Wakilii

Mujungu Jennifer K v Tumwine Anne Mary and Another (Election Petition Appeal No. 77 of 2021)

Court of Appeal · [2022] UGCA 196 · 2022 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court dismissal of a parliamentary election petition
Decision
Appeal fails on grounds 1-4; the first respondent's election as Woman MP for Ntoroko District confirmed. Ground 5 (certificate of three counsel) upheld.

Observed later treatment

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Holding

The Court of Appeal dismissed grounds 1–4 of the election petition appeal, upholding the first respondent's election as Woman MP for Ntoroko District. It held that eligibility and nomination complaints are pre-election matters that must be raised before polling, so a petitioner is estopped from raising them afterwards. Failure to state a translator's address rendered affidavits merely defective, not fatal, and they remained valid. Allegations of a military takeover, ballot stuffing and bribery were not proved to the required standard on a balance of probabilities. However, ground 5 was upheld: the trial Judge wrongly certified three counsel without giving reasons. Each party was ordered to bear its own costs.

Outcome

Appeal fails on grounds 1-4; the first respondent's election as Woman MP for Ntoroko District confirmed. Ground 5 (certificate of three counsel) upheld.

Facts

The appellant, the first respondent and a third candidate contested the election for Woman Representative to Parliament for Ntoroko District held on 14 January 2021. Both the appellant and first respondent had earlier sought the NRM flag bearer position, which the first respondent won, prompting the appellant to stand as an Independent. The first respondent polled 9,787 votes and the appellant 9,679, a margin of 108 votes. The appellant challenged the result by petition at the High Court at Fort Portal, alleging that the first respondent was unlawfully nominated (with anomalies on her nomination paper), that the election was conducted in non-compliance with electoral law (alleging a military takeover, ballot stuffing and multiple voting at Kacwamba Mosque polling station), and that the first respondent committed election offences including bribery through distribution of food, clothes, tarpaulins, plates, a monetary contribution to a church and donation of bulls. The High Court dismissed the petition, prompting this appeal.

Issues

  1. Whether the appellant should be granted leave to amend ground four of the memorandum of appeal.
  2. Whether the first respondent was validly nominated despite alleged anomalies on her nomination paper, and whether such pre-election complaints may be raised after elections.
  3. Whether the 17 impugned affidavits complied with sections 2 and 3 of the Illiterates Protection Act.
  4. Whether the elections were conducted in non-compliance with electoral law and whether the results were affected in a substantial manner.
  5. Whether the first respondent committed the electoral offence of bribery.
  6. Whether the trial Judge properly exercised his discretion in awarding a certificate for three counsel.

Orders

  • The election for Woman Representative to Parliament for Ntoroko District held on 14 January 2021 is confirmed.
  • Tumwine Anne is the rightly elected Member of Parliament.
  • Grounds 1, 2, 3 and 4 are dismissed.
  • Ground 5 is upheld.
  • Each party shall bear their costs here and at the trial court.

Rules and key headnotes

Electoral Law — Nomination and Eligibility — Pre-election Complaints — Estoppel After Polling
Complaints concerning the eligibility or nomination of a candidate are pre-election matters that must be resolved before elections through the Electoral Commission; a party who fails to raise them before polling is estopped from raising them in a post-election petition.
Evidence — Affidavits — Illiterates Protection Act — Omission of Translator's Address
Failure to state a translator's true and full address on an affidavit sworn for an illiterate deponent renders the affidavit defective rather than fatally non-compliant where the translator can be traced through the drafting law firm whose name and address appear on the document.
Evidence — Election Petitions — Assessment of Partisan Affidavit Evidence
In election petitions where evidence is by affidavit without cross-examination, a court must caution itself as to partisan witnesses and test the veracity of the evidence against independent and neutral sources, and a signed declaration of results form endorsed by candidates' agents is conclusive evidence of a free and fair election unless controverted.
Electoral Law — Setting Aside Election — Substantial Effect on Result
Under section 61 of the Parliamentary Elections Act, an election is set aside only where non-compliance with the Act is proved to have affected the result in a substantial manner, and the petitioner bears the burden of proof on a balance of probabilities.
Electoral Law — Bribery — Proof of Registered Voter and Ingredients of the Offence
To prove the electoral offence of bribery under section 68 of the Parliamentary Elections Act it must be shown that a gift was given to a registered voter by a candidate or agent with intent to induce a vote; conclusive proof of a registered voter is the National Voter Register, and a national ID or voter location slip is insufficient.
Civil Procedure — Costs — Certificate for More Than One Counsel
A certificate of costs for more than one counsel must be supported by sound reasons such as the complexity or difficulty of the case; a trial court that certifies additional counsel without giving reasons fails to exercise its discretion judiciously.
Civil Procedure — Amendment of Pleadings — Memorandum of Appeal
A memorandum of appeal may be amended where the amendment does not substitute a distinct cause of action or prejudice the opposite party in a manner uncompensable by costs, consistent with the principle that pleadings are amended to determine the real questions in controversy.

Legislation cited (26)

Cases cited (31)

  • Paul Mwiru v Igeme Nabeta and Others (Election Petition No. 6 of 2011)
  • Mukasa Harris v Dr. Lulume Bayiga
  • Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2006)
  • Bater v Bater (1950) 2 ALLER 458
  • Sarah Bireete and Another v Bernadette Bigirwa and Electoral Commission (Election Petition Appeal No. 13 of 2002)
  • Uhuru Highway Ltd v Central Bank of Kenya (200)1EA 314(CoA K)
  • Mulowooza and Brothers v N. Shah and Co. Ltd (Civil Appeal No. 26 of 2010)
  • Eastern Bakery v Castelino (1958) E.A 461
  • Kananura John Bosco v The Independent Electoral Commission and Another (Election Petition Appeal No. 100 of 2016)
  • Makula International Ltd v Cardinal Emmanuel Nsubuga (1982) [HCB]1
  • Kasirye Zziwula v Bazigatirwawo Kibuuka Francis Amooti and Another (Election Petition Appeal No. 1 of 2018)
  • Nandagire Christine Ndiwalana v Katushabe Ruth (Election Petition Appeal No. 5 of 2021)
  • Ongole Michael v Electoral Commission and Another (Election Petition Appeal No. 8 of 2006)
  • Akol Ellen Odeke v Okodel Umar (Election Petition Appeal No. 6 of 2020)
  • Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 16 of 2016)
  • Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
  • Abed Nortey v African Institute of Journalism and communication & ors
  • Nakate Segula Lilian Segulia v The Electoral Commission (Election Petition Appeal No. 17 and 21 of 2016)
  • Nanjibhai Prabhudas & Co. Ltd v Standard Bank Ltd (1968) EA 670
  • Kasala Growers Cooperative Society v Kakooza Jonathan and Kalemera Edson (Civil Appeal No. 19 of 2010)
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Ngoma Ngime v Electoral Commission and Winnie Byanyima (Election Petition Appeal No. 11 of 2002)
  • Mbaghadi Fredrick Nkayi and Electoral Commission v Dr. Nabwiso Frank Wilberforce (Election Petition Appeal No. 14 and 16 of 2011)
  • Isodo Apolot Stella v Amongia Jacqueline (Election Petition Appeal No. 60 of 2016)
  • Lanyero Sarah Ochieng v Lanyero Molly (Election Petition Appeal No. 32 of 2011)
  • Kasirye Zziwula Fred v Bazigatirawa Kibuuka (Election Petition Appeal No. 1 of 2018)
  • Gadaffi v Sekabira and Another (Election Petition Appeal No. 56 of 2021)
  • Gole Nicholas Davis v Loi Kageni Kiryapawo (Election Petition Appeal No. 19 of 2007)
  • Mutembuli Yusuf v Nagwomu Moses Musumba and the Electoral Commission (Election Petition Appeal No. 43 of 2016)
  • Akuguzibwe Lawrence v Muhumuza David and Others (Election Petition Appeal No. 22 of 2016)
  • Mwogezaddembe v Gagawala Wambuzi (Election Petition No. 2 of 2001)

Full judgment

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Mujungu Jennifer K v Tumwine Anne Mary and Another (Election Petition Appeal No. 77 of 2021) [2022] UGCA 196 (28 July 2022)
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.