Wanda v Electoral Commission and Another (Election Petition Appeal Number 81 of 2016)

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 extended time for filing the record of appeal, treating the delay as a mistake of counsel amounting to sufficient cause not to be visited on the appellant. On the merits, however, it dismissed the appeal. The trial Judge had properly refused documents introduced during re-examination in breach of Rule 15 of SI 141-2, correctly declined to entertain allegations of illegal use of Government resources introduced through a rejoinder rather than pleaded within time, and rightly required proof that alleged bribe recipients were registered voters. The second respondent was confirmed as the validly elected Member of Parliament for Bungokho South, with costs to the appellant in both courts.

Outcome

Appeal dismissed; second respondent confirmed as validly elected Member of Parliament for Bungokho South, though the application to extend time for filing the record was granted

Facts

The appellant and the second respondent, along with four other candidates, contested the February 2016 election for Member of Parliament for Bungokho South constituency, Mbale District. The Electoral Commission declared the second respondent the winner with 24,046 votes against the appellant's 18,083 votes. The appellant petitioned the High Court alleging non-compliance with electoral law, bribery, violence and intimidation, and illegal use of Government resources, seeking annulment and a fresh election. The High Court dismissed the petition. The appellant filed a notice and memorandum of appeal but did not lodge the record of appeal within 30 days as required. Although the record was ready by 16 December 2016, it was only filed on 8 June 2017 after new counsel were engaged, the appellant claiming his former advocate had advised him to withdraw. Applications to extend time and to strike out the appeal were consolidated with the substantive appeal.

Issues

1. Whether this was a proper case for grant of leave to extend time for filing the record of appeal or one meriting striking out of the appeal.
2. Whether the trial Judge erred in refusing to admit the declaration of results forms supplied by the Electoral Commission.
3. Whether the trial Judge erred in refusing to admit the electronic voters register.
4. Whether the trial Judge erred in ruling that the appellant had not pleaded illegal use of Government resources.
5. Whether the trial Judge erred in failing to properly evaluate the evidence on record.

Orders

• Order extending time within which to file the record of appeal granted and late filing validated.
• Appeal dismissed.
• Trial Judge's decision upheld.
• The second respondent confirmed as validly and lawfully elected Member of Parliament for Bungokho South constituency.
• Costs in the Court of Appeal and in the High Court to be borne by the appellant.

Rules and key headnotes

Legislation cited (12)

• Parliamentary Elections (Interim Provisions) (Election Petition) Rules SI 141-2 r.31
• Parliamentary Elections (Interim Provisions) (Election Petition) Rules SI 141-2 r.15
• Parliamentary Elections (Interim Provisions) (Election Petition) Rules SI 141-2 r.17
• Parliamentary Elections (Interim Provisions) (Election Petition) Rules SI 141-2 r.4(2)
• Parliamentary Elections (Election Petition) (Production of the Record of Appeal) Rules SI 141-4
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.5
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.30(1)(a)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.82
• Parliamentary Elections Act s.25(2)
• Parliamentary Elections Act s.60(3)
• Parliamentary Elections Act s.61(1)
• Parliamentary Elections Act s.61(3)

Cases cited (15)

• Kakembo Mansur Jamir v Bogere Susan Nsensebuse (EP Application No. 75 of 2016)
• Kasibante Moses v Katongole Singh (Court of Appeal Election Application No. 7 of 2012)
• Abiriga Ibrahim v Musema Mudathir Bruce (Election Petition Appeal No. 24 of 2016)
• Nicholas Roussos v Gulam Hussein Habib Virani and Another (Civil Appeal No. 9 of 1993)
• Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
• Kakooza John Baptist v Electoral Commission and Another (Supreme Court Election Petition No. 11 of 2007)
• Nuru Kaaya v Crescent Transportation Limited (Supreme Court Civil Appeal No. 6 of 2002)
• Kikuhikunyu Faisal v Muwanga Kivumbi (Court of Appeal Election Petition Appeal No. 44 of 2011)
• Osuna v The State (2010)
• Masiko Winfred Komuhangi v Babihuga J. Winnie (Court of Appeal Election Petition Appeal No. 9 of 2002)
• Otada Sam Amooti Owor v Taban Iddi Amin and Another (Election Petition Appeal No. 93 of 2016)
• Mathina Bwambale v The Electoral Commission and Cryspus Kiyonga (Election Petition No. 7 of 2006)
• Bakaluba Peter Mukasa v Nambooze Betty Bakileke (Supreme Court Election Petition Appeal No. 4 of 2009)
• Mukasa Anthony Harris v Dr. Bayiga Michael Philip Luluwe (Supreme Court Election Petition Appeal No. 18 of 2007)
• Kamba Saleh Moses v Namuyangu Jennifer (Election Petition Appeal No. 27 of 2011)

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