Wakilii

Tayebwa v Kakuuna and Anor (Petition No. 5 of 2016)

High Court · [2016] UGHCEP 58 · 2016 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the election of the 1st Respondent as Member of Parliament for Bushenyi-Ishaka Municipality Constituency following the Parliamentary Elections held on 18 February 2016
Decision
Petition dismissed with costs; 1st Respondent's election as Member of Parliament for Bushenyi-Ishaka Municipality Constituency upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the Petitioner failed to prove to the required standard the allegations of electoral offences and illegal practices, including multiple allegations of bribery against the 1st Respondent and his alleged agents. Only one instance of possession of a panga by one Lukwago on polling day was established, but the Petitioner did not prove that this substantially affected the election outcome. The court applied heightened scrutiny to bribery allegations given their quasi-criminal nature. The petition was dismissed with costs.

Outcome

Petition dismissed with costs; 1st Respondent's election as Member of Parliament for Bushenyi-Ishaka Municipality Constituency upheld

Facts

The Petitioner and 1st Respondent contested the Parliamentary Elections for Bushenyi-Ishaka Municipality Constituency on 18 February 2016. The 1st Respondent was declared winner with 6,457 votes (40.53%), the Petitioner garnered 5,334 votes (33.48%), and a third candidate received 4,142 votes (26%). The Petitioner challenged the result alleging numerous incidents of bribery and illegal practices by the 1st Respondent and his alleged agent Hassan Basajabalaba, including distribution of money at various rallies and polling stations ranging from UGX 200,000 to UGX 2,500,000. He also alleged intimidation and violence at polling stations, and distribution of posters attacking his character. The Petitioner's evidence comprised his affidavit and 40 supporting affidavits; the 1st Respondent filed 55 supporting affidavits and the 2nd Respondent filed an answer supported by the Returning Officer's affidavit.

Issues

  1. Whether the 1st Respondent personally, or through his agents and with his knowledge and consent or approval committed any electoral offence or illegal practice in the election
  2. Whether there was any non-compliance with the provisions of the Parliamentary Elections Act and whether there was a failure to conduct the elections in accordance with the principles laid down in the Parliamentary Elections Act
  3. If issue 2 is answered in the affirmative, whether the non-compliance and failure affected the result of the election in a substantial manner
  4. What remedies, if any, are available

Orders

  • Petition dismissed.
  • Costs awarded to the Respondents.

Rules and key headnotes

Electoral Law — Election Petitions — Burden of Proof — Standard Required
The burden of proof in election petitions is on a balance of probabilities, but given the public importance of elections, the degree of proof required is relatively higher than in ordinary civil suits though lower than beyond reasonable doubt. The Petitioner must prove every allegation set out in the petition to the satisfaction of the court.
Electoral Law — Bribery Allegations — Standard of Scrutiny and Proof
Allegations of bribery in election petitions require thorough and high level scrutiny. Bribery is such a grave illegal practice that clear and unequivocal proof is required, and the standard of proof is slightly higher than the ordinary balance of probabilities applicable to ordinary civil cases. The court must be satisfied that the people allegedly bribed were registered voters at the material time, and the motive of the alleged giver is relevant.
Electoral Law — Agency — Proof Required
Every instance in which it is shown that either with the knowledge of the member or candidate himself a person acts in furthering the election for him or trying to get votes for him is evidence that the person so acting was authorised to act as his agent. It is not necessary that every agent of a candidate must have been formally appointed in writing. However, evidence must be adduced to prove that the person was acting with the knowledge, consent and approval of the candidate.
Civil Procedure — Election Petitions — Time Limits — Affidavits Filed Out of Time
Where affidavits in support of an answer to an election petition are filed out of time without leave of court, the court must adopt a relaxed approach towards procedural defects and look at whether the non-observance would lead to injustice. If it would not, and no substantial prejudice is shown to have been suffered by the other party, then the court may overlook the procedural breach. Courts must look at the intention of the legislature and balance expeditious resolution with resolution on merit.
Evidence — Affidavits — Severance of Defective Parts
In proper cases, court has discretion to sever parts of affidavits which are defective or superfluous instead of rejecting the whole affidavit. Where introductory paragraphs contain false averments but are not relevant statements of fact on the subject of the affidavits, those paragraphs may be struck off while the court relies on the contents of the rest of the affidavits which are statements of facts within the knowledge of the deponents.
Evidence — Witness Credibility — Cross Examination
Evidence of a deponent who fails to appear for cross examination when summoned is evidence of the weakest kind, and court should not rely on it. Where a witness swears affidavits supporting both sides of a case and makes contradictory statements, the credibility of such a witness is considerably compromised, and the safest course is to completely disregard such evidence.
Electoral Law — Non-Compliance — Effect on Election Results
Non-compliance with electoral laws per se is not enough to annul an election. Under Section 61(1) of the Parliamentary Elections Act, the non-compliance must be so significant as to substantially affect the results of the election. Where only one incident of illegality is proved but there is no evidence of its effect on the outcome or whether it was substantial, the petition will fail.

Legislation cited (20)

Cases cited (27)

  • Sitenda Sebalu v Sam K. Njuba (Election Appeal No. 26 of 2007)
  • Denis Kimuli Batemuka v Sarah Biribomwa Anywar & Another (Masaka Civil Suit No. 247 of 1986)
  • Yowasi Kaliguruka v Samuel Byarufu (Court of Appeal Civil Appeal No. 18 of 2008)
  • Col. (Rtd) Dr. Besigye Kizza v Museveni Yoweri Kaguta & Electoral Commission (Election Petition No. 1 of 2001)
  • Nandala v Lyding (1963) EA 706
  • Yona Kanyomozi v Motor Mart (U) Ltd (Civil Application No. 8 of 1998)
  • Ourum Okiror Sam v The Electoral Commission and Another (Mbale Election Petition No. 08 of 2011)
  • Muhindo Rehema v Winfred Kiiza & The Electoral Commission (Court of Appeal Election Petition Appeal No. 29 of 2011)
  • Egypt Air Corporation t/a Egypt Air Uganda v Suffish International Food Processors Ltd & Anor (Supreme Court Civil Application No. 14 of 2000)
  • Nabukeera Hussein Hanifa v Kibuule Ronald & Another (Jinja Election Petition No. 017 of 2011)
  • Kakooza John Baptist v Electoral Commission & Yiga Anthony (Election Petition Appeal No. 11 of 2007)
  • Paddy Kabagambe & Another v Bwambale Bihande Yokasi & Another (Fort Portal Election Petition No. 11 of 2006)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Mbagadi & Another v Dr. Nabwiso (Court of Appeal Election Petition Appeals No. 14 and 16 of 2011)
  • Odo Tayebwa v Basajabalaba Nasser & Another (Election Petition Appeal No. 003 of 2011)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Lulume (Supreme Court Election Petition Appeal No. 18 of 2007)
  • Mugema Peter v Mudiobole Abedi Nasser (Court of Appeal Election Petition Appeal No. 30 of 2011)
  • Hon. Gagawala Nelson Wambuzi v Returning Officer Kaliro District & 2 Others (Jinja Election Petition No. 008 of 2011)
  • John Cossy Odomel v The Electoral Commission & Another (Election Petition No. 06 of 2006)
  • Kamba Saleh Moses v Hon. Namuyangu Jennifer (Election Petition Appeal No. 027 of 2011)
  • Odo Tayebwa v Basajjabalaba Nasser and Another (Election Petition Appeal No. 013 of 2011)
  • Masiko Winfred Komuhangi v Babihuga (Election Petition Appeal No. 9 of 2002)
  • Alfred Tajar v Uganda (EACA Criminal Appeal No. 197 of 1969)
  • Achieng Sarah & Another v Ochwo Nyakecho Keziah (Court of Appeal Election Petition Appeal No. 39 of 2012)
  • Dr. Bayigga Michael Philip Lulume v Hon. Mukasa Anthony Harris & The Electoral Commission (Jinja Election Petition No. 6 of 2006)
  • J. K. Patel v Spear Motors Ltd (SCCA No. 4 of 1991)
  • Constantine Steamship Line Ltd v Imperial Smelting Corporation [1941] 1 All ER 165

Full judgment

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Tayebwa v Kakuuna and Anor (Petition No. 5 of 2016) [2016] UGHCEP 58 (26 August 2016)
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.