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Mutembuli v Nagwomu and Another (Election Petition Appeal No. 43 of 2016)

High Court · [2017] UGHCEP 132 · 2017 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court decision dismissing election petition challenging 2016 parliamentary election results for Bunyole East Constituency
Decision
Appeal dismissed with costs; High Court decision upholding election results confirmed

Observed later treatment

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Holding

The Court of Appeal dismissed the appeal against a High Court ruling that had rejected an election petition challenging the 2016 parliamentary election for Bunyole East Constituency. The Court held that the trial Judge correctly expunged 85 affidavits filed as rejoinders because they introduced new evidence rather than rejoining specific matters raised in reply. The appellant failed to prove that the 1st respondent lacked the required academic qualifications, with evidence based largely on hearsay and name discrepancies inadequately substantiating the claim that the respondent's certificate belonged to another person. The Court upheld that the burden of proof remained on the petitioner throughout and was not discharged.

Outcome

Appeal dismissed with costs; High Court decision upholding election results confirmed

Facts

The appellant and 1st respondent contested the parliamentary seat for Bunyole East Constituency in the February 2016 general election. The 1st respondent was declared winner and gazetted on 16 March 2016. The appellant filed an election petition at the High Court Mbale challenging the election on three grounds: that the 1st respondent lacked the required minimum academic qualifications, alleging his O-level certificate belonged to a cousin; that the 1st respondent and his agents committed illegal practices including bribery and issuing false statements; and that the Electoral Commission failed to comply with electoral laws affecting results substantially. The High Court dismissed the petition on all grounds on 19 August 2016. The appellant then appealed to the Court of Appeal on twelve grounds, including challenges to the expunging of 85 affidavits filed as rejoinders, the trial Judge's findings on academic qualifications, evaluation of evidence on illegal practices, and non-compliance with electoral laws.

Issues

  1. Whether the learned trial Judge erred in expunging 85 affidavits filed by the appellant as rejoinders.
  2. Whether the learned trial Judge erred in holding that the 1st respondent possessed the required academic qualifications for nomination as Member of Parliament.
  3. Whether the learned trial Judge erred in holding that the burden of proving the 1st respondent's lack of academic qualifications lay on the appellant.
  4. Whether the learned trial Judge properly evaluated evidence regarding alleged illegal practices and electoral offences.
  5. Whether there was non-compliance with electoral laws that affected the election results in a substantial manner.
  6. Whether the learned trial Judge erred in awarding a certificate for two counsel.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondents.

Rules and key headnotes

Civil Procedure — Affidavits in Rejoinder — Scope and Permissible Content
Affidavits in rejoinder may only be sworn to clarify or rejoin specific new issues raised by the respondent in affidavits in reply and cannot introduce fresh issues not alluded to in the petition or reply, as doing so would constitute introducing a fresh petition contrary to procedural rules requiring expedition in election matters.
Electoral Law — Election Petitions — Burden of Proof
The burden of proof in election petitions lies upon the petitioner throughout the trial and does not shift; grounds for setting aside an election must be proved to the satisfaction of the court on a balance of probabilities by the person who alleges them.
Evidence — Hearsay Evidence — Treatment in Affidavits
Where an affidavit contains hearsay evidence in some parts, the proper course is to sever the offending parts while accepting the rest, rejecting the hearsay portions as not satisfactorily proved rather than striking out the entire affidavit.
Electoral Law — Academic Qualifications — Proof Requirements
A person holding an Advanced level certificate or higher qualifications obtained in Uganda has no obligation to produce an ordinary level certificate to establish minimum academic qualifications for nomination as Member of Parliament; allegations that academic qualifications belong to another person require proof beyond mere discrepancies in the order of names on certificates.
Civil Procedure — Striking Out Grounds of Appeal — Compliance with Rules
A ground of appeal that fails to set forth concisely and under distinct heads, without argument or narrative, the specific points alleged to have been wrongfully decided offends Rule 86(1) of the Court of Appeal Rules and is liable to be struck out for being too general.
Administrative Law — Birth and Death Registration — Name Changes
Section 12 of the Birth and Death Registration Act, which provides for amendment of the Register of births and deaths, applies only to persons whose names were registered under it; a register cannot be amended in respect of a name that does not appear on it, and the section does not govern situations where a person adds a name without abandoning existing names.

Legislation cited (10)

Cases cited (6)

  • Abdul Balingira Nakendo v Patrick Mwondha (Supreme Court Election Petition No. 9 of 2007)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Fr. Narcensio Begumisa and Others v Eric Tibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Col. (RTD) Dr. Kizza Besigye v Yoweri Kaguta Museveni and Another (Election Petition No. 1 of 2001)
  • Gurjant Singh vs Krishan Chander & ORS (Rajasthan High Court, 27 March 2000)
  • Kakooza John Baptist v Electoral Commission and Igga Anthony (Supreme Court Election Petition Appeal No. 11 of 2011)

Full judgment

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

Mutembuli v Nagwomu and Another (Election Petition Appeal No. 43 of 2016) [2017] UGHCEP 132 (27 July 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.