Wakilii

Madira v Etuka and Anor (Election Petition No. 4 of 2016)

High Court · [2016] UGHCEP 14 · 2016 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging validity of nomination and election of 1st respondent as Member of Parliament
Decision
Petition dismissed; 1st respondent confirmed as elected Member of Parliament for Upper Madi Constituency

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the 1st respondent was validly nominated on 2 December 2015 before the restraining order became effective. An interlocutory injunction meant to preserve status quo cannot operate retrospectively once the status quo has changed. The restraining order issued on 1 December 2015 was overtaken by events as the 1st respondent had already been declared NRM flag bearer on 28 October 2015 and nominated on 2 December 2015. Petition dismissed.

Outcome

Petition dismissed; 1st respondent confirmed as elected Member of Parliament for Upper Madi Constituency

Facts

The petitioner was nominated on 2 December 2015 as an independent candidate for Member of Parliament for Upper Madi constituency. The 1st respondent had been declared NRM flag bearer on 28 October 2015 following party primaries. On 1 December 2015, a court issued a restraining order forbidding NRM from declaring a flag bearer, arising from a suit by Martin Drito challenging the NRM primaries. On 2 December 2015, the 1st respondent was nominated as NRM candidate at 1:10pm. The returning officer later received the restraining order and purported to cancel the nomination. The 1st respondent contested the 18 February 2016 elections as NRM flag bearer and won with 7,236 votes against the petitioner's 1,046 votes. The Electoral Commission declared the 1st respondent the winner. The petitioner challenged the election on grounds that the 1st respondent was not validly nominated due to the restraining order.

Issues

  1. Whether the 1st respondent was validly nominated by the 2nd respondent to contest for the elective post of Member of Parliament for Upper Madi constituency for the period 2016-2021.
  2. What remedies are available to the parties.

Orders

  • The 1st Respondent is the directly elected Member of Parliament for Upper Madi Constituency having polled the highest votes and having been validly nominated.
  • Petition dismissed with costs to the Respondents.

Rules and key headnotes

Nomination — Restraining Orders — Retrospective Effect
An interlocutory injunction or restraining order meant to preserve the status quo cannot operate retrospectively once the status quo has changed. Where a party has already been nominated before a restraining order is issued, the order does not invalidate the nomination already completed.
Nomination — Party Sponsorship — Effect of Restraining Order
Where a restraining order seeks to prevent declaration of a party flag bearer but the declaration had already occurred before the order was issued, the order has no effect and cannot invalidate the subsequent nomination conducted in accordance with statutory requirements.
Nomination — De-nomination — Grounds
Once a candidate has been validly nominated, the returning officer or Electoral Commission can only de-nominate the candidate on grounds specified under Section 13 of the Parliamentary Elections Act or pursuant to a final court order, not on the basis of a restraining order overtaken by events.
Nomination — Validity — Statutory Compliance
A nomination is valid where the Electoral Commission has followed the provisions of Section 11 of the Parliamentary Elections Act, and no factors invalidating the nomination under Section 13 of the Act are established.

Legislation cited (14)

  • Parliamentary Elections Act 17 of 2005 s.60
  • Parliamentary Elections Act 17 of 2005 s.61
  • Parliamentary Elections Act 17 of 2005 s.61(1)(d)
  • Parliamentary Elections Act 17 of 2005 s.62
  • Parliamentary Elections Act 17 of 2005 s.63
  • Parliamentary Elections Act 17 of 2005 s.11
  • Parliamentary Elections Act 17 of 2005 s.11(2)
  • Parliamentary Elections Act 17 of 2005 s.13
  • Parliamentary Elections Act 17 of 2005 s.4
  • Judicature Act Cap 13
  • Parliamentary Elections Rules s.141-2
  • Constitution of Uganda Article 80
  • Evidence Act s.57
  • Electoral Commission Act

Cases cited (10)

  • Ssekikubo and Others v Attorney General (Constitutional Appeal No. 1 of 2015)
  • Samwiri Masa v Rose Achieng (1978 HCB 297)
  • Co-operative Bank in Liquidation v Mugwanya Sajjabi (HCMA 716 of 2005)
  • Afro-Ugandan Bros v Mpologoma Bros [1987] HCB 93
  • Esso Kenya Ltd v Mark Makwata Okiya (Civil Appeal 69 of 1991)
  • Nyamongo and Anor v Kenya Posts and Telecommunications Cooperation (1990-1994) EALR P.464
  • Kizza Besigye v Museveni (Election Petition No. 1 of 2006)
  • H.C.C.S No.24 of 2015
  • Misc. Application No.60 of 2015
  • Civil Application No.47 of 2016

Full judgment

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

Madira v Etuka and Anor (Election Petition No. 4 of 2016) [2016] UGHCEP 14 (17 June 2016)
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.