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Election Appeal: Lydia Wanyoto seeks retrial

Lydia Wanyoto. File Photo

Kampala, Uganda | THE INDEPENDENT | Lydia Wanyoto, the loser of the Mbale City Woman parliamentary elections has asked the Court of Appeal for a retrial of her petition against her rival Connie Nakayenze Galiwango. Wanyoto garnered 25,276 votes against 40,729 votes garnered by Nakayenze.

Dissatisfied with the results, Wanyoto who ran on the ruling National Resistance Movement-NRM party ticket, petitioned the High Court in Mbale challenging Nakayenze’s victory citing vote-rigging and intimidation of voters among others.

However, Justice Andrew Bashaija dismissed the petition saying Wanyoto had failed to substantiate her claims. This prompted Wanyoto to appeal the decision in the Court of Appeal. On Thursday, the parties appeared before a panel of justices namely Elizabeth Musoke, Christopher Madrama and Monica Mugenyi for the hearing of the appeal.

Wanyoto through her lawyers led by Peter Allan Musoke asked the appellant court to grant them a retrial on grounds that the trial judge had determined the case based on evidence outside the court record. Musoke told the court that the trial judge went ahead and used the testimony of Dr Hassan Galiwango who was being cross-examined through video conferencing, but the line broke. He argued that the court used evidence that couldn’t be found on the court record.

Musoke told the panel that they wrote to the court to get the record of the case, but on top of the delay to avail them with the record, some of the evidence used to determine the case were missing. To him, this means that the judge determined a case based on evidence, not on-court record.

The request for a retrial is based on ground 15 of the appeal, a group that was introduced and adopted today. The ground was admitted because the appellant argued that they were delayed by the court when they asked for the judgement and court record prompting them to work under pressure.

Wanyoto filed her Appeal days beyond the mandatory seven days after filing a written notice of appeal. But her lawyer Musoke told the court that they were delayed by the trial court, which didn’t respond in time to their request to have a copy of the judgement and another record of the Court regarding the case.

He says that although the judgement was delivered on September 30th, 2021, they only got a copy of the judgement on October 8th, 2021 and the Court record on October 25th, 2021. They filed the Memorandum of Appeal on October 28th, 2021.

Asked by Justice Madrama why he didn’t file the Memorandum of Appeal after getting the judgement on October 8th, 2021, Musoke said that he needed a copy of the court record to draft the appeal. Rules governing Parliamentary Elections appeals provide that an “appellant shall lodge with the registrar the record of appeal within thirty days after the filing by him or her of the memorandum of the appeal”.

The Electoral Commission lawyer Jackline Natukunda objected to the statement that the judgement was not availed on time, saying that the same was ready by October 1st 2021. Musoke objected to her submission, saying that when they made a request for the ruling, they were told that the trial judge had instructed the court officials to wait and distribute a validated copy of the judgement.

He added that while they made their communication formally in writing, they had to walk to court to get responses. After the court session, Wanyoto told journalists that the fight for her stolen victory was still on until the court of Appeal makes its decision.

The matter will be determined on a date to be communicated by the court.

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