Mujungu Jennifer K v Tumwine Anne Mary and Another (Election Petition Appeal No. 77 of 2021)
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
- Whether the appellant should be granted leave to amend ground four of the memorandum of appeal.
- 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.
- Whether the 17 impugned affidavits complied with sections 2 and 3 of the Illiterates Protection Act.
- Whether the elections were conducted in non-compliance with electoral law and whether the results were affected in a substantial manner.
- Whether the first respondent committed the electoral offence of bribery.
- 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
Legislation cited (26)
- Parliamentary Elections Act s.61
- Parliamentary Elections Act s.61(1)(a)
- Parliamentary Elections Act s.61(1)(c)
- Parliamentary Elections Act s.61(3)
- Parliamentary Elections Act s.66(3)
- Parliamentary Elections Act s.68
- Parliamentary Elections Act s.15
- Parliamentary Elections Act s.11(1)(c)
- Parliamentary Elections Act s.1(1)
- Illiterates Protection Act s.2
- Illiterates Protection Act s.3
- Oaths Act s.1
- Oaths Act s.5
- Oaths Act s.6
- Interpretation Act s.43
- Constitution of the Republic of Uganda Article 61(1)
- Constitution of the Republic of Uganda Article 64(1)
- Constitution of the Republic of Uganda Article 126(2)(e)
- Constitution of the Republic of Uganda Article 139(1)
- Judicature Act s.6
- Judicature (Court of Appeal Rules) Directions Rule 30(1)
- Judicature (Court of Appeal Rules) Directions Rule 45
- Civil Procedure Rules Order 6 Rule 19
- Advocates (Remuneration and Taxation of Costs) Rules S.I. 267-4 Rule 41
- Parliamentary Elections (Interim Provisions) Rules S.I. 142-2 Rule 27
- Electoral Commission Act s.24
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
The original judgment as reported. Read the original PDF before relying on any passage.