THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MBALE

ELECTION PETITION NO. 015 OF 2021
IN THE MATTER OF THE PARLIAMENTARY ELECTIONS ACT 17/2005 AS
5 AMENDED
AND
IN THE MATTER OF THE PARLIAMENTARY ELECTION HELD ON THE 14TH
JANUARY 2021
MUSUYA SOOBI ANNET FLORENCE…………………………………PETITIONER
10 VERSUS
1.MUKHAYE MIRIAM
2. THE ELECTORAL COMMISSION ……………………………..RESPONDENTS
3. NATIONAL IDENTIFICATION
AND REGISTRATION AUTHORITY
15

BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK, JUDGE

Judgment
Introduction:
The petitioner was one of the four candidates that contested for the seat of
20 District woman representative to Parliament for Mbale District whose election
was held on the 14th of January 2021. The 2nd respondent published the election
results in the gazette with the 1st respondent as the winner having obtained
29,073 votes while the petitioner had 25, 864 votes.
The petitioner being dissatisfied with the outcome of the said elections brought
25 the instant petition under Sections 60, 61(a), (c), 62, 63, 68(7), 70, 83A (1) (a)
and (b) of the Parliamentary Elections Act, 2005 as amended, Articles 61 and 68
of the Constitution of the Republic of Uganda, 1995, and Rule 4 of the
Parliamentary Elections (Election Petitions) Rules S.I 141 -2, seeking the
following orders;

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 a. That the 2nd and 3rd respondents acted in fundamental violation of the law
when they introduced the 1st respondent’s name “Mukhaye Miriam” on
the voters’ register for Mafutu church polling station Bukhuma Parish,
Bumbobi Sub-County in Bungokho Central County, alongside her lawful
5 name, “Wangisi Mukhaye Mariam Wangisi”.
b. The 1st respondent’s nomination under the name “Mukhaye Miriam” was
invalid and hence she was not a candidate in the race.
c. The 1st respondent committed illegal practices and aided commission of an
electoral offence during the campaign period and was therefore not validly
10 elected as Woman Member of Parliament for Mbale District.
d. A declaration that your petitioner as the validly nominated candidate with
the highest number of votes was duly elected as winner of the said election
for District Woman representative to Parliament, Mbale.
e. In the alternative without prejudice to the prayer in (d), the election of the
15 respondent be annulled and fresh election be conducted in the said district.
f. The respondents pay the costs of the petition jointly or severally to the
petitioner.
Pleadings:
The petitioner contended that the 1st respondent was not eligible for nomination
20 under the name “Mukhaye Miriam” which was unlawfully introduced onto the
voter register through collusion between the 1st, 2nd and 3rd respondent. That the
1st respondent was registered as a voter in 2016 under the name “Wangisi
Mukhaye Mariam Wangisi” on the voters’ register for Nasyera primary school A
polling station, Bukhuma Parish, Bumbobi Sub County, Bungokho county south,
25 Mbale under voter registration No. 52699799.
Further, that the 1st respondent was in respect of the general elections for 2021,
registered as a voter under the name “Wangisi Mukhaye Mariam Wangisi” on
the voter’s register for Mafutu Church polling station, Bukhumwa Parish,
Bumbobi Sub-County in Bungokho Central County under voter Registration No.
30 52699799.
That the 1st respondent caused the introduction of “Mukhaye Miriam” on the
voter’s register of Mafuta Church polling station, Bukhumwa Parish, Bumbobi
Sub-County in Bungokho Central County, well aware that “Wangisi Mukhaye
Mariam Wangisi” was already there as the same voter. That this was done in
35 collusion with the 2nd and 3rd respondents.

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 Furthermore, that the 1st respondent had never changed her name from
“Wangisi Mukhaye Mariam Wangisi” that was on the register in 2016 to
“Mukhaye Miriam”. Instead her name was introduced onto the voters register in
2020. Consequently, both names appear side by side in the register.
5 The petitioner also contended that the said election for the District woman
representative to Parliament for Mbale was not conducted in accordance with the
provisions and principles laid down in electoral laws in so far as the 1st
respondent committed various illegal practices and election offences to wit;
donation of drugs and money.
10 The petition was supported by the affidavit sworn by the petitioner, the other
supporting affidavits were expunged from the record.
The 1st respondent in answer to the petition on the other hand denied all the
allegations made by the petitioner and averred that the 1st respondent was
eligible and lawfully nominated to contest as a District woman representative to
15 Parliament for Mbale District under the name of ‘Mukhaye Miriam’ and has
never gone by the name ‘Wangisi Mukhaye Mariam Wangisi’. The 1st respondent
also denied engaging in any electoral malpractices.
The answer to the petition by the 1st respondent was supported by the affidavits
sworn by the 1st respondent, Dr. Jonathan Wangisi, Malema George Calvin,
20 Kanyago Dinah, Gidudu David, and Kigere Siragi.
The 2nd respondent in her answer to the petition denied the petitioner’s
allegations and contended that the 1st respondent was validly nominated having
found her a dully registered voter and academically qualified for the position of
Member of Parliament in accordance with the electoral laws and principles
25 governing elections. That the 1st respondent was nominated and elected, on the
harmonization of her particulars appearing on the National Voters’ Register and
her academic qualifications.
That the 2nd respondent was not aware of the allegations of commission of
electoral offences of voter bribery, giving donations, involvement of public
30 officers as none was ever reported before or during election period.
The 2nd respondent’s answer to petition was supported by the affidavits of
Amongin Emily Onyas, Namatovu Ruth, Musibiha Joy Juliet, Ochama Ahmed and
Buyera Moses.

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 The 3rd respondent in her answer to petition averred that there was no collusion
with the 1st and 2nd respondents to unlawfully introduce the 1st respondent’s
name onto the voters’ register. That the 3rd respondent does not have the mandate
to add or remove any person from the voters’ register which mandate is solely
5 with the 2nd respondent.
Further, that the 1st respondent applied for a National identification card with the
3rd respondent and indicated her name as “Wangisi Mukhaye Miriam” but later
on had the name “Wangisi” eliminated and the National Identity card was left
bearing the name “Mukhaye Miriam”. That the 3rd respondent accordingly
10 submitted this updated information to the Electoral Commission to update the
voters’ register.
The 3rd respondent’s answer to the petition was supported by the affidavit of
Kagina David.
Representation:
15 Mr. Wanambuko Innocent together with Mr. Mwesiga Phillip represented the
petitioner, Mr. Cornelius Watulu together with Mr. Ojok Godfrey Odur
represented the 1st respondent, while the 2nd respondent was represented by Mr.
Weteka Patrick together with Ms. Katutu Gilda and the 3rd respondent was
represented by Mr. Masaba Peter. All parties filed written submissions.
20 At scheduling the following issues were raised for court’s determination:
1. Whether the nomination of the 1st respondent by the 2nd respondent as a
candidate for District Woman Member of Parliament Mbale District was
valid and lawful?
2. Whether the 1st respondent undertook the right procedure to register the
25 change of name with the 3rd respondent in accordance with the law?
3. Whether the 1st respondent committed any illegal practices and/or election
offences personally or through her agents with her knowledge, consent or
approval?
4. What remedies are available to the parties?
30 Burden of proof and standard of proof:
Counsel for the petitioner in their submissions stated that the burden and
standard of proof in election petitions are well settled both in the provisions of
the Parliamentary Elections Act 2005 as amended and case law.

4
 The burden of proof in election petitions lies on the person bringing the action
and proof is on the basis of a balance of probabilities in accordance with Section
61(10) and (3) of the Parliamentary Elections Act,2005. (See: Mukasa Anthony
Harris v. Dr. Bayiga Michael Philip, SC EPA No.18/2002).
5 Counsel for the 1st respondent in addition to the above cited Section 102 of the
Evidence Act which provides that;
“The burden of proof in a suit or proceeding lies on that person who would
fail if no evidence at all were given on either side.”
It is the Petitioner in this case who bears the burden of proving all her allegations
10 to the satisfaction of this Court. The petitioner is therefore required to adduce
cogent, convincing and compelling evidence to prove her case. (See: Masiko
Winfred Komuhangi v. Babihuga J. Winnie, Election Petition Appeal No. 9 of
2002).
I concur with the submissions of counsel for the petitioner, 1st, 2nd, and 3rd
15 respondents together with all the authorities cited there under that I will not
reproduce here, in as far as the burden and standard of proof in election petitions
are concerned.
The parties chose not to cross examine any of the witnesses.
Preliminary objection:
20 Counsel for the 1st and 2nd respondents raised a preliminary objection in regard
to the jurisdiction of this court on issues of nomination.
Counsel for the 1st respondent submitted that the complaint by the petitioner in
regard to nomination of the 1st respondent offends Articles 61(1(f) and 64 (1) of
the Constitution of the Republic of Uganda, 1995. And in the case of Akol Hellen
25 Odeke v. Okedel Umar, Election Petition Appeal No. 6 of 2020, it was held that;
the High Court does not have jurisdiction to hear and determine disputes arising
before and during the polling day, (including nomination), as a court of first
instance. While dismissing the argument on the unlimited jurisdiction of the
High Court, the Court of Appeal in that case held that Article 139 (1) of the
30 Constitution of the Republic of Uganda 1995 is subject to Articles 61(1)(f) and
64(1) of the same law.
Counsel for the 1st respondent also cited the case of Kasirye Zzimula Fred v.
Bazigatirwawo Kibuuka Francis Amooti and Electoral Commission, Election
Petition Appeal No. 01 of 2018, where it was stated that; issues of nomination
5
 should be lodged with and resolved by the Electoral Commission before the
election and where the petitioner does not challenge the nomination, he or she is
deemed to have waived his or her right and is therefore estopped from
challenging the nomination after the election.
5 That in the circumstances the petitioner waived her right when she failed to
lodge a complaint with the Electoral Commission before and during polling as
provided under Section 15 of the Electoral Commission Act. That the petitioner
should have inspected her opponent’s nomination papers and lodged a complaint
with the Commission and if dissatisfied with its decision appeal to the High
10 Court.
Counsel for the 2nd respondent also contended that the ground challenging
nomination offends the provisions of the Constitution of the Republic of Uganda,
1995 which gives the Electoral Commission the mandate to hear and determine
election complaints arising before and during polling under Article 61(1)(f),
15 which states;
“The Electoral Commission shall have the following functions –
(f) to hear and determine election complaints arising before and during
polling.”
Further, that Section 15 of the Electoral Commission Act empowers the
20 Commission to resolve complaints arising at any stage of the electoral process. It
provides that;
“Any complaint submitted in writing alleging any irregularity with any aspect
of the electoral process at any stage, if not satisfactorily resolved at a lower
level of authority, shall be examined and decided by the commission; and
25 where the irregularity is confirmed, the commission shall take necessary
action to correct the irregularity and any effects it may have caused.”
Counsel for the 2nd respondent noted that issues of qualification prior to
nomination of the 1st Respondent are an irregularity and ought to have been
brought to the attention of the 2nd Respondent for legal action before polling.
30 Counsel cited the case of Byanyima Winnie v. Ngoma Ngime Civil Revision No.
0009 of 2001, where it was held that; the Electoral process flows like a river. You
have to build a dam across it to halt its rapid movement. It moves like a speeding
bus. You have to stop it well in time. Short of that you will, certainly, be left
behind.

6
 Counsel for the 2nd respondent further submitted that, there was no evidence
whatsoever that the Petitioner and/or any other person lodged any complaint
with the 2nd Respondent in regard to the nomination of the 1st Respondent. That
had the Petitioner brought her complaint in regard to the qualification of the 1st
5 Respondent, the 2nd Respondent would have entertained and determined the
same in accordance with the law. Rather she chose to sit on her right and is
therefore estopped from bringing the same after elections. (See: Kasirye Zimula
Fred v. Bazigatirawo Amooti (Supra)). Counsel for the 2nd respondent prayed that
the petition be dismissed with costs.
10 Counsel for the petitioner in rejoinder submitted that the authority of Akol Hellen
Odeke V Okodel Umar (Supra) as cited by the 1st Respondent is distinguishable
from the present facts. That the Respondent in the said appeal challenged the
nomination of the appellant through a Miscellaneous cause in the High Court at
Soroti on account of the discrepancy in her names. However, the respondent had
15 not lodged a complaint with the returning officer or the Electoral Commission
against the appellant. Thus, the ratio decidendi that the High Court at Soroti did
not have jurisdiction to hear and determine the respondent’s application as a
court of first instance. Therefore, the decision is inapplicable to the present facts
of the petition.
20 Counsel for the petitioner relied on the case of Namboowa Rashiida V Bavekuno
Mufumu Godfrey Kyeswa & Electoral Commission, Election Petition Appeal
No.69/2016, where the Court of Appeal held that;
“We are of the view that the intention of Parliament in enacting Section 15 of
the Electoral Commission Act was not to limit the inherent powers and
25 jurisdiction of the High Court to determine and resolve complaints of electoral
irregularities where no such complaint had been lodged with the Electoral
Commission. Indeed, if the Legislature had intended that for a person to
qualify to file an Election Petition, he or she needed to have first lodged a
complaint of election malpractices with the Electoral Commission, it would
30 have expressly stated so under Section 138(3) of the Local Government Act.”
Further,
“It is our finding therefore that the petitioner’s complaint regarding electoral
irregularities was properly before the High Court and the trial Judge erred in
finding that failure to report the alleged illegal practices to the Electoral
35 Commission before elections took place was fatal to the petition.”

7
 Counsel for the petitioner added that there is no requirement of the petitioner
under the Parliamentary Elections Act, 2005 as amended to have lodged a
complaint with the Electoral Commission in order for his or her petition to be
valid. That the 1st Respondent’s argument in respect of their preliminary issue
5 seems to suggest that the petitioner is barred from challenging her nomination
due to failure to lodge a complaint with the 2nd Respondent. That this
interpretation of the law is erroneous and the preliminary objection should be
overruled.
I have carefully considered the law, submissions and authorities as cited by the
10 parties in regard to the preliminary objection. The petitioner in the instant case
challenged the nomination of the 1st respondent on grounds that she was
registered twice in the Voters’ register and therefore her nomination was invalid.
That the 1st respondent also used a different name while being nominated as
opposed to what was in the voters’ register. It was the contention of the 1st and
15 2nd respondents that the petitioner having failed to make a complaint to the
Electoral Commission as provided under Section 15 of the Electoral Commission
Act waived her right and cannot challenge the same after the election.
It is my considered view that the Parliamentary Elections Act under which
Parliamentary Election petitions are lodged is not instructive on such matters. It is
20 trite law that where there is a law that relates specifically to a given area the
same takes precedence over the general application law. In the case the
Parliamentary Elections, the Parliamentary Elections Act takes precedence when
it comes to parliamentary election petitions over any other electoral laws.
It is true that the Electoral Commission has the mandate to entertain complaints
25 lodged with it in regard to any irregularities before or during polling. The law as
cited by the 1st and 2ndrespondent from my understanding does not state that one
must lodge a complaint about irregularities that occurred before or during
polling before coming to court after an election. There is no law in my opinion
that makes it mandatory for one to lodge a complaint in regard to an illegal
30 process that happened before or during polling before they can file a petition in
the High Court after elections have been conducted.
Secondly, the law as cited by the 1st and 2nd respondents points out the powers of
the Electoral Commission before an election is held and the way forward for any
party that is dissatisfied with the outcome of the decision of the Commission
35 when a complaint is lodged with it. The law therefore, only provides that a
complaint can be lodged at any time before or during the electoral process with

8
 the Electoral Commission, meaning the powers of the Electoral Commission to
handle complaints does not extend to after elections have been conducted
The law as cited above also does not indicate that it is mandatory to lodge a
complaint with the Electoral Commission if one discovers any anomaly before or
5 during polling even though they have the right to do so.
Failure to institute a complaint with the Electoral Commission about an illegality
before polling in my humble view does not bar one from lodging a petition with
the High Court after elections. Because that would mean that one who discovers
about an illegality/dispute after an election has been conducted cannot seek for
10 justice from the courts of law since making complaints is limited to before and
during polling to be handled by the Electoral Commission.
In the circumstances I concur with the submissions of the petitioner that the
authority of Akol Hellen Odeke v. Okedel Umar, (Supra) as relied on by the 1st
and 2nd respondents is distinguishable from the instant case, as the former was a
15 miscellaneous application brought before the High Court before elections could
be held and the High Court did not have the jurisdiction to entertain the matter
which is different from the instant case.
I find and hold that the High Court has the jurisdiction to entertain the issue of
nomination after elections have been conducted as is case in the instant matter as
20 discussed above. I accordingly overrule the preliminary objection by the 1st and
2nd respondents.
I will therefore, go ahead to consider the petition on its merits.
Resolution of issues:
Counsel for the petitioner opted to discuss issues 1 and 2 concurrently and the
25 rest separately. The 1st and 2nd respondents also took on the same approach and
this court has equally adopted the same format. The 3rd respondent only resolved
issues 2 and 4 which relate to it.
Issues 1 and 2:
1.Whether the nomination of the 1st respondent by the 2nd respondent as a
30 candidate for District Woman Member of Parliament Mbale District was valid
and lawful?
2. Whether the 1st respondent undertook the right procedure to register the
change of name with the 3rd respondent in accordance with the law?

9
 Counsel for the petitioner submitted that one of the requirements for one to
contest as a Member of Parliament is that the contestant should be a registered
voter according to Article 80(1)(b) of the Constitution of the Republic of Uganda,
1995 and Section 4(1)(b) of the Parliamentary Elections Act, 2005.
5 Counsel for the petitioner went on to submit that at the time of the nomination of
the 1st Respondent, she appeared on two voters’ registers under different names
namely “Wangisi Mukhaye Mariam Wangisi” on the voters’ register for Nasyera
Primary School A polling station and also appeared under two different names at
Mafutu Church polling station as “Mukhaye Miriam” and “Wangisi Mukhaye
10 Mariam Wangisi”.
That the 1st Respondent in her answer to the petition and supporting affidavit
denied ever contesting under the name “Wangisi Mukhaye Mariam Wangisi”
and that she had never used or voted under the said name at any polling station
or for any official position. That however, this was not true.
15 Counsel for the petitioner added that the 3rd Respondent’s official called Kagina
David deponed an affidavit in support of their answer to the petition and under
paragraph 7 confirmed that the 1st Respondent was issued with a National
identification card with the name “Wangisi Mukhaye Mariam Wangisi” and the
said identity card was attached as annexure “B” on the said affidavit. That the 1st
20 Respondent then approached the 3rd respondent to correct the National
Identification Card having rejected it on grounds of mistakes to wit; the
repetition of the name “Wangisi” and misspelling of the name “Miriam” which
was written as “Mariam.” However, the 1st Respondent did not apply for a
change of particulars or variation but went ahead to change her name without
25 following the proper procedure as captured under the law.
Counsel for the petitioner relied on the case of Kasule Robert Sebunya
v.Wakayima Musoke Nsereko & The Electoral Commission, Election Petition No.
004 of 2016, where court held that;
“It is important to emphasize that any adult person who has applied for issue
30 or re-issue of a national identification card or alien’s identification card or a
holder of such card, who may wish to change his or her name, must do so in
compliance with section 36(1) of the Registration of Persons Act 2015 and
regulations 4(1) (2) and (5) of SI No. 67 of 2015 and regulation 11 of SI No.
68 of 2015.”

10
 Counsel for the petitioner also noted that the position of the law was clear in
regard to the contents of public documents or parts thereof to be proved by
certified copies. However, that there was an exception where uncertified copies
could also be provided so long as there was evidence that the party requested
5 them from the appropriate body. (See: Kakooza John Baptist v. Electoral
Commission & Yiga Anthony, (Supreme Court) Election Petition Appeal
No.11/2007, at page 9).
Counsel for the petitioner further submitted that the petitioner in the instant
matter requested for certified voters’ registers of different polling stations and
10 other documents from the 2nd Respondent but to no avail. Subsequently, the
petitioner filed a notice to produce documents on the 18th August 2021 and
served it upon the 2nd Respondent. That eventually when the 2nd Respondent
availed the said voters’ registers to the petitioner and they were filed in this
Honorable Court on the 19th August 2021 attached on the additional affidavit of
15 the petitioner. However, the said affidavit and others were expunged in the
court’s ruling dated 19th August 2021. Thus, the petitioner was left with only
uncertified voters’ registers of Nasyera Primary School A polling station and
Mafutu Church attached as annexures “C1” and “C2” respectively on the
affidavit in support of the petition. Counsel for the petitioner implored this court
20 to admit the uncertified copies of the Declaration forms as notice was given to the
2nd respondent.
Counsel for the petitioner concluded that the 1st Respondent was therefore not
validly nominated or elected as a woman member of parliament for Mbale
District as she was not a registered voter as per the provisions of the law and she
25 adopted a wrong procedure while changing her name with the 3rd Respondent.
Counsel for the 1st respondent agreed with the position as to the qualifications of
a Member of parliament and submitted that the 1st respondent was a registered
voter under the name “Mukhaye Miriam” as evidenced by the Voters Register
attached to the affidavit of Ochama Ahmed and was therefore validly nominated.
30 That the 1st respondent has always used the name “Mukhaye Miriam” as
evidenced by her academic documents and Section 36 of the Registration of
Persons Act in the instant case is inapplicable.
Further, that the name “Wangisi Mukhaye Mariam Wangisi” was erroneously
assigned to the 1st respondent and the defect was corrected under Section
35 57(1)(d) of the Registration of Persons Act and in the case of Dunn v. Palermo,
522 S.W.2d 679 (Tenn. 1975) it was held that;

11
 “We hold that a person’s legal name is that name given at birth, or as
voluntarily changed by either spouse at the time of marriage, or as changed by
affirmative acts as provided under the Constitution and Laws of the State of
Tennessee. So long as person’s name remains constant and consistent, unless
5 and until changed in the prescribed manner, and absent any fraudulent or
legally impermissible intent, the State has no legitimate concern.”
Counsel for the 1st respondent added that the 1st respondent has always been
known as “Mukhaye Miriam” and the petitioner did not provide any proof that
she had ever changed her name to “Wangisi Mukhaye Mariam Wangisi”.(See:
10 Hashim Sulaiman v. Onega Robert, Civil Appeal No 01. of 2021 at page 17-20).
Further, counsel for the 1st respondent submitted that the instant case is
distinguishable from the authority of Otada Sam v. Taban Amin and Electoral
Commission, No. 93 of 2016, whereby in the instant case the 1st respondent’s
name corresponds to her academic documents, National Identity card, the voters;
15 register, and her nomination papers unlike the latter where there was a disparity
in names on the National Identity card, nomination papers and the academic
documents.
Counsel for the 1st respondent noted that it was a mistake by the 3rd respondent
that a National Identity card was issued in the name “Wangisi Mukhaye Mariam
20 Wangisi” and the 3rd respondent has the mandate to correct such mistakes under
Section 51(1) and (2) of the Registration of Persons Act. That in the instant case
the 1st respondent notified the 3rd respondent about the mistake and it was
accordingly corrected.
Counsel for the 2nd respondent on the other hand submitted that the allegations
25 by the Petitioner that the 1st Respondent was not a registered voter and therefore
not qualified to contest for the office of member of Parliament are false and
baseless. That this is because the 1st Respondent appeared before the Returning
Officer for nomination, possessed with the requisite academic documents. Upon
confirming that she met all the requisite qualifications of being a registered voter
30 and meeting the minimum academic qualifications, therefore legible, the
Returning Officer nominated and declared her as a duly nominated candidate for
the position of Member of Parliament, Mbale District, in accordance with the
law. (See: Section 4 of the Parliamentary Elections Act). That this was revealed by
the Affidavit evidence of the Returning Officer, Ms. Onyango Emily Onyas and
35 Mr. Ochama Ahmed, the Head of Voter Data Management employed by the 2nd
Respondent.

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 Counsel for the 2nd respondent added that the 1st respondent was a registered
voter under the name “Mukhaye Miriam” as per the affidavit of Ochama Ahmed.
That at nomination she presented all her academic qualifications with the same
name. That the 1st respondent is married to “Dr. Jonathan Wangisi” which fact
5 was disclosed in the affidavits of Namatovu Ruth, Buyera Moses and Musibiha Joy
Juliet and undisputed by the petitioner. That the 1st respondent according to her
Ordinary and Advanced Level Education Certificates and other subsequent
academic qualifications, she was and still is “Mukhaye Miriam” which name she
has never applied to change. She was only known as “Mukhaye Miriam
10 Wangisi” by virtue of being married to “Dr. Wangisi Jonathan”. That to deny the
1st Respondent from participating in the elections would have amounted to
failure on the part of the 2nd Respondent to execute its mandate.
Counsel for the 2nd respondent quoted Section 13 of the Parliamentary Elections
Act which provides for the factors upon which the nomination of a person duly
15 nominated can be invalidated. These include, if; the person’s nomination paper
was not signed and counter signed in accordance with Section 11(1) of the same
Act, the nomination fees referred to in Section 11(3) was not lodged with his or
her nomination paper, the person seeking nomination was not qualified for
election under Section 4, the person seeking nomination has been duly
20 nominated for election for another constituency for which the poll has not taken
place or the person has not complied with the provisions of Section 4.
Counsel for the 2nd respondent noted that the allegations made by the Petitioner
do not fit any of the above factors.
Counsel for the 2nd respondent further submitted that the law does not forbid
25 change of names. That change of name is part of culture especially for married
women whose maiden names in their academic papers may vary depending on
when they got married. He cited the Court of Appeal in the case of Hashim
Sulaiman v. Onega Robert, Election Petition Appeal, No. 001 of 2021, where it
was held that; failure to do a deed poll and subsequently have the register
30 amended would not change the identity of a person.
Counsel for the 3rd Respondent submitted that the 3rd respondent did not fault
any procedures in correcting the name “Wangisi Mukhaye Mariam Wangisi” to
“Mukhaye Miriam”. That the 3rd Respondent in paragraphs 7 and 8 owned up
that there was an error in the printing of the National Identification card issued
35 to the 1st Respondent. Thus undertook a procedure of internally correcting an

13
 error committed by them on an Identification Card in accordance with Sections
51 & 57 of the Registration of persons Act.
That the Petitioner wrongly alleged that the 3rd Respondent’s official called
Kagina David deponed an affidavit in support of their answer to the petition
5 confirming that the 1st Respondent was issued with identification card with the
name “Wangisi Mukhaye Mariam Wangisi” and that the said identity card was
attached as annexure “B” on the said affidavit”. That this was not true, as the 3rd
respondent did not issue such Identity card though attempted to.
That the 3rd Respondent did not change the name of the 1st Respondent and there
10 was no law or legal procedure that was breached by the 3rd Respondent in
correcting an error on its part. Thus, the internal procedure undertaken by the
3rd Respondent was an internal Correction and not change of name. The
procedure of internal rectification is different from that of change of names
reflected in the case Kasule Robert Sebunya v. Wakayima Musoke Nsereko & The
15 Electoral Commission, Election Petition No. 004 of 2016 and others relied upon
by the Petitioner. Hence, a change of name on a register can only be undertaken
by a name that is on a register. In the present case, the electoral register was
never amended, and the name in the Register of the 2nd Respondent was the same
consistent with the name on the 1st Respondent’s National Identification Card
20 issued by the 3rd Respondent.
Counsel for the 3rd respondent further submitted that in absence of a person
possessing a national Identification in the name of “Wangis Mukhaye Mariam
Wangisi”, the 3rd Respondent was right to issue a National Identification in the
name of “Mukhaye Miriam”. (See: Mutembuli Yusuf Vs Nagwomu & Another
25 Election Petition Appeal No. 43 of 2016).
Counsel for the 3rd respondent concluded that in the current case, even in
absence of a National Identification Card, there would be no doubt that the 1st
Respondent is “Mukhaye Miriam”, as her identity is backed by the Documentary
evidence.
30 I have carefully considered the submissions of the parties under this issue for
which am grateful.
In the instant petition the petitioner contended that the 1st respondent was not
validly nominated since she was not a registered voter which is one of the
requirements for anyone to contest as a Member of Parliament. I disagree with
35 this allegation with all due respect. It is very clear from the uncertified copies of

14
 the Voters’ registers attached to the petitioner’s affidavit which this court takes
cognizance of, that the 1st respondent was a registered voter at Mafutu church
polling station Bukhuma Parish, Bumbobi Sub-County in Bungokho Central
County, under registration No. 68168173 at page 5 out of 16 of the Voters’
5 Register. The 1st respondent is therefore a registered voter under the name
“Mukhaye Miriam.”
The 1st respondent also provided her academic qualifications to this court in
particular her ordinary level certificate and advanced level certificate which
were all issued in the name “Mukhaye Miriam.”
10 It was the evidence of the 2nd respondent that the 1st respondent was validly
nominated according to the law. That upon presenting her academic documents
the same were confirmed to be hers and all the requirements under the law for a
valid nomination were considered before the 1st respondent was nominated.
Therefore, the 1st respondent’s nomination was not invalid. The 1st respondent
15 was then duly registered as a voter with the name “Mukhaye Miriam” under
which she was also nominated.
In regard to the 1st respondent using the name “Mukhaye Miriam” to contest as
Member of Parliament as opposed to “Wangisi Mukhaye Mariam Wangisi” it
was the evidence of Ms. Amongin Emily Onyas that the 1st respondent merely
20 updated her voter particulars to suit her academic qualifications in accordance
with the law by dropping her husband’s name “Wangisi” adopted by virtue of
their marriage.
Counsel for the 1st respondent also submitted that the person’s legal name is that
which is given at birth and in this case it is “Mukhaye Miriam.”
25 It was the submission of the 2nd respondent that there is no law that forbids
change of name and thus, the 1st respondent adopted her husband’s name by
virtue of marriage. However, the 3rd respondent admitted to making an error
when issuing the 1st respondent with her first National Identity card but denied
existence of the same and yet a photocopy of the Identity card is on record.
30 The 1st respondent in my view made it known to the 3rd respondent that she
wished to make adjustments to her name since there was a mistake made by the
3rd respondent on her National Identity Card that was initially issued bearing the
name “Wangisi Mukhaye Mariam Wangisi”. The 1st respondent had initially
registered as “Wangisi Mukhaye Miriam” while applying for her National
35 Identity card however, the National Identity Card was printed with the name

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 “Wangisi Mukhaye Mariam Wangisi”, the 1st respondent then pursued
correcting the name on her National Identity Card to “Wangisi Mukhaye
Miriam” to eliminate the second “Wangisi” and correcting “Mariam” to
“Miriam” but then she eliminated the name “Wangisi” all together and
5 maintained only “Mukhaye Miriam” the name on her academic documents.
Upon informing the 3rd respondent about the anomaly on the National Identity
card, the 3rd respondent went ahead and corrected the mistake internally and the
1st respondent was issued another card with her correct name “Mukhaye
Miriam”.
10 The 3rd respondent submitted that the procedure as adopted in correcting the 1st
respondent’s name is an internal procedure provided for under the law as cited
earlier and not a change of name procedure as alleged by the petitioner.
It was not in contention that the 1st respondent always went by the name
“Mukhaye Miriam” before adding the name “Wangisi” which belongs to her
15 husband. All the petitioner concentrated on was the fact that the 1st respondent
was registered as a voter under the name “Wangisi Mukhaye Mariam Wangisi”
on the 2016 and 2020 Voters’ Registers which was clearly as mistake made by
the 3rd respondent who forwarded this information to the 2nd respondent.
The 1st respondent told court that she had never used the name “Wangisi
20 Mukhaye Mariam Wangisi” and the petitioner failed to prove to this court that
indeed the 1st respondent was and has always been called “Wangisi Mukhaye
Mariam Wangisi.” and chose to change her name to “Mukhaye Miriam” while
contesting for Member of Parliament.
In the case of Tinka v. Bigirwenkya & Another, Election Civil Appeal Petition, No.
25 7 of 2011, it was held that;
“…I would liken this to assuming a new name when one’s academic
certificates are all in that person’s former names. Assuming the new name
would not mean that the person who assumes the new name thereby
relinquishes all rights to the academic certificates acquired in the old names,
30 or that he/she has to go back to the various institutions to have all the
certificates changed to the new name.”
It is my considered view that it is not known how the 1st respondent acquired the
name “Wangisi” whether it was legally adopted through a deed poll or it was
only used by virtue of the fact that she was married and that was her husband’s
35 name as is the practice by most marrieds.

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 In the case of Ninsiima Grace v. Azairwe Dorothy Nshaija Kabaraitysa and
Electoral Commission, Election Petition Appeal No. 5 of 2016, the respondent had
sworn a statutory declaration explaining that the addition of one name had been
to add her father’s name and another being the adoption of her husband’s name
5 upon marriage.
It was held that; the addition of the latter did not amount to a change of name but
was rather an adoption of her husband’s name. similarly, the addition of her
father’s name was not a change of name but a simple addition. The evidence
adduced by the appellant was insufficient to satisfactorily discharge the burden
10 of proof which rested upon her to prove that the respondent was not the owner
of the academic documents she presented for nomination as a candidate.
The 1st respondent produced academic documents which indicated that she had
always been known by the name “Mukhaye Miriam” and this was corroborated
by the evidence of Buyera Moses a witness for the 2nd respondent who stated in
15 his affidavit evidence that the 1st respondent had always been known as
“Mukhaye Miriam” who sat and completed her Advanced Level Education in
1996 at Mbale Senior Secondary school where he was a head teacher. He
confirmed to court that he had always known the 1st respondent as “Mukhaye
Miriam” who was also known to him personally.
20 I accordingly, find and hold that the 1st respondent was validly nominated and
was a registered voter who had never changed her name. These issues are
therefore resolved in the negative.
ISSUE 3:
Whether the 1st Respondent committed any illegal practices/election offences
25 personally or through her agents with her knowledge, consent or approval?
Counsel for the petitioner submitted that it is trite law that proof of commission
of a single illegal practice or election offence by the winning candidate in a
parliamentary electoral contest is sufficient to void the election and the weight or
significance of the incident is irrelevant. (See: Kikulukunyu Faisal v. Muwanga
30 Kivumbi Election Petition Appeal No.44 of 2011).
Counsel for the petitioner added that the 1st Respondent personally or through
his agents with his knowledge and consent or approval committed the illegal
practice of participating in fundraisings or giving of donations during the
campaign period contrary to Section 68(7) of the Parliamentary Elections Act,

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 2005. That this happened in three separate incidents and the 1st respondent also
abetted the commission of the electoral offence of involvement of a public officer
in a political campaign when she involved her husband, Dr. Jonathan Wangisi
Massa, the District Health Officer in Mbale contrary to Section 83A (1) (a) and
5 (b) of the Parliamentary Elections Act, as amended.
Counsel for the petitioner contended that the petitioner had filed 11 affidavits on
the 28th May 2021 and three affidavits on the 19th August 2021 in support of her
petition. However, the ruling dated 19th August 2021 clearly disposed of the said
affidavit evidence from the court record supporting the allegations of the illegal
10 practices committed by the 1st Respondent and her agents. Thus, the petitioner is
constrained to resolve issue three.
Counsel for the 1st respondent on the other hand submitted that the petitioner
failed to prove that the 1st respondent committed any illegal practices whether
personally or through her agents with her knowledge, consent or approval
15 during the election period. That it is trite law that once evidence in an affidavit is
not rebutted, the facts therein are true and admitted. That the petitioner’s
allegations of illegal practices collapsed with the rejection of her affidavits in
support thereof.
Counsel for the 1st respondent cited the case of Suubi Kinyamatama Juliet v.
20 Sentongo Robinh Nakasirye and Another, Election Petition Appeal No. 92 of 2016
at page 15, the Court of Appeal held that; where a petition is not supported by
any evidence as required by law, the petition is fatally defective and as such there
is no petition in law before court. Thus, the 1st respondent’s evidence was
unchallenged whether by evidence in rejoinder or through examination.
25 Counsel for the 2nd respondent on the other hand submitted that it is now well
settled that there are three ingredients of bribery as an electoral offence and these
are that; a gift was given to a voter; the gift was given by a candidate or his agent;
and that it was given with the intention of inducing the person to vote or refrain
from voting.
30 Counsel for the 2nd respondent went on to submit that the offence of bribery
involves the giver and recipient. The recipient must be identified as not being
fictitious and not existing, the recipient must depose an affidavit confirming
receipt of a gift from the giver or through his agent. That the petitioner and his
other witnesses make blanket and casual statements referring to voters (without
35 attaching evidence of notability) and yet they do not mention any of them. The

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 petitioner bases her claims on speculations for instance under paragraphs 22 and
23 she uses the words ‘allegedly’, ‘purportedly’ donated by the 1st respondent.
That it is trite law that affidavits must be confined to matters that a deponent is
able to prove.
5 Counsel for the 2nd respondent quoted the case of Odo Tayebwa v. Nasser
Basajabalaba and Another, Election Appeal No. 13/2001, where it was stated that
it is incumbent upon the petitioner to prove or to produce cogent evidence to
prove this allegation and not to rely on the weakness of the respondent’s case.
Counsel for the 2nd respondent concluded that whereas the 2nd Respondent
10 denied knowledge of any acts of bribery allegedly committed by the 1st
Respondent, the Petitioner did not adduce any evidence or any witnesses to
depose Affidavits to prove the same.
I have carefully considered the submissions under this issue and indeed it is true
that the petitioner’s additional affidavits were expunged from the record by this
15 court because admitting the said affidavits would prejudice the respondents who
had already exhausted their right to reply to the petitioner’s additional affidavit
evidence. The said affidavits were filed when the filed after the respondents had
already filed their answers to the petition.
In the case of Muyanja Simon Lutaaya v. Kenneth Lubogo and Electoral
20 Commission, Election Petition Appeal No. 82 of 2016, it was observed that; the
trial judge was therefore correct to strike out affidavits which had been filed out
of time, without leave of court, and which would have been prejudicial to the
respondents who would have no opportunity to respond to those affidavits.
In the instant case the petitioner filing her affidavits out of time meant that the
25 petitioner chose to make additional evidence as an afterthought even when she
had all the time to prepare her case from 17th January 2021 when results were
gazetted. Why then did she file all her additional affidavits in support of the
petition months later from the date of the filing of the petition well knowing that
the respondents would not be in position to reply to the same since the
30 respondents had already made their answers to the petition within the 10 days
prescribed by law as opposed to the petitioner who had 30 days to file her
petition?
Counsel for the petitioner argued that they were unable to gather all the
petitioner’s evidence within the allotted 30 days, and that was why they filed the
35 additional affidavits on 28th May 2021 and others on the 19th of August 2021.

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 While the petition was filed on the 19th March 2021 for elections that were held
on 14th January 2021, results declared on the 15th January 2021 and gazetted on
the 17th January 2021.
Counsel for the petitioner in his submissions also stated that they were unable to
5 resolve the instant issue because the supporting additional affidavits of the
petitioner were expunged by this court. This in essence means that the petitioner
was unable to prove her claim against the petitioners for lack of evidence. This
Court however, categorically after its ruling gave the petitioner the liberty to
adduce oral evidence with leave of court if they so wished where the opposite
10 parties could cross examine the witnesses if there was need to. The petitioner did
not take advantage of the opportunity for reasons best known to her.
This court has no duty to help the petitioner bring evidence before it. It is the
duty of the petitioner to prosecute her case as diligently as possible. Blame cannot
now be indirectly put on court as counsel for the Petitioner seems to do in his
15 submissions for expunging the additional affidavits yet counsel for the petitioner
chose not exhaust all the available means through which the petitioner could
adduce her evidence in support of her petition. With all due respect an advocate
resigning in such a manner in regard to their client’s case is absurd. A client as is
the Petitioner in the instant case entrusted her case with her advocate. It is
20 therefore, an advocate’s duty to take care of the interests of his/her client and tell
him/her the exact laws and provisions of the particular case and what remedies
are available to their client. The advocate should not hurt the interests of his/her
client through his/her actions or omissions in any manner.
Section 58 of the Evidence Act provides that facts in a case, except the contents of
25 documents, may be proved by oral evidence. This evidence must be direct in that,
if it refers to a fact that could be seen, then the one who saw it, if it refers to a fact
that could be heard, then the one who heard it, if it refers to fact that could be
perceived and if it refers to an opinion or grounds of that opinion, then the one
who holds that opinion must be the one to testify.
30 In the case of Mugema Peter v. Mudiobole Abedi Nasser, Election Petition Appeal
No. 30/2021, it was stated that;
“However, unless it is by agreement of the concerned parties or by some
legislation, that evidence in a cause shall be by affidavits alone, a party may
supplement affidavit evidence by viva voce evidence in court. (See: Glossov v.
35 Heston & 1 Local Board, 47 LJ Ch. 536). Also, where court finds affidavit

20
 evidence to be unsatisfactory. It has jurisdiction to exclude the affidavits and
to direct the witnesses to be examined orally not withstanding any agreement
to the contrary. (See: Re: Whiteley, 1891, 1 Ch. 559. See: also Sarkar on
Evidence, 14th ED. P. 2188.)
5 I conclude, on the basis of Section 58 of the Evidence Act and on appreciating
the above legal authorities on the point, that evidence given to court on oath
viva voce, under the supervision and superintendence of a presiding judge, is
proper and valid evidence that the court must consider. It is up to the
presiding court to consider the said evidence together with the fact that the
10 affidavit evidence has been rejected or has been contradicted, and then decide
what value to put on such evidence.”
The petitioner decided not explore other available options to adduce her evidence
even after court’s guidance in line with the above law and authority as cited. This
court sadly finds this issue abandoned by the petitioner since the petitioner did
15 not adduce any evidence to support her claim against the respondents. It is
accordingly struck out.
Issue 4: What remedies are available to the parties?
Counsel for the 1st respondent submitted that the petitioner failed to prove her
case to the required standard therefore the petition should be dismissed for lack
20 of merit with costs.
Counsel for the 2nd respondent also submitted that the Petitioner miserably failed
to adduce any aorta of evidence to support any of the allegations contained in her
Petition and thus, this court should dismiss this Petition with costs to the
respondents with a certificate to two counsel.
25 Counsel for the 3rd respondent in regard to this issue submitted that it is trite law
that the burden of proof in election petitions lies upon the petitioner and Section
61 of the Parliamentary Elections Act as amended clearly states that court may
only set aside an election upon any of the grounds set out in the section being
proven to the satisfaction of court. That the Petitioner in the instant case did not
30 prove any connivance on the part of the 3rd Respondent in rectification of the
name of the 1st Respondent. That the Actions of the 3rd Respondent in
Rectification of the names of the 1st Respondent did not amount to any
breaches/violations under Section 61 of the Parliamentary Elections Act. Nor did
it change or affect the electoral Register which was used in the concluded
35 Elections in question.

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 That the duty to maintain a voters’ Register was with the 2nd Respondent and not
the 3rd respondent.
It is this court’s finding that the petitioner had the burden to prove her
allegations as against the respondents but did not prove her case to the
5 satisfaction of this court.

This petition is accordingly dismissed for lack of merit with costs to the
respondents.
Right of appeal explained.
10 ………………………..….
OYUKO ANTHONY OJOK
JUDGE
7/9/2021

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