Wakilii

Lumu v Makumbi Kamya & Anor (Election Petition Appeal No. 0109 of 2016)

Court of Appeal · [2017] UGCA 25 · 2017 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court decision striking out an election petition on preliminary objections
Decision
Appeal substantially dismissed; High Court order dismissing the petition set aside and substituted with an order striking out the petition.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a trial judge who takes over a matter following recusal may exercise discretion to hear it de novo under section 20(2) of the Judicature Act, whereupon prior preliminary rulings cease to have effect. The remaining four affidavits, being from partisan and single witnesses without corroboration, could not sustain the petition. The requirement to be a registered voter in the particular constituency for eligibility as an MP was misconceived, as Article 80 only requires registration as a voter. However, late service was not a proper ground to strike out where no prejudice was shown. The appeal substantially failed; the dismissal was substituted with an order striking out the petition.

Outcome

Appeal substantially dismissed; High Court order dismissing the petition set aside and substituted with an order striking out the petition.

Facts

The appellant and the 1st respondent contested the Member of Parliament election for Mityana South Constituency held on 18 February 2016. The 1st respondent was gazetted the winner with 10,661 votes against the appellant's 6,407 votes. The appellant petitioned the High Court seeking nullification, alleging the 1st respondent was not validly nominated because he was not a registered voter in Mityana South Constituency and had not resigned as Resident District Commissioner of Luwero, and that electoral offences and non-compliance had occurred. The petition was first heard by Okwanga, J who recused himself after three preliminary rulings, then re-allocated to Murangira, J who elected to hear the matter de novo. On the parties' concessions, 31 of the appellant's affidavits and all annextures to his affidavit were expunged for non-compliance with the Oaths Act and Illiterates' Protection Act, as were 10 of the 1st respondent's affidavits. The trial Judge struck out the petition for late service and held the remaining evidence was insufficient. The appellant appealed.

Issues

  1. Whether the trial Judge erred in deciding to hear the petition de novo after the recusal of the previous Judge.
  2. Whether the trial Judge erred in relying on previously expunged affidavits without affording the appellant a right to rejoin.
  3. Whether the trial Judge erred in holding that the remaining affidavits could not sustain the petition and in failing to determine whether the 1st respondent was validly nominated.
  4. Whether the trial Judge erred in relying on the 1st respondent's answer and affidavit evidence allegedly improperly before court.
  5. Whether the trial Judge erred in holding that the petition was served out of time.
  6. Whether the appellant is entitled to the reliefs sought.

Orders

  • The Appeal substantially fails and is hereby dismissed.
  • The Order of the High Court dismissing the Petition is set aside and substituted with an order striking it out.
  • The appellant shall pay costs to the respondent save for instruction and attendance fees in this Court and the court below.
  • The Appellant shall pay one-third of the 2nd Respondent's costs in the High Court but none are awarded to it for this Court.

Rules and key headnotes

Trial De Novo — Judicial Discretion Following Recusal — Judicature Act s.20(2)
Where a matter is re-allocated following the recusal of a judge before evidence has been heard, the new trial judge may, in the exercise of judicial discretion under section 20(2) of the Judicature Act and after hearing the parties, order the matter to be heard de novo; an appellate court will not interfere unless the discretion was exercised unjudicially.
Trial De Novo — Effect on Prior Preliminary Rulings
Once a trial judge orders a matter to be heard de novo, all preliminary rulings made by the previous judge cease to have legal effect and the new judge is not bound by them, including rulings expunging affidavits for late service.
Election Petitions — Corroboration of Partisan and Single Witnesses
In an election petition, the evidence of partisan witnesses such as agents and supporters of a candidate requires corroboration to be safely relied upon, and allegations of irregularities from single testifying witnesses restricted to a few polling stations cannot sustain the legal standard of proof.
Eligibility for Election as Member of Parliament — Constituency Voter Registration — Article 80 of the Constitution
The law does not require a candidate for the office of Member of Parliament to be a registered voter in the particular constituency where he or she stands; under Article 80 of the Constitution and section 4 of the Parliamentary Elections Act it is sufficient that the candidate is a registered voter.
Late Service of Petition — Directory Not Mandatory — Absence of Prejudice
Late service of an election petition, where the respondent suffers no prejudice and files a timely answer, is a mere irregularity that does not vitiate proceedings and is not a proper ground for striking out the petition; a trial judge is bound under stare decisis by appellate authority on this point.
Advocate as Witness — Professional Conduct — Regulation 9 Advocates (Professional Conduct) Regulations
An advocate who has deponed an affidavit in support of a party's case may not appear as counsel in the same matter, and conduct in breach of Regulation 9 of the Advocates (Professional Conduct) Regulations may justify denial of a costs award.

Legislation cited (10)

Cases cited (7)

  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Pandya vs R (1957) EA 336
  • Mbogo & another vs Shah, 1968 EA 93
  • Wilson Kyakurugaha v Uganda (Criminal Appeal No. 51 of 2014)
  • Kasirye Zzimula Fred v Bazigatirawo Francis Amooti & Anor (Election Petition Appeal No. 3 of 2016)
  • Nsubuga Silvest Ssekutu v Kalibbala Charles & Another (Election Petition Appeal No. 70 of 2016)
  • Muhindo Rehema v Winfred Kizza & Electoral Commission (Election Petition Appeal No. 29 of 2011)

Full judgment

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

Lumu Vs Makumbi Kamya & Anor (Election Petition Appeal No. 0109 of 2016) [2017] UGCA 25 (27 September 2017)
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.