Kanyike v Electoral Commission & 2 Ors (Civil Application No. 13 of 2006)

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

On an application to adduce additional evidence in an election petition appeal, the Court of Appeal held that fraud is itself an exceptional circumstance justifying leave to admit fresh evidence on appeal, notwithstanding the general rule against fresh evidence. The Court further held that, distinct from new evidence, it may take in evidence at the appellate stage that elucidates evidence already on or emerging from the record. The applicant's proposed evidence (the third respondent's school entry records and nomination papers) emerged from the petition record and elucidated it. There is no statutory time limit on furnishing additional evidence with leave of court. Leave was granted, with costs to the applicant.

Outcome

Application granted; leave given to adduce additional evidence by affidavit on appeal

Facts

Judgment had been entered against the applicant in Election Petition No. 1 of 2006, in which he challenged the nomination, election and declaration of the third respondent as Member of Parliament for Buyikwe West Constituency in the February 2006 parliamentary elections. The applicant alleged the third respondent lacked the requisite academic qualifications and had told the trial court a lie that his 'O' level certificate contained spelling mistakes in his names, which the court believed. In this application, the applicant sought leave to adduce additional evidence on appeal, namely the third respondent's records of entry into Senior 1 at St. Mary's College Kisubi and his nomination papers for the elections. The applicant contended this evidence would prove the favourable judgment was fraudulently obtained and a nullity, and that the records emerged from the petition record but were never exhibited. He stated he obtained the information only after judgment despite extensive search.

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 fraud and the elucidation of evidence already on record justified the admission of additional evidence at the appellate stage.
3. Whether the applicant was time barred from furnishing additional evidence.

Orders

• Leave granted to the applicant/appellant to adduce additional evidence on appeal or to call evidence elucidating on evidence already on or emerging from the record.
• The additional evidence to be adduced by affidavit with the third respondent's records of entry to S.1 at St. Mary's College Kisubi and his nomination papers for the February 2006 elections annexed.
• Costs of the application granted to the applicant/appellant.

Rules and key headnotes

Legislation cited (8)

• 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.44
• Parliamentary Elections Act

Cases cited (9)

• Karmali Tarmohamed and Another v T.H. Lakhani & Co [1958] EA 567
• Rev. Fr. Narsensio Begumisa and Others v Erick 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)
• Namisango Vs Galiwango and another 1986 HCB.37
• Ladd v Marshall [1954] 1 WLR 1489
• Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 11
• R v Yakobo Busigo s/o Mayogo (1945) 12 EACA 60
• The King v Robinson (1917) 2 KB 1098

Cases citing this judgment (6)

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.

• Kenya Commercial Bank (Uganda) Ltd v Olive Zaitun Kigongo and Another (Miscellaneous Appeal No. 7 of 2026)
• Mujungu v Tumwine and Another (Election Application No. 39 of 2022)
• The Registered Trustees of the church of Uganda of Kitgum Doicese v Oryema & 18 Ors (MISCELLANEOUS CIVIL APPLICATION No. 0136 OF 2018)
• Idrifua v Uganda (Criminal Application No. 0036 of 2016)
• Mulindwa v Lugudde (Election Petition Appeal Miscellaneous Application 3 of 2016)
• Kisawuzi v Walusimbi (Miscellaneous Application No. 276 of 2012) followed

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