ENTEBBE: There will be a new hearing of Kayanja De Paul’s petition for a new election. De Paul lost the Entebbe Municipal Mayoral election.
The Court of Appeal Justices Fredrick Egonda-Ntende, Christopher Izama Madrama, and Eva Luswata made the decision after quashing the orders of the High Court that dismissed Kayanja’s petition on a point of law.
The Electoral Commission declared Fabrice Rulinda, an independent candidate, the winner with 6,703 votes to Kayanja’s 5,576 votes.
Kayanja, through his lawyers, Alaka and Company Advocates, went to the High Court and said that 74 polling stations had their results changed or lied about.
When Rulinda and her lawyer team asked the court to throw out the petition, they said that affidavit evidence that Rulinda and her lawyer team had used broke the law on affidavit evidence and that it was impossible to fix.
The court heard that the affidavits were based entirely on hearsay and that the documents accompanying them had also been forged. According to the two respondents, the affidavits were also coached in similar words, deferring the names of deponents, and they argued that it violated the law on affidavits.
Kayanja’s petition was found to be null and void.
She also said the judge made mistakes in both law and fact by dismissing her petition because of trivial and unsubstantiated suspicions about her evidence. This led to an injustice, she said in court.
Kayanja said that the judge erred both legally and factually when he said that the petition was still unsupported and failed because it didn’t meet statutory requirements for affidavit evidence. He said that this led to a miscarriage of justice.
After the trial, he asked the court to overturn Justice Muwata’s decision and order a new trial. Or the Justices could let him appeal in a way that they thought was best.
On Friday, the Justices ruled that affidavit evidence is not the primary or appropriate mode for proving the grounds in an election petition, adding that the people who swore those affidavits ought to have been summoned for cross-examination instead of dismissing the petition on the basis that it was based on hearsay.
“I would make an order that the order of the High Court striking out the Appellant’s petition is hereby set aside.” Secondly, I would make an order that the petition shall be remitted to the High Court for trial and evidence at the trial shall proceed by summoning witnesses of either side under the Civil Procedure Rules in an ordinary way, “ordered Madrama in the lead judgment.
He also said that the witness affidavits could be used as witness statements if the witnesses were called to court and sworn in to back up their statements. They could then be cross-examined by the opposing party and re-examined.
The Justices said that because the Parliamentary Elections Act of 2005 has a statutory way for evidence to be presented, they don’t need to look at Kayanja’s other arguments. They said that because Kayanja’s point of law led to this appeal, Rulinda must pay his costs both at the Court of Appeal and below.
Lillian Buchyana, the Registrar of the Court of Appeal, read the Justices’ summary of their decision in her chambers. She did this for them.
Samuel Muyizzi Mulindwa, Kayanja’s lawyer, says that the judge threw out the case without hearing the facts of the case.