeal granted; recusal application dismissed

Facts

Judgment had been entered against the applicant in Election Petition No. 1 of 2006, in which the court held that the 3rd respondent had spelling mistakes in his 'O' level certificate presented for nomination and election in the February 2006 parliamentary elections for Buyikwe West Constituency. The applicant had challenged the nomination, election and declaration of the 3rd respondent on grounds, inter alia, that the 3rd respondent lacked the requisite academic qualifications and had lied to court about spelling mistakes in his names, a lie the court believed. On appeal, the applicant applied for leave to adduce additional evidence comprising the 3rd respondent's records of entry into Senior 1 at St. Mary's College Kisubi and his nomination papers, to prove the judgment was fraudulently obtained. The applicant said he obtained this material only after judgment despite extensive search. Separately, at the hearing, the 3rd respondent applied for the presiding judge to recuse himself, alleging suspicion of bias arising from the judge and applicant having both been members of the Sixth Parliament and the Movement Caucus and being close friends.

Issues

1. Whether the applicant had shown sufficient reason for the Court to exercise its discretion to grant leave to adduce additional evidence on appeal.
2. Whether the additional evidence sought to be adduced fell within an exceptional circumstance, namely fraud, justifying its admission.
3. Whether the applicant was time-barred from furnishing additional evidence in the appeal.
4. Whether the presiding judge should recuse himself on the ground of a reasonable suspicion of bias.

Orders

• Application for leave to adduce additional evidence on appeal granted.
• Additional evidence to be adduced by way of affidavit with the records of entry of the 3rd respondent to S.1 at St. Mary's College Kisubi and his nomination papers for the February 2006 elections annexed thereto.
• Costs of the application granted to the applicant/appellant.
• Application that the presiding judge step down for bias disallowed for lack of merit, with no order as to costs.

Rules and key headnotes

Legislation cited (9)

• Court of Appeal Rules r.2(2)
• Court of Appeal Rules r.30(1)(b)
• Court of Appeal Rules r.30(2)
• Court of Appeal Rules r.30(3)
• Court of Appeal Rules r.30(4)
• Court of Appeal Rules r.43
• Court of Appeal Rules r.41
• Constitution of Uganda 1995 art.28(1)
• Parliamentary Elections Act

Cases cited (18)

• Karmali Tarmohamed and Another v Lakhani [1958] EA. 567
• Rev. Fr. Narsensio Begumisa and Others v Eric John Tibebaga (Civil Application No. 64 of 2000)
• G.M. Combined (U) Ltd v A.K. Detergent Ltd and Another (Civil Appeal No. 7 of 1998)
• Fredrick J.K. Zaabwe v Orient Bank Ltd and Others (Civil Application No. 10 of 2003)
• Wamisungo Vs Galiwungo and another 1986 HCB 47
• Ladd v Marshall (1) [1954] 1 WLR 1489
• Makula International Ltd Vs. His Eminence Cardinal Nsubuga and another [1982] HCB 11
• R. Vs Yakobo Busigo s/o Mayogo [1945] 12 EACA 60
• Professor Isaac Newton Ojok v Uganda (Criminal Appeal No. 33 of 1991)
• Libyan Arab African Bank for Foreign Trade and Development and Another v Vassiliadis (Civil Appeal No. 9 of 1985)
• Metropolitan Properties C.F.G.C Ltd v. Lannon 1 QB 577
• R.v. Justice of Queens Court (1908) 2 IR 282
• Tumaini v Republic 1972 E.A 441
• Rex. v. Huggins (1895) 1 QB 563
• Combone Justice, Ex parte Dearce (1955) 1 QB 41, 48 - 51 (1954) 2 All E.R. 850
• Rex. v. Hailsworth Licensing Justice Ex parte Bird 1953 1 WLR 1046 (1953) 2 ALL E.R 652
• R. v Sussex Justice Ex parte Mcarthy (1924) 1 KB 256 at P.259
• The King v. Robinson 1912 KBD 1008

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