Wakilii

Achieng Sarah Opendi and Another v Ochwo Nyakecho Keziah (Election Petition Appeal No. 39 of 2011)

Court of Appeal · [2012] UGCA 22 · 2012 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court decision nullifying a parliamentary election
Decision
Appeal allowed; petition dismissed and the 1st appellant retains the parliamentary seat

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal allowed the appeal and set aside the High Court's nullification of the Tororo District Woman MP election. The court held that the bribery allegation against the appellant's agent was not proved on a balance of probabilities, as the sole witness's evidence was inconsistent, uncorroborated and untrustworthy, and there was no evidence the appellant knew of or approved it. On disenfranchisement, although results from 17 polling stations were wrongly excluded due to Electoral Commission non-compliance, the petitioner failed to prove the disenfranchisement affected the result substantially; the 7,679-vote winning margin exceeded the registered voters in the excluded stations. The petition was dismissed.

Facts

The 1st appellant and eight others, including the respondent, contested for the seat of Woman Member of Parliament for Tororo District in the election held on 18 February 2011, organised by the Electoral Commission. The 1st appellant was declared winner with 41,165 votes against the respondent's 33,486, a winning margin of 7,679 votes. Results from 17 polling stations were excluded: two were cancelled (one where cast votes exceeded registered voters, another where results for only two candidates were received), and 15 were excluded because their envelopes contained no Declaration of Results Forms. The total registered voters in the 15 excluded stations was 7,305. The respondent alleged bribery of a voter, Agnes Ochwo, by the appellant's agent Onyango Obbo, and that disenfranchisement affected the result. The High Court at Tororo nullified the election and ordered a fresh one. The appellants appealed.

Issues

  1. Whether the bribery allegations proved against Onyango Obbo, an agent of the appellant, were made with the appellant's knowledge, consent and approval.
  2. Whether there was disenfranchisement of voters, and if so, whether such disenfranchisement affected the results in a substantial manner.
  3. Whether the appellant was entitled to costs in the court below.
  4. Whether the appellant was entitled to any remedy.

Orders

  • Appeal allowed.
  • Judgment of the lower court and the orders made therefrom set aside.
  • Order substituted dismissing the petition.
  • Costs of the 1st appellant to be borne 2/3 by the 2nd appellant (Electoral Commission) and 1/3 by the respondent, here and below.
  • The 1st appellant retains the seat of Woman Member of Parliament for Tororo District.

Key headnotes

Electoral Law — Election Bribery — Ingredients and Proof
To prove the electoral offence of bribery there must be cogent evidence that a gift was given to a voter, that the gift was given by a candidate or his agent, and that it was given with the intention of inducing the person to vote; allegations resting on inconsistent, uncorroborated testimony from a partisan or untrustworthy witness do not establish the offence.
Electoral Law — Bribery by Agent — Candidate's Knowledge, Consent or Approval
Where bribery by an agent is not proved, it is unnecessary to determine whether the bribery was carried out with the candidate's knowledge, consent or approval; in any event, a candidate cannot be held responsible for an agent's bribery absent evidence that she authorised, consented to or was aware of it.
Electoral Law — Disenfranchisement — Substantial Effect on Result
Non-compliance with electoral law, including failure to include results from polling stations lacking Declaration of Results Forms, will not invalidate an election unless the petitioner proves on a balance of probabilities that the non-compliance affected the result in a substantial manner; mere proof of irregularity is insufficient.
Electoral Law — Assessing Substantial Effect — Treatment of Excluded Votes
A trial court errs by simply aggregating the total registered voters of excluded polling stations to the petitioner's tally, since this speculates as to who voted for whom and ignores that exclusion affects all candidates equally; the petitioner must adduce evidence of the actual votes she obtained from the excluded stations to show the winning margin would be overturned.
Evidence — Election Petitions — Burden and Standard of Proof
In a parliamentary election petition the burden lies on the petitioner to prove the alleged irregularities and that they affected the result substantially; the standard of proof is on a balance of probabilities but slightly higher, requiring cogent, strong and credible evidence.

Legislation cited (14)

  • Parliamentary Elections Act s.34(3)
  • Parliamentary Elections Act s.50(1)(c)
  • Parliamentary Elections Act s.50(1)(d)
  • Parliamentary Elections Act s.52
  • Parliamentary Elections Act s.53
  • Parliamentary Elections Act s.53(3)
  • Parliamentary Elections Act s.61(1)(a)
  • Parliamentary Elections Act s.61(3)
  • Parliamentary Elections Act s.68
  • Parliamentary Elections Act s.68(1)
  • Parliamentary Elections Act s.68(2)
  • Electoral Commission Act s.12(1)(e)
  • Constitution of Uganda 1995 Article 126(2)(e)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 30

Cases cited (14)

  • Besigye Kizza v Museveni Kaguta and Another (Election Petition No. 1 of 2001)
  • Amama Mbabazi and Another v Musinguzi Garuga James (Election Petition Appeal No. 12 of 2002)
  • Edward Byaruhanga Katumba v Electoral Commission and Siraje Nkugwa Kizito (Election Petition Appeal No. 17 of 2002)
  • Mukasa Anthony Harris v Bayiga Michael Phillip Lulume (Civil Appeal No. 18 of 2007)
  • Kaija William v Byamukama K. James (Election Petition Appeal No. 12 of 2006)
  • Oboth Markson Jacob v Otiam Otaala (Election Petition Appeal No. 38 of 2011)
  • Nasensio Begumisa and 3 Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Matsiko Winfred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
  • Blyth v Blyth [1966] AC 643
  • Besigye Kiiza v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2006)
  • Paul Mwiru v Igeme Nabeta and Others (Election Petition Appeal No. 6 of 2011)
  • Gunn v Sharpe (1974) 1 QB 808
  • Kakooza John Baptist v Electoral Commission and Another (Election Petition Appeal No. 11 of 2007)
  • Hackney & Morgan V. Simpson
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.