Wanda v Electtrol commission & Anor (Election Petition Appeal No. 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 granted the appellant an extension of time to file the record, holding that the delay arose from a mistake of counsel which should not be visited on the litigant, who had personally pursued the record. On the substantive appeal, the Court dismissed all grounds. It held that documents (declaration of results forms and voters register) could not be admitted through counsel during re-examination, contrary to the affidavit-based mode of evidence under the Election Petition Rules. Allegations of illegal use of Government resources introduced by rejoinder amounted to a new, time-barred cause of action. On bribery, the petitioner bore the burden of proving the recipients were registered voters, which he failed to do. The appeal was dismissed with costs.

Outcome

Appeal dismissed; the second respondent confirmed as the validly elected Member of Parliament for Bungokho South constituency

Facts

The appellant and the second respondent, along with four other candidates, contested the parliamentary seat for Bungokho South constituency, Mbale District, in the election held on 18 February 2016. 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, seeking annulment of the election. The petition was dismissed. On appeal, the record of appeal was filed late: the 30-day period expired on 30 September 2016, but the record was filed on 8 June 2017, though it had been ready by 16 December 2016. The appellant attributed the delay to his former counsel who advised withdrawal. At trial the appellant sought to introduce declaration of results forms and a voters register through counsel during re-examination, and raised illegal use of a Government vehicle through a rejoinder. He also alleged group bribery of persons whose voter status was unproven.

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 register of the constituency into evidence.
4. Whether the trial Judge erred in ruling that the appellant had not pleaded illegal use of Government resources.
5. Whether the trial Judge failed to properly evaluate the evidence on record and thereby reached a wrong conclusion.

Orders

• Order extending time within which to file the record granted and late filing validated.
• Appeal dismissed.
• The trial Judge's decision upheld.
• The second respondent confirmed as the 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 (15)

• 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 (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.42(2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.43(1) & (2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.44
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.82
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.83(3)
• Parliamentary Elections Act s.25(2)
• Parliamentary Elections Act s.60(3)
• Parliamentary Elections Act s.61(1) and (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. 07 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)
• Kikulukunyu Faisal v Muwanga Kivumbi (Election Petition Appeal No. 44 of 2011)
• Osuna v The State (2010)
• Masiko Winfred Komuhangi v Babihuga J. Winnie (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 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.