Sentamu v Nayabare and Another (Election Petition Appeal 14 of 2023)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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, sitting as the final appellate court in parliamentary election matters, dismissed the appeal against the dismissal of the petition challenging the first respondent's election as Woman MP for Gomba District. It held that submissions confined to grounds in the memorandum of appeal cannot raise new points (Rule 102(a)); a deponent's signature need not match the National Identity Card where the witness owns the document; and uncertified Declaration of Results Forms are inadmissible public documents absent certification under sections 73, 75 and 76 of the Evidence Act. Grounds four and six were struck out under Rule 66(2) as argumentative. The appellant's dilatory failure to serve a proper notice to produce defeated reliance on secondary evidence.

Outcome

Appeal dismissed; first respondent confirmed validly elected as Woman Member of Parliament for Gomba District

Facts

The appellant, Sentamu Betty, and the first respondent, Nayebare Sylvia, contested the Woman Member of Parliament seat for Gomba District in the election held on 14 January 2021. The second respondent, the Electoral Commission, declared the first respondent validly elected with 30,253 votes against the appellant's 22,657. The appellant petitioned the High Court at Mpigi challenging the election. After an earlier appeal led to a retrial before a different judge, the High Court again dismissed the petition. The appellant's case relied on affidavit evidence, some of which was challenged on jurat, illiteracy-certification, and signature grounds, and on uncertified Declaration of Results Forms obtained from a returning officer. The Electoral Commission stated an assessment of fees for certified copies had been made but never paid. The appellant did not pursue the certified copies, serve a proper notice to produce, or apply to court to compel production before relying on the uncertified forms.

Issues

1. Whether an appellant may argue, in submissions, a point of objection to an affidavit (non-understanding of contents under the Illiterates Protection Act) that was neither raised in the lower court nor set out in the grounds of appeal.
2. Whether discrepancies between a deponent's signature on an affidavit and the signature appearing on their National Identity Card render the affidavit evidence unreliable.
3. Whether uncertified Declaration of Results Forms are admissible in evidence in a parliamentary election petition, and the circumstances in which secondary evidence of such public documents may be received.
4. Whether a ground of appeal that is argumentative and not concise offends Rule 66(2) of the Court of Appeal Rules and should be struck out.

Orders

• The appeal is dismissed.
• The decision and orders of the High Court are upheld.
• The first respondent was validly elected as Woman Member of Parliament for Gomba District.
• Costs of the appeal and of the court below awarded to the respondents.

Rules and key headnotes

Legislation cited (17)

• Parliamentary Elections Act No. 17 of 2005 s.66(3)
• Parliamentary Elections Act No. 17 of 2005 s.61(3)
• Parliamentary Elections Act No. 17 of 2005 s.62
• Electoral Commission Act Cap. 140
• Constitution of the Republic of Uganda 1995
• Illiterates Protection Act Cap. 78 s.3
• Evidence Act Cap. 6 s.64(1)(a)
• Evidence Act Cap. 6 s.65
• Evidence Act Cap. 6 s.73
• Evidence Act Cap. 6 s.75
• Evidence Act Cap. 6 s.76
• Judicature Act s.6
• Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.30(1)
• Court of Appeal Rules r.66(2)
• Court of Appeal Rules r.102(a)
• Parliamentary Elections (Interim Provisions) Rules S.I. 141-2 r.5(3)
• Civil Procedure Rules O.10 r.14

Cases cited (18)

• Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
• Paul Mwiru v Igeme Nabeta & 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 All ER 458
• Sarah Bireete & Another v Bernadette Bigirwa and Electoral Commission (Election Petition Appeal No. 13 of 2002)
• HAM Enterprises Ltd & 2 Others v Diamond Trust Bank (U) Ltd & Another (Civil Appeal No. 13 of 2021)
• Kasaala Growers Co-operative Society v Kakooza Jonathan & Anor (Civil Appeal No. 19 of 2010)
• Makula International Ltd v His Eminence Cardinal Nsubuga & Anor [1982] UGSC 2
• Sitenda Sebalu v Sam K. Njuba & Another (Election Petition Appeal No. 26 of 2007)
• Tamale Julius Konde v Ssenkubuge Isaac & Another (Election Petition Appeal No. 75 of 2016)
• John Baptist Kakooza v Electoral Commission and Yiga Anthony (Election Petition Appeal No. 11 of 2007)
• Muhereza Bosco and Katureebe Boaz v Uganda (Criminal Appeal No. 66 of 2011)
• Tumwesigye Anthony v Arinaitwe Rauben & Anor (Consolidated Election Petition No. 31 of 2021)
• Sentamu Betty v Nayebare (Election Petition Appeal No. 11 of 2021)
• Ssenkubuge Isaac v Tamale Julius Konde (Election Petition No. 1 of 2019)
• Besigye Vs. Museveni & Anor (2006)
• Mbabozi Vs. Museveni & others (2016)

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