In her ruling, Justice Apiny found that the petitioner did not serve EC as ordered and that in Kamba’s affidavit of service, he did not indicate whether he later served any of the Commission lawyers or sought other means to implement the service.
Justice Margaret Apiny
has dismissed a petition by Patricia Magara challenging the victory of Hassan
Kirumira as the Katikamu South Constituency Member of Parliament. Magara, who contested on the National Resistance Movement-NRM ticket, sued the
Electoral Commission and Kirumira who ran on the National Unity Platform-NUP
party ticket citing electoral irregularities including the commission making
errors in data entry, which saw them introduce a new person on the declaration
However, Justice Margaret Apiny dismissed the petition on Tuesday on grounds
that the applicant did not accompany it with affidavits as provided for under
the rules governing Elections Petitions. This was after Justice Apiny expunged
Maraga's affidavits from the court record for failure to serve the Electoral Commission
and making changes to the affidavits contrary to the court orders.
On Monday last week, Justice Apiny directed Magara to have her affidavits and
those of her witnesses recommissioned before a licensed commissioner of oaths
after the court learned that earlier affidavits were commissioned by an unlicensed
She directed the petitioner not to change the content of the affidavits and
that recommissioned affidavits be filed before the court and served to Kirumira and
Electoral Commission by close of business on September 7, 2021.
The matter was up for scheduling on September 9, 2021. However, the lawyers of
Kirumira and EC objected to the recommissioned affidavits. Kirumira’s lawyers
led by Ronald Ruhinda told court that the petitioner had served them the
recommissioned affidavits at 4 pm on September 8.
EC lawyer Twaha Kabuye told the court that the petitioner had amended some of
the affidavits including that of Mugumba Lubowa, which had been signed and
thumb printed yet in the original affidavit, the witness only used a thumbprint.
The counsel told the court
that a different person having realized that the original affidavit had a
thumbprint and not a signature could have added the thumbprint in the
recommissioned affidavit. Other affidavits included that of Sulaiman Sande and
Hussein Iga, which were not part of the original affidavits while the
affidavits of Willy Sebulanyi and Harriet Nalunkuma were not recommissioned.
Kabuye argued that
this amounted to amending the content of the affidavits contrary to the court
orders. On Saturday, the petitioner’s lawyer Julius Turinawe told the court how
difficult it was to gather witnesses and have their affidavits recommissioned
on time because they live in different areas in Luweero.
He said that they were
only able to complete the recommissioning process after 4 pm on September 7,
2021 and filed the affidavits before court but failed to serve the
respondent. He also said that when they went to serve Kirumira’s lawyers
on September 8, Counsel Ronald Ruhinda kept in a meeting with clients and when
he was ready to be served, he took more time to read the affidavits.
Court heard that
Counsel Kasim Kamba who had gone to serve Ruhinda waited for 30 minutes because
he was still in the court. Turinawe also told the court that Kamba went to EC
offices and asked to serve one of the commission lawyers, Eric Sabiiti but he
declined to receive the affidavits, saying he was not the one handling the
Regarding Iga’s affidavit, Turinawe said that the affidavit had been filed
before court on April 28th, 2021. As for Sulaiman Sande’s affidavit,
Turinawe admitted that it was a new affidavit and that they did not need leave
of court to file it since the case had not been scheduled yet. Regarding the
two affidavits that were not recommissioned, Turinawe said that the petitioner
had called and even went to the homes of the two witnesses but to no avail.
To counter Turinawe’s submission, Kirumira’s lawyer, Tonny Okwenye said that had
it been a question of time, then the petitioner should have served them with the
recommissioned affidavits in the morning of Wednesday, September 8th having
failed to do so the previous day as ordered by the court. He also argued that
the petitioner should have asked the court to extend time.
As regards the two affidavits that were never recommissioned, Okwenye told the
court that the petitioner should have sought leave of court to remove them
because whatever is filed before the court becomes part of the court, record which
cannot be eliminated without court permission.
Regarding the new
affidavit, Okwenye disputed the argument that the matter had not been set for
scheduling. He said the process of scheduling had started and parties were
ordered to file their joint scheduling memorandum by September 8.
court to dismiss the affidavits with cost. In her ruling, Justice Apiny found
that the petitioner did not serve EC as ordered and that in Kamba’s affidavit
of service, he did not indicate whether he later served any of the Commission
lawyers or sought other means to implement the service.
She also found that the petitioner filed a new affidavit and altered some of
the affidavits including that of the petitioner contrary to specific orders by
the court that the content of the affidavits not be changed. She therefore
expunged all the affidavits from the court record and dismissed the petition
too since it could not stand without affidavits.
He directed the petitioner
to pay costs to the Electoral Commission and Kirumira. As Magara flee from the
media, Kirumira celebrated his victory, saying justice has been served.
//Cue in: “Today I have…
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//Cue in: “Olunaku lwaleero ne…
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