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Wasieba Wanjusi v Kamana Wesonga (Election Petition No. 2 96)

High Court · [1996] UGHC 85 · 1996 Application Granted; Petition Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out an election petition on the ground that the petitioner had not been validly nominated as a candidate
Decision
Election petition struck out on the ground that the petitioner had not been validly nominated as a candidate and therefore lacked capacity to petition as a losing candidate

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the respondent was not validly nominated as a candidate because his nomination paper failed to comply substantially with section 40(1) of the Parliamentary Elections (Interim Provisions) Statute 1996. The nomination paper lacked signatures of the two persons who nominated him, did not bear the candidate's signature appointing his official agent, and was not properly authenticated on oath. Section 42(a) rendered such nomination void. Consequently, the respondent had no capacity to petition as a losing candidate, and the election petition was struck out with costs.

Outcome

Election petition struck out on the ground that the petitioner had not been validly nominated as a candidate and therefore lacked capacity to petition as a losing candidate

Facts

Sylvester Wasieba Wanjusi, the declared Member of Parliament for Bubulo West Constituency, applied to strike out an election petition brought against him by Kamana Wesonga, who claimed to be a losing candidate. The applicant contended that the respondent had not been validly nominated as a candidate because his nomination paper did not comply with section 40(1) of the Parliamentary Elections (Interim Provisions) Statute 1996. Examination of the nomination papers revealed that: the two persons stated to have nominated the respondent did not sign against their names; only eight persons supported the nomination instead of the required minimum of ten registered voters; the respondent did not sign the instrument appointing his official agent; and the nomination paper was not authenticated on oath before a Commissioner for Oaths. The respondent argued that the Returning Officer and Interim Electoral Commission had accepted his candidature, allowed him to campaign and be voted for, and that the applicant should have raised objections under sections 44 and 45 before the elections.

Issues

  1. Whether the application is properly brought before the court under the Parliamentary Elections (Interim Provisions) Statute 1996 and Parliamentary Elections (Election Petitions) Rules 1996.
  2. Whether the respondent/petitioner was validly nominated as a candidate in accordance with section 40(1) of the Parliamentary Elections (Interim Provisions) Statute 1996.
  3. Whether the respondent/petitioner had capacity to petition as a losing candidate under section 90(2)(a) of the Parliamentary Elections (Interim Provisions) Statute 1996.

Orders

  • Application allowed with costs to the applicant.
  • Election Petition No. 2 of 1996 struck out with costs to the respondent therein.
  • The election petition was brought improperly by the petitioner as a losing candidate under section 90(2)(a) of the Parliamentary Elections (Interim Provisions) Statute when he had not been validly nominated as a candidate.

Rules and key headnotes

Electoral Law — Candidate Nomination — Statutory Compliance — Mandatory Requirements
Where a nomination paper fails to comply substantially with the requirements of section 40(1) of the Parliamentary Elections (Interim Provisions) Statute 1996, including the absence of signatures of the nominators, insufficient supporting signatures, lack of candidate's signature appointing an official agent, and failure to authenticate the nomination on oath, such nomination is void under section 42(a) of the Statute and the person is not regarded as duly nominated as a candidate.
Statutory Interpretation — Mandatory Provisions — Use of 'Shall'
The word 'shall' in section 42(a) of the Parliamentary Elections (Interim Provisions) Statute 1996 is unambiguously mandatory. Non-compliance with the provisions of section 40(1) has no other result but to render the nomination paper void and consequently the nomination as a candidate void. The provision that a nomination paper shall be regarded as void if it was not signed and countersigned in accordance with section 40(1) is mandatory and not directory.
Electoral Law — Locus Standi — Capacity to Petition as Losing Candidate
A person who was not validly nominated as a candidate has no capacity to petition as a losing candidate under section 90(2)(a) of the Parliamentary Elections (Interim Provisions) Statute 1996. Such a person would be required to petition as a registered voter under section 90(2)(b), supported by signatures of not less than five hundred registered voters in the constituency.
Electoral Law — Returning Officer's Acceptance — Effect on Invalid Nomination
The fact that the Returning Officer and Interim Electoral Commission regarded and declared a person as a candidate, allowed him to campaign and be voted for, cannot validate a candidature that was void as a direct result of the failure to comply with statutory provisions governing nomination. The omission by electoral authorities to detect non-compliance does not cure a void nomination under section 42(a) of the Parliamentary Elections (Interim Provisions) Statute 1996.
Electoral Law — Pre-Election Objections — Failure to Object Before Election
A party is not precluded from questioning the validity of a person's nomination after elections merely because the party did not exercise rights under sections 44 and 45 of the Parliamentary Elections (Interim Provisions) Statute 1996 to inspect nomination papers and lodge complaints before the election. The statute does not forbid raising the matter of a person's candidature even after elections.
Civil Procedure — Election Petitions — Application to Strike Out — Procedural Basis
Where the Parliamentary Elections (Election Petitions) Rules 1996 do not provide express procedure for making an application to strike out an election petition, resort may be had to Order 48 Rules 1 and 2 of the Civil Procedure Rules read with Rule 17 of the Parliamentary Elections (Election Petitions) Rules. Rule 17 provides that the practice and procedure in respect of a petition shall be regulated as nearly as may be in accordance with the Civil Procedure Act and Rules, with such modifications as the court may consider necessary.

Legislation cited (18)

  • Civil Procedure Act s.10
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.40
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.40(1)
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.40(1)(a)
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.40(1)(b)
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.40(1)(c)
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.40(1)(d)
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.41
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.41(3)
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.41(4)
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.42
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.42(a)
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.44
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.45
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.90(2)(a)
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.90(2)(b)
  • Parliamentary Elections (Election Petitions) Rules 1996 Rule 17
  • Civil Procedure Rules Order 48 Rule 1

Cases cited (2)

  • Opoya v. Uganda
  • Piso Santos Erua v Stephan Bosreri Akabway (Election Petition No. 14 of 1996)

Full judgment

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Wasieba Wanjusi v Kamana Wesonga (Election Petition No. 2_96) [1996] UGHC 85 (18 October 1996)
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