The Court of Appeal in Kampala has ordered for fresh hearing of a petition challenging the victory of Fred Kayondo as the Mukono South County Member of Parliament.
The order was made by a panel of three Court of Appeal Justices comprised of Deputy Chief Justice Richard Buteera, Catherine Bamugemereire and Irene Mulyagonja following a petition filed by National Unity Platform’s Wilson Male.
Kayondo, a candidate for the Democratic Party emerged the victor in a race that attracted six candidates. He polled 26,512 votes, while Male, the challenger from the National Unity Platform obtained 4,831 votes to secure the third position in the race.
But Male petitioned the High Court in Mukono to nullify the results on grounds that Kayondo did not have the required number of voters to support his nomination.
He added that while he was nominated as a candidate for the Democratic Party, his campaign posters were printed with symbols and slogans of the National Unity Platform.
Even on polling day, he adds, the ballot papers had the symbols swapped, indicating that Kayondo was the candidate endorsed by the National Unity Platform, an error which not only confused voters but also affected the outcome of the process.
But during the hearing, Kayondo and the Electoral Commission asked the Court to dismiss the petition on grounds that the commissioner of Oaths who had commissioned Male’s affidavits did not have a valid practising certificate at that time. Accordingly, Justice Olive Kazaarwe dismissed the petition without hearing its merits.
As a result, Male appealed against the decision on grounds that the judge erred in law and fact when she held that his petition was incompetent and incurably defective.
Kazaarwe was also faulted for having under looked and condoned Kayondo’s defective pleadings and failure to consider Male’s submissions.
In their decision on Tuesday afternoon, the Court of Appeal Justices agreed that the Judge erred when she dismissed Male’s petition for having defective affidavits yet she allowed the same from Kayondo and the Electoral Commission.
“It was contradictory that the trial Judge impeached the affidavits sworn before a Commissioner of Oaths for lack of a practising certificate and impeached his inability to practice as an advocate, yet the same breath allowed equally defective affidavits by the opposite counsel,” the Justices said.
They indicated that under the said section 14 of the Advocates Act, the Court has a duty to protect innocent litigants from errant and crooked Advocates by allowing them to rectify the defects in the affidavits if they are commissioned by the Commissioner of Oaths who did not have a valid practising certificate.
“The Court also found that a petition can stand alone and can be heard without the accompanying affidavit and that where there is an affidavit in support, it is brought in witness of and not as an integral part of the petition. Where the affidavit in support is defective, it can be struck off without affecting the petition. We find no reason to depart from the above reasoning”, said the Justices.
The Justices said that they are satisfied that Male made an application seeking to rectify the defects and that his application ought to have been allowed by the trial Judge which she erroneously failed to do.
As a result, the judges ruled that the file goes back to Mukono High Court for a retrial and that issues in the petition be heard on their merits before a different Judge.
On June 16 2021, the Court of Appeal Justices comprised of Geoffrey Kiryabwire, Stephen Musota and Christopher Gashirabake ordered a retrial of the petition where Kazaarwe had dismissed an election petition filed by Ritah Nabadda challenging the victory of Kayunga District Woman Member of Parliament Idah Nantaba for having bribed voters.
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