Serunjogi Charles Musoke v Amooti Nyakana Godfrey and Another (Election Petition No. 29 of 2006) (Election Petition No. 29 of 2006)

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 High Court dismissed the election petition on the ground that the petitioner failed to properly serve the first respondent with notice of presentation of the petition and the petition itself within seven days of filing, rendering the petition a nullity. The court held that no waiver could validate this nullity, following Court of Appeal precedent. The court noted that had the petition been valid, it would have found that the Electoral Commission unlawfully disenfranchised at least 800 voters through improper deletion from the voters register without affording them a hearing, and failed to declare results at one polling station with 476 registered voters due to over-voting, both of which affected the result substantially given the winning margin of 444 votes.

Outcome

Petition dismissed as a nullity by reason of non-service of notice of presentation and copy of petition on the first respondent within the time prescribed by law.

Facts

The petitioner Serunjogi Charles Musoke challenged the result of the Local Government LC III Chairperson election for Kampala Central Division held on 10 March 2006. The first respondent Amooti Nyakana Godfrey was declared winner with 15,925 votes against the petitioner's 15,479 votes, a margin of 444 votes. The petitioner alleged gross irregularities including violence, voter intimidation, disenfranchisement of voters through unlawful deletion of names from the voters register, failure to declare results at one polling station, and illegal practices by the first respondent. The election date had been changed from 6 March to 10 March 2006 due to breakdown of printing machines. The petition was filed on 26 May 2006. The first respondent raised a preliminary objection that he had not been properly served with notice of presentation of the petition and the petition itself within the mandatory seven-day period, and filed his reply under protest on 17 July 2006.

Issues

1. Whether the petition should be dismissed against the first Respondent by reason of failure to serve notice of presentation of the petition and the petition itself upon the first Respondent within the prescribed time.
2. Whether there was failure to conduct the election in accordance with the electoral laws.
3. Whether such failure affected the result of the election in a substantial manner.
4. Whether an illegal practice or electoral offence under the Local Governments Act or any other relevant law was committed in connection with the election by the first Respondent personally or with his knowledge, consent and approval.
5. What are the remedies available to the parties.

Orders

• Petition dismissed.
• First Respondent awarded costs against the Petitioner.
• Second Respondent denied costs of the dismissed petition.
• Copy of judgment to be passed to the Director of Public Prosecutions as a report that criminal offences may have been committed by Samuel Kisuule and Godfrey Kawalya during the election.

Rules and key headnotes

Legislation cited (13)

• Local Governments Act Cap. 243 s.139
• Local Governments Act Cap. 243 s.140
• Local Governments Act Cap. 243 s.141
• Local Governments Act Cap. 243 s.142
• Local Governments Act Cap. 243 s.172
• Parliament Elections Act 2005 s.61(3)
• Electoral Commission Act Cap. 140 s.25
• Parliamentary Elections (Election Petition) Rules 2006 r.6(3)
• Parliamentary Elections (Election Petition) Rules 2006 r.6(4)
• Parliamentary Elections (Election Petition) Rules 2006 r.6(5)
• Constitution of Uganda 1995 art.28(1)
• Constitution of Uganda 1995 art.59
• Constitution of Uganda 1995 art.126(2)(e)

Cases cited (12)

• Col. (Rtd) Dr. Kiiza Besigye v Yoweri Kaguta Museveni and Another (Supreme Court Election Petition No. 1 of 2001)
• Winnie Matsiko v Babihuga Winnie (Court of Appeal Election Petition Appeal No. 9 of 2002)
• Attorney General v David Tinyefunza (Supreme Court Civil Appeal No. 1 of 1997)
• WOOD VS. WOAD (1874) L.R. EX. 190
• BYRNE VS. KINEMATOGRAPH RENTERS SOCIETY LTD (1958) 1 WLR 762
• Kamurasi Charles v Accord Properties Limited and Another (Supreme Court Civil Appeal No. 3 of 1996)
• George Semboze v Uganda Red Cross Society (High Court Civil Suit No. 49 of 1997)
• MATOVU & 2 OTHERS VS. SSEVIRI & ANOTHER [1979] HCB 174
• Besweri Lubuye Kibuuka v Electoral Commission and Another (Election Petition Appeal No. 2 of 1999)
• Oulton Vs. Radcliff (1873-74) 9 LRCP 189
• Mathina Bwambale v The Electoral Commission and Crispus Kiyonga (Election Petition No. 7 of 2006)
• Dr. Bayigga Michael Philip Lulume v Hon. Mukasa Anthony Harris (Election Petition No. 6 of 2006)

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.

• Nakwedde Harriet v Muwonge Andrew & Another (Election Petition Appeal 1 of 2022)

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