Mbaju Jackson v Thembo Gideon Mujungu and Electoral Commission (Election Petition Appeal 46 of 2021)

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

The Court of Appeal allowed the appeal in part, holding that under section 61(1)(a) of the Parliamentary Elections Act electoral malpractice need not be attributed to the successful candidate; it suffices that the election was not conducted in accordance with the principles of the law and that the non-compliance affected the result substantially. Proven ballot stuffing, dead and absent voters, and result discrepancies at four polling stations, against a winning margin of 79 votes, put the outcome in doubt. The court struck out affidavits obtained by approaching the opposing party's witnesses as violating fair-trial principles, dismissed the cross-appeal, nullified the first respondent's election, and ordered a by-election.

Outcome

Election of the first respondent nullified; by-election ordered for Busongora County South Constituency

Facts

The appellant, the first respondent and eight others contested the parliamentary seat for Busongora County South, Kasese district, in the January 2021 general elections. The Electoral Commission declared the first respondent the winner with 7,601 votes against the appellant's 7,522, a margin of 79 votes. The appellant petitioned the High Court alleging irregularities at four polling stations: Katunguru Primary School (100% turnout including dead and imprisoned voters and alleged ballot stuffing), Katunguru Market (excess unaccounted ballots and pre-ticking), Busunga Primary School (recorded voters exceeding ballots cast by about 100), and Quran Primary School (the appellant credited with one vote on the tally sheet versus five on the declaration form). The High Court dismissed the petition, finding the irregularities were not attributable to the first respondent and did not substantially affect the result. The appellant appealed and the first respondent cross-appealed on the competence of affidavits commissioned by an advocate in the appellant's firm.

Issues

1. Whether affidavits in support of the respondents' answers should be expunged for not having been sworn before a commissioner for oaths.
2. Whether affidavits commissioned by an advocate who is a partner in the firm representing a party, and allegedly not gazetted, are incompetent and inadmissible.
3. Whether the proved electoral irregularities at the impugned polling stations affected the result of the election in a substantial manner.
4. Whether results from polling stations where irregularities were proved should be excluded from the final tally, even where the irregularities were not attributable to the declared winner.

Orders

• Appeal allowed in part with costs here and below.
• Cross appeal dismissed with costs.
• Election of Thembo Gideon Mujungu as Member of Parliament for Busongora County South, Kasese district nullified and set aside.
• Electoral Commission (respondent no.2) ordered to hold a by-election for Busongora County South Constituency in accordance with the law.
• Ground 7 allowed and affidavits sworn by the petitioner's witnesses and annexed to the respondents' answer struck out.

Rules and key headnotes

Legislation cited (16)

• Parliamentary Elections Act s.61(1)
• Parliamentary Elections Act s.61(1)(a)
• Commissioner for Oaths (Advocates) Act s.1(3)
• Commissioner for Oaths (Advocates) Act s.4(1)
• Commissioner for Oaths (Advocates) Act s.5
• Commissioner for Oaths (Advocates) Act s.6
• Civil Procedure Rules Order 6 rule 1
• Advocates (Professional Conduct) Regulations SI 267-2 rule 19
• Judicature (Court of Appeal Rules) Directions SI 13-10 rule 30
• Judicature (Court of Appeal Rules) Directions SI 13-10 rule 91(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 rule 92
• Constitution of the Republic of Uganda article 1(1)
• Constitution of the Republic of Uganda article 1(4)
• Constitution of the Republic of Uganda article 71(1)(c)
• Constitution of the Republic of Uganda article 72(4)
• Presidential Elections Act 2005 s.59(6)(a)

Cases cited (28)

• Muzanira Bamukwatsa v Masiko and Anor [2018] UGCA 236
• Nabeta & Anor v Mwiru [2013] UGCA 2
• Nakecho Annet v Ekanya Geoffrey (Election Petition Appeal Nos. 28 & 30 of 2016)
• Toolit Simon Akecha v Oulanyah Jacobs L'okori & Anor [2012] UGCA 5
• Toolit Simon Akecha v Oulanyah Jacobs L'okori & Anor (Election Petition No. 1 of 2011)
• Tayebwa v Kakuunarinda & Anor [2017] UGCA 63
• Ngoma Ngime v Electoral Commission & Winnie Byanyima (Election Petition Appeal No. 11 of 2002)
• Edetait v Ismat [2013] UGCA 3
• Kezaala v Batambuze and Another [2017] UGCA 221
• Interfreight Forwarders (U) Limited v East African Development Bank [1993] UGSC 16
• Morgan and others v Simpson and Anor [1973] 3 All ER 722
• Tubo Christine Nakwang v Akello Rose Lilly [2017] UGCA 223
• Nabukeera v Kusasira [2017] UGCA 52
• Kakooza John Baptist v Electoral Commission & Anor [2008] UGSC 8
• Muyanja Lutaaya v Lubogo & Anor [2017] UGCA 64
• Kassaja v Ngobi and Another [2018] UGCA 237
• Apollo Kantinti v Sitenda Sebalu & Others (Election Appeals Nos. 31 & 33 of 2016)
• Kamba Saleh Moses v Namuyangu Jennifer [2012] UGCA 8
• Amama Mbabazi v Museveni & Ors [2016] UGSC 3
• Mpanga v Ssenkubuge and Another [2021] UGHCCD 112
• Suubi Kinyamatama v Senton [2021] UGCA 240
• Attorney General and Anor v James Mark Kamoga and Anor [2008] UGSC 4
• Kintu Alex Brandon v Electoral Commission & Anor (Election Petition Appeal No. 64 of 2016)
• Qurum Okiror Sam v Electoral Commission and Ochwa David (Election Petition No. 8 of 2008)
• Besigye Kiiza v Museveni Yoweri Kaguta and Another (Election Petition No. 1 of 2001)
• Banco Arabe Espanol v Bank of Uganda [1999] UGSC 1
• Rwakashaija Azarious and others v Uganda Revenue Authority [2010] UGSC 8
• Omunyokol v Attorney General [2012] UGSC 4

Cases citing this judgment (1)

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.

• Attan Moses Okia v Ariko Herbert Edmund Okworo & Others (Election Petition Appeal 2 of 2023)

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