Ronald Kibuule v Electoral Commission and Another (Election Petition 3 of 2026) [2026] UGHC 1245 (6 October 2026)

) THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO HCT-1 4-CV-EP-0003-2026 IN THE MATTER OF THE PARLIAMENTARY ELECTIONS ACT CAP 177 AND l0 rN THE MATTER OF THE PARLTAMENTARY ELECTTONS (ELECT|ON pETtTtONS) RULES St-141-2 AND t5 IN THE MATTER OF THE PARLIAMENTARY ELECTIONS OF DIRECTLY ELECTED MEMBER OF PARLIAMENT FOR MUKONO COUNTY NORTH CONSTITUENCY, IN MUKONO DISTRICT HELD ON THE 1sTH JANUARY 2026. HON. RONALD KIBUULE PETITIONER VS 20 l.ELECTORAL COMMISSION 2.HON. KIWANUKA ABDALLAH RESPONDENTS BEFORE: HON. JUSTICE GODFREY HIMBAZA l5 RULING ON APPLICATION TO PRODEED BY VIVA YOCE EVIDENCE lntroduction This petition was filed by the petitioner under the Parliamentary Elections Act Cap 177, and The Parliamentary Elections (Election Petitions) Rules Sl 14'l-2. The Petition 30 challenged the outcome of the Parliamentary Elections held on 1Sth January, 2026 for the directly elected member of parliamemt for Mukono County North Constituency, in Mukono District and the petition sought for; , . r a) A declaration that the elections for directly elected member of parliament for Mukono fifuu. County North Constituency was not held in accordance with electoral laws. 'a(roFA 1 5 b) The election of the 2nd respondent was riddled with multiple malpractices, illegal practices and election offences. c) That the election of the 2nd respondent be set aside. d) That a fresh election be ordered in Mukono County North Constitiuency. e) Costs of the petition be provided for. When the petition came up for hearing on 30th September 2026, Counsel Frank Kanduho made an application to proceed by adducing oral evidence at the hearing. This application was opposed by counsel for the 2nd respondent. Submissions were made for and against the application by the respective counsel. l0 25 Leoal Reoresentation 15 At the hearing, the petitioner was represented by Mr. Frank Kanduho and Mr. lvan Bwowe, the 'tst respondent was represented by Mr. Lugoloobi Hamidu, while Mr. Katumba Chrisostom, Ms. Julian Nakirijja, Mr. Appollo Kwesiga, Mr. Kirabira Renon and Mr Lubega Derrick represented the 2nd respondent. 20 Petitioner'sSubmissi ons on the application. Counsel for the petitioner Mr. Frank Kanduho made reference to Section 83 of the Parliamentary Elections Act and made a prayer to be allowed to produce 65 witnesses to give evidence orally. He relied on the case of Vincent Kayanja De Paul Vs Fabrice Rulinda & anor EPA No. No. 30 of 2021 where the Court of Appeal decided that the court can admit evidence in three ways; By affidavit evidence, By Viva Voce evidence or by witness statements. 2nd Respondent's submi ions on the apolication. Mr Katumba Chrisestom, counsel for the 2'd respondent vehemently objected to the application.Counsel averred that he was aware of the provisions of Section 83 (1)(a) of 30 the Parliamentary Elections Act but that the law has progressed to the extent that civil courts have departed from the old system of calling witnesses to give evidence orally.Counsel referred to the Civil Procedure (Amendment) Rules,201 9 which introduced Rule 5A that provides that evidence in civil cases is by way of witness statements served on the opposite party.He averred that these statements are supposed to be tendered in 35 evidence upon beig served onto the opposite party and the witnesses are subjected to , crossexamination by the opposite party.Counsel submitted that by that process, court ff,t@gnp,"O from the archaic procedure of leading oral evidence.He relied on the Supreme '&,# Consideration bv Court. 2 5 Court case of Bakaluba Mukasa Peter Vs Betty Nambooze Bakireke EPA No. 04 of 2009, where the Supreme Court at page 16 of the decision and particularly the judgement of Bart Magunda Katureebe, where he held as follows; "l should first note that this was an election petition where under rule 15 of the Election Petitions Rules, all evidence at trial is by way of affidavit except where a person who swore an affidavit is crossexamined by the opposite pafty or reexamined or where the coutt on its own motion examines any witness. Even in ordinary Civil Procedure Suifs, courf has long shifted from oral evidence to wlfness statements, after the amendment of the Civil Procedure Rules and the intention of doing so is to expedite the hearing of civil matters" Counsel further submitted in reference to the Kayanja case (Supra), that the court decided that the matter should be returned to the trial court and the trial court shall summon witnesses of either side under the Civil Procedure Rules and that the witnesses shall be examined as if they had filed witness statements. Counsel averred that this judgement was delivered in 2023, and that the court was aware of the amendment to the Civil Procedure Rules. Counsel therefore averred that the procedure of filing witness statements is the most convenient for purpuses of expeditious hearings. Counsel further averred that counsel for the petitioner had intimated that he intended to call 70 witnesses as per the Joint Scheduling Memorandum.That, as respondents they do not know the nature of evidence to be adduced by the petitioner, which polling stations are contested and the particular allegations.Counsel averrered that that makes it very hard and complicated for the respondents to identify a witness to appear in court and rebut the evidence of a particular witness. Counsel averred that this will burden the respondents to identify suitable witnesses who can rebut the allegations. Counsel further averred that this also implied that the respondents would also have a similar number of witnesses to be called, and hence more adjournments. Morever , that the petitioner had chosen the path of filing affidavits when he filed his first 5 affidavits. Counsel concluded by reiterating his prayer that they be allowed to proceed by way of witness statements under the Civil Procedure Rules. Counsel Kwesiga Appollo weighed in, in addition to Mr Katumba's submissions and stated that the purpose of witness statements was to ensure that the opposite party is aware of e witnesses intended to be called. Counsel argued that Viva Voce evidence referred to the Kayanja case meant crossexamination and reexamination. l0 t5 20 25 30 35 ffi'; 3 5 Petitioner's Submissions in reioinder ln rejoinder, Mr Frank Kanduho averred that the authority of Kizza Besigye Vs Museveni(supra) was cited out of context in the sense that it was confined to Presidential Elections not Parliamantary elections. 2ndly, that whether some of the 65 witnesses were in court or not was immaterial as a concern, because at that point they were not yet witnesses of coort until when they are granted leave by court to testify, then shall they be required to step out of court. 3rdly, in response to the 2nd respondents contention that since the petitioner had already started off by filing affidavits, he should have maintained that option, counsel submitted that he had intimated in the petition that he would seek leave to proced by oral evidence, but the 2nd respondent never rebutted the said prayer in the answer to the petition. 4thly, he averred that the 2nd respondent never took issue with the petitioner's prayer to proceed by oral evidence. 5thly, in response to Counsel Katumba's submissions that allowing the prayer to proced with oral evidence by calling the 70 witnesses would also prompt him to call the same number or even more witnesses , which would amount to wastage of court's time, counsel responded that the Joint Scheduling Memorandum was very clear on the number of witnesses each party would call. 10 l5 20 30 35 ln response to the submission that the 2nd respondent does not know the nature of evidence that the petitioner was going to bring, counsel averred that parties are bound tby their pleadings, and there is no way the petitioner can bring other evidence other than that laid out in the pleadings. ln respect to the Kayanja case(supra), counsel averred that the case did not forbid oral evidence but rather gave it as an option, and that the case was dealing with a peculiar situation where the affidavits of the petitioner had been strauck out, unlike in the current case where the witneeses shall be testifying orally. ffigunsel further responded to the authority of Bakaluba Mukasa(supra) cited by counsel 'g$t6/lff m. 2nd respondent. He averred that with the amendment of the Parliamantary 4 5 Elections Act, the Court of Appeal became the final court of Appeal in election matters. That ln Bakaluba case, the contention was not on the mode4 of proceeding under rule 15 but rather it was in respect of allegations of bribery. Counsel contended that Bakaluba Mukasa case can only be relevant while considering matters of law, but when it comes to matters of electoral proceedings, Vicent Kayanja de Paul case was the authority. Counsel further averred that the 2nd respondet would not be prejudiced by the prayer to proceed ex parte and that he had not demonstrated that he would be prejudiced, in any way, throught his submission. Counsel lvan Bwowe also weighed in and submitted, that the contention by counsel for the 2nd respondent that viva voce evidence only referred to cross-examination and re- examination, was wrong because the literal meaning of the word viva voce meant oral testimony by word of mouth. The law governing proceedings in election petitions is Section 83 of the Parliamentary Electiions Act which provides as follows; 83 (1) At the tial of an election petition; The above provision envisages that witnesses may be summoned in two ways. Witnesses summoned by or on behalf of the parties, and witnesses summoned by court itself. I0 l5 l0 30 However, under rule 15(1) of the Parliamentary Elections (Election Petitions)Rules, Sl 141-2, it is provided that all evidence at the trial in favour of or against the petition shall be by way of affidavit read in open court. It seems to be widely acknowledged that evidence in election petitions is by way of filing Hl#p affiOavits of witnesses, for or against the petition. However, the case of Kayanja Vincent ''d4rrrfr. paul vs. Fabrice Rulinda EPA No. 30 of 2021 introduced other modes of adducing Decision of court on the application to oroceed bv oral evidence. 25 (a) Any wlfness shall be summoned and sworn in the same manner as a witness may be summined and sworn in civil proceedings; (b) The High Court may summon and examine any person who, in the opinion of the court, is likely to assist the couri to arrive at an appropriate decision. (c) Any person summoned by the High couft under paragraph (b) may be crossexamined by the padies to the petition if they so wish. 5 5 evidence during election petitions. The Court of Appeal also seemed to suggest that Rule 15 of the Parilamentary Elections (Election Petitions) Rules Sl 141-2 was inconsistent with section 64 of the then Parliamentarty Elections Act (equivalent to section 83 of the Current Pariamentary Elections Act). Justice Madrama(J.A)(As he then was), who wrote the lead judgement had this to say; "Rule 15 of the Parliamentary Elections (lnterim Provisions) Rules purpofts to enforce section 64 of the Parliamantary Elections Act though Rule 1 5(1) is clearly inconsistent with section 64 of the Parliamentary Elections Act.." He went on on page 17 of the judgement; " Clearly, section 64 sefs oui the correct procedure to be followed at the trial of an election petition and stipulates that at the tial of an election petition, any witness shall be summoned and sworn in the same manner as a uvlfness may be summoned and swom in civil proceedings... to be specific underorderlTof theCivil Procedure Rules, the procedure for prosecuting civil suits is given and specifically under rule 1(2)(a) it provides fhaf wilnesses shall be examined from day to day suggesting that their evidence is taken viva voce in that they have to be examined one by one until the last witness is examined. Order 17(ule(1) 2) (a) provides as fol/ows; a) When the hearing of evidence has once begun, the hearing ot the suit shall be continued from day to day until all the wifnesses in attendance have been examine4 unless the court finds the adjournment of the hea ng beyond the following day necessary for reasons to be recorded' Suffice it to say, that the rules were modified by the Civil Procedure Amendment Rules to provide for witness statements to be filed as testimony subject to confirming them on oath and to crossexamination at the option of opposing pafty.." My analysis of the above ruling is that a party may file affidavits under Order 19 of the Civil Procedure Rules which allows parties to proceed by way of affidavit, or a party may proceed by way of witness statements under Order 5A of the Civil Procedure Rules or a party may even proceed by way of oral evidence under Order 17.1 do note that the above case did not abolish oral testimony and indeed it recognized that, that procedure is acceptable under Order '17 of the Rules.Sufflce it to say, Order 17 of the Civil Procedure Rules was not amended by the Civil Procedure Amendment Rules,2019. lt is my finding l0 t5 20 25 30 35 W,r 6 5 that counsel for the petitioner would not be out of scope to pray to proceed by way of giving oral evidence. The above position was further buttressed by the Court of Appeal in the case of BagumaSpellanza Muhenda Vs Kunihira Faith Philo & Electoral Commission 10 Election Petition Appeal no. 19 of 2021 , Justice Richard Buteera(DCJ) relied on the case of Hon. Lokeris Samson Vs Komol & Electoral Commission, Election Petition Appeal no.09 of 2021 where the Court of Appeal while interpreteing section 64 (equivalent of section 83 Parliamentary Elections Act) observed a as follows; " 64(1) a) Anv witness shall be summoned and swom in the same manner as a witness llnav be summoned and rn in civil oroceedinos l0 a. The couri may summon and examine any person who in the opinion of the court is likely lo asslsf the courT to arrive at an appropriate decision. b. Any person summoned by court undr this paragraph may be crossexamined by the parties to the petition if they so wish. The inference from the above section is that an election petition can stand without the accompanying affidavit and the allegations in the petition mav be her forms of evidence as usuallv happens in ordinarv civil 25 35 proceedinqs . . . my understanding of the above rule is that it was intended to expedite the tial ofelection petitions.But in the absence of the pincipal affidavit, the above rule cannot be said to have excluded recourse to proof of the allegations in the elction petition usino the other modes applicable in ordinarv civil proceedinos which are ermissible bv section 64 of the PEA 30 ln my understanding, other forms referred to in the above authorities include oral evidence and witness statements. I do agree with counsel for the 2nd respondent that the Civil Procedure Rules were amended and introduced Order 5A which provides that evidence is by way of witness statements. However, it ts not true that the Civil Procedure (Amendment) Rules did away with oral evidence. As observed in Kayanja case(supra) Oral evidence is one of the modes acceptable in election petitions. All the above authorities were decided after 2019, and the Court of Appeal was well aware thatthe Civil Procedure Amendment rules were already in place. ln fact in Kayanja case(supra) while Itffi;ffns the introduction of witness statements under the amendment Rules, Justice 7 5 Madrama also recognized the continued applicability of Order 17 of the rules that provide for day to day examination of witnesses.(Order 17 (2)(a) Civil Procedure Rules. l0 I am also in disagreement with counsel for the 2nd respondent that viva voce evidence envisaged in the Kayanja case referred to crosseamination and reexamination. lt meant calling a witness and subjecting them to an oath before testifying in the witness box. Consequently it is a matter of choice whether to proceed by oral evidence or by witness statements. I am further in agreement with Counsel for the Petitioner that the case of Bakaluba Peter Mukasa Vs Betty Nambooze (2009) (Supreme Court) was decided before the amendment of the Law to make the Court of Appeal the highest appellate court in electoral matters. Consequently, later decisions of the Court of Appeal on the current sub,ect, are the authorities relevant to the subject. Orders: Consequently, I do observe that the 2nd respondent intimated in his petition under paragraph 15 that he would he making a prayer to produce oral evidence as early as March, 2026 when he filed his petition, the said prayer is hereby allowed. ln the final result, I do hereby make the following orders; a) The prayer by the petitioner to proceed by oral evidence is hereby allowed. b) The petitioner shall begin by leading the five witnesses whose affidavits are already on court record. c) The petitioner's counsel shall then call the other witnesses listed in the Joint Scheduling Memorandum and lead their evidence orally upon taking oath. d) The respondents shall be free to lead their witnesses either orally or to proceed by way of witness statements, whichever is desirable to them. e) No order is made as to costs. l5 20 25 30 IT IS SO ORDERED. DATED is 6th r,2026 GODFR 35 BAZA AG. 8 ) l0 9