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Nyakecho and Another v Ekanya (Election Petition Appeals No. 28 and No. 30 of 2016)

Court of Appeal · [2017] UGCA 159 · 2017 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated election petition appeals from a High Court decision annulling a parliamentary election and ordering a fresh poll
Decision
Appeals allowed; High Court decision annulling the election set aside and the 1st appellant restored as validly elected Member of Parliament for Tororo North County

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Holding

The Court of Appeal allowed the consolidated appeals, holding that the Returning Officer was justified in excluding votes from two polling stations whose ballot boxes were delivered unsealed and whose Declaration of Results Forms had not been signed at the polling station as mandatorily required. Signing of Declaration of Results Forms at the polling station before announcement of results is a mandatory prerequisite, not a formality, and the contradictory, unreliable Forms produced by the respondent could not establish results. The respondent failed to prove that the non-compliance substantially affected the election result. The 1st appellant's election was restored, with each party bearing its own costs.

Facts

The 1st appellant and the respondent contested the 2016 parliamentary election for Tororo North County, conducted by the Electoral Commission. Based on results from 59 of 61 polling stations, the 1st appellant obtained 8,911 votes against the respondent's 8,822, winning by 89 votes. Results from Mission of Hope Church and Pagoya Primary School polling stations were excluded. At both stations, the Presiding Officers, on instructions from senior Commission officials, halted and never completed the signing of Declaration of Results Forms, and ballot boxes were delivered to the Sub County collection centre unsealed, without sealed result envelopes or Report Books. The Sub County Supervisor rejected the unsealed boxes and reported the matter to police for investigation. A respondent's agent improperly accompanied the boxes on the Commission vehicle. The respondent produced two contradictory sets of Declaration of Results Forms for the stations. The High Court annulled the election and ordered a re-run, prompting the appeals.

Issues

  1. Whether the cancellation of the results of Mission of Hope Church and Pagoya Primary School polling stations by the Electoral Commission was justified.
  2. Whether the trial court wrongly concluded that the 1st appellant was not validly elected.
  3. Whether the cancellation of the results from the two polling stations affected the results of the election in a substantial manner.
  4. Whether the burden of proof lay on the 1st appellant to prove the results were tampered with and never reached the tally centre.
  5. Whether the Declaration of Results Forms adduced at the trial were unreliable.
  6. Whether the costs awarded by the trial judge were justified.

Orders

  • The judgment and decree of the lower Court is hereby set aside.
  • The 1st appellant is the validly elected Member of Parliament representing Tororo North County.
  • The parties hereto shall bear their own costs of the appeal and of the Court below.

Key headnotes

Electoral Law — Declaration of Results Forms — Mandatory signing at polling station before announcement
Signing of the Declaration of Results Forms by the Presiding Officer and candidates' agents at the polling station before the announcement of results is a mandatory prerequisite under the Parliamentary Elections Act, not a mere formality, and forms whose signing was never completed cannot be the basis for determining votes cast.
Electoral Law — Exclusion of votes — Justification for Returning Officer rejecting unsealed ballot boxes
A Returning Officer is justified in excluding from the tally votes from polling stations whose ballot boxes were delivered unsealed, without sealed result envelopes or Report Books, and which were under police investigation, where using them would compromise the integrity of the electoral process.
Electoral Law — Non-compliance — Substantial effect test
An election conducted substantially in accordance with electoral law is not vitiated by a breach or mistake unless that breach affected the result; a petitioner alleging non-compliance must prove, to the satisfaction of the court on a balance of probabilities, that the non-compliance substantially affected the outcome.
Electoral Law — Burden and standard of proof in parliamentary election petitions
In a parliamentary election petition the burden of proof lies on the petitioner, and proof of non-compliance with electoral laws 'to the satisfaction of the court' under section 61(1) of the Parliamentary Elections Act is achieved on a balance of probabilities under section 61(3), the two provisions being read together.
Evidence — First appellate court — Re-evaluation of affidavit and viva voce evidence
A first appellate court is duty bound to re-appraise the evidence afresh; while it will defer to the trial court's findings on the demeanour of witnesses who testified orally, it has equal advantage with the trial court in assessing affidavit evidence where there was no cross-examination.
Civil Procedure — Costs — Discretion to deny costs to a successful party
Although costs ordinarily follow the event, a successful party may be deprived of costs where its own conduct, prior to or during the suit, led to the litigation which might otherwise have been averted.

Legislation cited (11)

  • Parliamentary Elections Act 2005 s.47(5)
  • Parliamentary Elections Act 2005 s.47(6)
  • Parliamentary Elections Act 2005 s.47(7)(a)
  • Parliamentary Elections Act 2005 s.50(1)
  • Parliamentary Elections Act 2005 s.50(4)
  • Parliamentary Elections Act 2005 s.52(1)
  • Parliamentary Elections Act 2005 s.53
  • Parliamentary Elections Act 2005 s.53(3)
  • Parliamentary Elections Act 2005 s.53(4)
  • Parliamentary Elections Act 2005 s.61(1)
  • Parliamentary Elections Act 2005 s.61(3)

Cases cited (11)

  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Parliamentary Election Petition Appeal No. 18 of 2007)
  • Arumadri John Drazu v Etuka Isaac and Another (Election Petition Appeal No. 37 of 2016)
  • Morgan v Simpson [1974] 3 All ER 722
  • Amama Mbabazi v Yoweri Museveni and Another (Presidential Election Petition No. 1 of 2016)
  • Rehema Muhindo v Winfred Kiiza and Another (Election Petition Appeal No. 29 of 2011)
  • Fredrick Mbagadhi v Frank Nabwiso (Election Petition Appeal No. 14 and No. 16 of 2011)
  • Kakooza John Baptist v The Electoral Commission and Anthony Yiga (Election Petition Appeal No. 11 of 2007)
  • Paul Mwiru v Hon. Igeme Nathan Nabeta Samson and 2 Others (Election Petition Appeal No. 6 of 2011)
  • Kiska Ltd v De Angelis [1969] EA 6
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.