The High Court in Mukono has struck out an affidavit filed by Mukono County North MP Abdallah Kiwanuka in response to affidavits filed by petitioner Ronald Kibuule’s witnesses, ruling that it had been filed without a legal basis.
However, Justice Godfrey Himbaza declined to invalidate Kiwanuka’s answer to the election petition, ruling that defects in his main affidavit could be severed without affecting the answer itself.
The ruling arose from preliminary objections raised by Kibuule’s lawyers as the court prepared to hear his petition challenging Kiwanuka’s election as Member of Parliament for Mukono County North Constituency.
Kibuule, a former State Minister for Water, filed the petition challenging the results of the January 15, 2026 parliamentary elections in which Kiwanuka was declared the winner on January 17.
Kibuule alleged that the election was marred by illegal practices, electoral offences and other irregularities, including alleged voter bribery, defacement of campaign posters, undue influence and defamatory statements against him.
He also alleged that the Electoral Commission conducted voting at places that had not been created or gazetted as polling stations, disenfranchising some voters, while results were allegedly falsified at some polling stations.
Kibuule further alleged that some polling stations were closed before the statutory closing time.
He asked the court to declare the election invalid, set aside Kiwanuka’s election and order a fresh election in Mukono County North.
Lawyers challenge Kiwanuka’s affidavits
When the petition came before Justice Himbaza on September 21, 2026, Kibuule’s lawyers, Frank Kandiho and Ivan Bwowe, raised two preliminary objections concerning affidavits filed by Kiwanuka.
The first objection challenged Kiwanuka’s affidavit filed in support of his answer to the petition.
Kandiho argued that under Rule 8(3) of the Parliamentary Elections (Election Petitions) Rules, a respondent who chooses to oppose an election petition must accompany the answer with an affidavit setting out the facts relied upon in support of that answer.
According to the lawyer, Kiwanuka’s affidavit did not set out facts supporting his answer but instead largely responded to Kibuule’s affidavit in support of the petition.
Kanduho argued that an affidavit in support of an answer to a petition is distinct from an affidavit in reply to the petitioner’s evidence.
He relied on previous decisions, including Kayanja Vincent De Paul v Fabrice Rulinda & Another, to argue that an affidavit that fails to comply with the requirements of Rule 8(3) is incompetent.
Bwowe supported the objection, arguing that a defective affidavit could affect the validity of the answer it purported to support.
The lawyers also challenged a second affidavit filed by Kiwanuka in response to affidavits sworn by Kibuule’s witnesses Sadiq Ssenyonjo Wabbi, Musasizi Hassan, Tumwesigye Rajab, Arafat Matovu and Tebuseeke Mulushid.
They argued that the election petition rules did not give Kiwanuka the right to file an affidavit replying to affidavits filed by the petitioner’s witnesses.
Kiwanuka defends filings
Kiwanuka’s lawyer, Chrisostom Katumba, disagreed with the objections.
He argued that although Rule 8 requires an answer to be accompanied by an affidavit setting out the facts relied upon, the rules do not prescribe a specific format for such an affidavit.
Katumba maintained that Kiwanuka had properly filed an answer and an accompanying affidavit which responded to the allegations contained in Kibuule’s petition.
He argued that what mattered was the substance of the response and that technical or titling irregularities should not invalidate documents that otherwise served their intended purpose.
Katumba also relied on the Kayanja Vincent De Paul decision, arguing that an election petition answer is similar to a written statement of defence and that the rules do not prescribe a particular format for the accompanying affidavit.
He told court that the affidavit contained facts supporting Kiwanuka’s position and responded to the allegations made by Kibuule.
On the second affidavit, Katumba explained that it had been filed after Kibuule introduced additional affidavits from his witnesses.
He said the affidavits had not been served on Kiwanuka and that the defence only became aware of them after they appeared on ECCMIS.
Katumba said the defence therefore filed the additional affidavit in response to those allegations.
He asked the court, if it found defects in Kiwanuka’s documents, to allow him to give oral evidence and file witness statements rather than shutting him out of the proceedings.
Judge finds error but saves Kiwanuka’s answer
In his ruling, Justice Himbaza agreed with Kibuule’s lawyers that Kiwanuka’s main affidavit had not been properly framed.
The judge found that although the document was titled an “affidavit in support of the answer to the petition”, its contents largely took the form of a reply to Kibuule’s petition and supporting affidavit.
Justice Himbaza noted that the affidavit expressly stated that Kiwanuka had read Kibuule’s petition and accompanying affidavit and was responding to what he considered material falsehoods.
The judge, however, found that the affidavit also contained facts supporting Kiwanuka’s case, particularly in paragraphs 9 and 15.
He therefore declined to strike out the entire affidavit.
Justice Himbaza applied what is known as the doctrine of severance, under which defective portions of an affidavit can be removed while preserving the parts that remain legally usable.
The judge said Kiwanuka had erred by presenting the facts in the form of a reply to Kibuule’s affidavit rather than simply setting them out as facts supporting his answer.
However, he ruled that the error did not invalidate Kiwanuka’s answer to the petition.
The court consequently ordered that all portions of the affidavit, except paragraphs 9 and 15 containing facts supporting Kiwanuka’s answer, be expunged.
Kiwanuka was nevertheless given leave to provide oral testimony on the contents of the expunged portions and any other facts supporting his defence.
Second affidavit struck out
Justice Himbaza took a different position on Kiwanuka’s second affidavit, which responded to the affidavits of Kibuule’s witnesses.
The judge agreed with Kibuule’s lawyers that there was no legal provision allowing the second respondent to file an affidavit in reply to affidavits filed by the petitioner’s witnesses.
Instead, the judge said Kiwanuka would have an opportunity to cross-examine those witnesses during the hearing of the petition.
The affidavit was therefore struck out for having been filed without a legal basis.
Justice Himbaza also rejected Kiwanuka’s reliance on Rule 26 of the Parliamentary Elections Rules, which provides that proceedings should not be defeated by formal objections or mishandling of notices or documents sent by the Registrar.
The judge agreed with Kibuule’s lawyers that the provision had been cited out of context and did not apply to the circumstances of the case.
Petition to proceed
Despite upholding both preliminary objections, the court did not terminate Kiwanuka’s defence.
Justice Himbaza ordered that Kiwanuka’s answer to the petition remain intact and that the petition proceed to hearing on its merits.
The court made no order as to costs.
Kibuule had contested the January 15 election alongside Kiwanuka and other candidates, including Stephen Ssemusu, Moses Lukubira Bakubi, Isaac Drasi and Kenneth Nsubuga Ssebagayunga.
ENDS.
