Wakilii

Kasta Hussein Bukenya v Bukenya Balibaseka Gilbert and Another (Election Petition No.029 of 2011)

High Court · [2011] UGHC 224 · 2011 Petition Partly Allowed — Election Set Aside AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the return of the first respondent as Member of Parliament for Busiro North Constituency
Decision
Election set aside; seat declared vacant; by-election ordered.

Observed later treatment

Cited — treatment unverified cited in 3 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

No adverse treatment recorded Cited 3 times with no adverse treatment recorded; not yet tested on the merits. Citations fading — 3 citing cases on record, 3 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court found the election petition competent despite non-service of notice of presentation. The misspelling of the petitioner's surname on the ballot paper ("Katya" instead of "Kasta") did not constitute failure to conduct elections in accordance with law, as voters could identify the petitioner by photograph and symbol. Three incidents of bribery committed by the first respondent were proved to the court's satisfaction: shs.150,000/= distributed at Ngondwe, shs.150,000/= given at Chance Primary School (Kitayita), and shs.500,000/= donated at Kirundi zone. The court set aside the election under section 61(1)(c) of the Parliamentary Elections Act.

Outcome

Election set aside; seat declared vacant; by-election ordered.

Facts

The petitioner and first respondent contested the parliamentary seat for Busiro North Constituency in elections held on 18 February 2011. The first respondent won with 17,382 votes against the petitioner's 4,953 votes. The petitioner filed an election petition alleging: (i) his surname was misspelt on the ballot paper as "Katya" instead of "Kasta"; (ii) his polling agents were turned away from polling stations; (iii) the first respondent committed bribery at multiple locations during the campaign period; and (iv) various electoral offences. The petitioner sought a declaration that the election was not free and fair, an order setting aside the election result, and an order for a by-election. The first respondent and Electoral Commission denied all allegations.

Issues

  1. Whether the petition is competent.
  2. Whether there was failure to conduct the elections in accordance with the law and principles set out in the electoral law.
  3. Whether the failure to conduct the election in accordance with the law and principles affected the result in a substantial manner.
  4. Whether the first respondent personally or his agents, with his knowledge, consent or approval, committed any illegal practices or electoral offences.

Orders

  • Election of the first respondent as Member of Parliament for Busiro North Constituency set aside under section 61(1)(c) of the Parliamentary Elections Act.
  • Parliamentary seat for Busiro North Constituency declared vacant.
  • By-election to be conducted in accordance with the law.
  • Petitioner to recover costs from the first respondent.
  • Each party to bear own costs as between petitioner and second respondent.

Rules and key headnotes

Election Petitions — Service of Notice of Presentation — Effect of Non-Service
Non-service of the notice of presentation of an election petition to the respondent is a mere irregularity which does not vitiate the proceedings, particularly where the respondent has filed an answer to the petition and has not demonstrated any prejudice or injustice suffered as a result of the omission.
Ballot Paper Design — Misspelling of Candidate Name — Effect on Election
A misspelling of a candidate's surname on the ballot paper does not constitute failure to conduct elections in accordance with law where voters can identify the candidate by other means including photograph and symbol, and where the ballot paper design provides multiple identification mechanisms to accommodate voters of varying literacy levels.
Election Petitions — Standard of Proof — Degree of Probability Required
The burden of proof in an election petition lies upon the petitioner who must prove allegations to the satisfaction of the court on the balance of probabilities, but the degree of probability required is higher than that in ordinary civil suits because the subject matter is of critical importance to the welfare of the people and their democratic governance.
Election Petitions — Pleadings — Evidence Beyond Pleadings
Where an election petition contains evidence relating to incidents not specifically pleaded, but the opposite party has fair notice of the case to answer and adduces evidence accordingly without suffering injustice, the court will not allow irregularity in pleadings to frustrate determination of the case, and may admit such evidence even without formal amendment of the petition.
Bribery — Essential Ingredients — Proof Required
To prove bribery in an election petition, a petitioner must establish: (i) that a gift was given to a voter; (ii) the gift was given by a candidate or by a candidate's agent with the candidate's knowledge, consent or approval; and (iii) the gift was given with the intention of inducing the person to vote for the giver or to refrain from voting for a candidate. One proved incident of bribery is sufficient to set aside an election.
Bribery — Statutory Exceptions — Money Given at Candidate's Home
Money given by a candidate to visitors at the candidate's own home for transport or refreshments may qualify for the statutory exception under section 68(3)(a) of the Parliamentary Elections Act and does not constitute bribery where the amount is modest and the meeting is not a public rally.
Election Petitions — Credibility of Witnesses — Propensity to Perjury
In election petitions, courts must exercise particular caution in evaluating witness testimony because witnesses are often ardent supporters of a party who possess a high propensity to propel success for their candidate. No court will set aside an election unless it has substantial and cogent evidence compelling it to do so, and will generally not act upon the evidence of a single witness unless it is highly compelling.

Legislation cited (12)

Cases cited (11)

  • Col. Rtd. Dr. Besigye Kizza v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2001)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Phillip Lulume (SC Election Petition No. 18 of 2007)
  • Sitenda Sebalu v Sam K. Njuba and Electoral Commission (SC Election Petition Appeal No. 26 of 2007)
  • Namboze Betty Bakireke v Bakaluba Mukasa and Electoral Commission (Election Petition No. 14 of 2006)
  • Bakaluba Peter Mukasa v Namboze Betty Bakireke (Election Petition Appeal No. 04 of 2009)
  • Interfreight (U) Ltd. Vs. E.A Development Bank (1990 - 1994) E.A.117
  • Esso Petroleum Company Ltd. Vs. South Port Corporation (1956) A.C. 218
  • Uganda Breweries Ltd. Vs. Uganda Railways Corporation (2002) 2 EA 634
  • Mbayo Jacob Robert v Electoral Commission and Tafonsya Sinani (Election Petition Appeal No. 07 of 2006)
  • Abdul Balinqira Nakendo v Patrick Mwondha (SC Election Petition No. 09 of 2007)
  • Kakooza John Baptist v Electoral Commission and Yiiga Anthony (Election Petition No. 11 of 2007)

Cases citing this judgment (3)

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.

Full judgment

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

Kasta Hussein Bukenya v Bukenya Balibaseka Gilbert and Another (Election Petition No.029 of 2011) [2011] UGHC 224 (5 October 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.