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Nsegumire Semata Kibedi v Returning Officer & 2 Ors (Election Appeal No. 71 of 2016)

Court of Appeal · [2017] UGCA 30 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court dismissal of an election petition challenging local council election results
Decision
Appeal dismissed; election of the 3rd respondent as Chairperson Kampala Central Division upheld

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Holding

The Court of Appeal dismissed the appeal, holding that certification of a Declaration of Results Form does not immunise it from judicial scrutiny where fraud or forgery is alleged; the presumption of genuineness under the Evidence Act is rebuttable. The 3rd respondent successfully rebutted the genuineness of all 11 disputed DR Forms through the Returning Officer, polling agents and a handwriting expert, so the trial Judge was correct to disallow them (and the Court disallowed three further forms the trial Judge had saved). The appellant also failed to prove the electoral offence of defamation, as no swayed voters testified and the only evidence came from partisan supporters. The irregularities did not substantially affect the result under s.139 of the Local Governments Act.

Facts

The appellant and the 3rd respondent contested the position of Chairperson Kampala Central Division in the local council elections held on 24 March 2016. The 1st respondent (Returning Officer) declared the 3rd respondent the winner with 13,717 votes against the appellant's 10,153. The appellant petitioned the High Court, relying on Declaration of Results Forms certified by the Secretary to the Electoral Commission, alleging he had actually won and that the 3rd respondent had committed defamation by calling him a thief during campaigns. The 3rd respondent disputed 11 of the 110 DR Forms as fraudulent, supporting his challenge with affidavits from his polling agents, evidence of the Returning Officer relying on the tally sheet, and a handwriting expert who found forged signatures. The trial Judge admitted the certified DR Forms but disallowed 8 of the 11 disputed forms as unreliable, saving 3, and dismissed the petition. None of the appellant's agents swore affidavits supporting his allegations, and no allegedly swayed voters testified.

Issues

  1. Whether the trial Judge rightly assailed or interdicted the 11 certified Declaration of Results Forms out of the 110 DR Forms produced by the Electoral Commission.
  2. Whether the trial Judge rightly upheld the 3rd respondent's election as LC III Chairperson Kampala Central.
  3. Whether the trial Judge erred in holding that the appellant had not proved the electoral offence of defamation against the 3rd respondent.
  4. What reliefs are available to the parties.

Orders

  • Appeal dismissed.
  • All 11 disputed DR Forms presented by the appellant from the Electoral Commission disallowed.
  • The 3rd respondent, Serunjogi Charles Musoke, declared the duly elected Chairperson Kampala Central Division.
  • Costs of the appeal and the court below awarded to the 3rd respondent against the appellant.
  • No costs awarded to the 1st and 2nd respondents.

Key headnotes

Public Documents — Certified Declaration of Results Forms — Rebuttable Presumption of Genuineness
Certification of a public document such as a Declaration of Results Form does not immunise it from judicial scrutiny; the presumption of genuineness under section 78 of the Evidence Act is rebuttable, and a court may investigate the authenticity of a certified document where fraud or forgery is alleged.
Election Materials — Custody and Certification — Returning Officer as Lawful Custodian
Under section 52 of the Parliamentary Elections Act (applied via section 172 of the Local Governments Act) the Returning Officer is the lawful custodian of election records; certification of Declaration of Results Forms should be carried out by the Returning Officer, and forms certified by another officer not in lawful possession of the records may be disregarded.
Offence of Defamation — Section 123(3) Local Governments Act — Proof Requirements
To prove the electoral offence of defamation under section 123(3) of the Local Governments Act, the petitioner must show not merely that defamatory words were uttered but that voters were thereby swayed; allegations supported only by partisan supporters, without testimony from affected voters, do not satisfy the court.
Setting Aside Elections — Section 139 Local Governments Act — Substantial Effect Test
An election will only be set aside under section 139 of the Local Governments Act where non-compliance or irregularities are proved, to the satisfaction of the court on a balance of probabilities, to have affected the result of the election in a substantial manner.
Burden and Standard of Proof — Election Petitions — Proof to the Satisfaction of the Court
The standard of proof in an election petition is proof to the satisfaction of the court, which is higher than the ordinary civil standard but lower than proof beyond reasonable doubt, with the degree of proof depending on the gravity of the matter alleged.

Legislation cited (12)

  • Local Governments Act Cap.243 s.123(3)
  • Local Governments Act Cap.243 s.123(4)
  • Local Governments Act Cap.243 s.136(1)
  • Local Governments Act Cap.243 s.139
  • Local Governments Act Cap.243 s.172
  • Parliamentary Elections Act s.52
  • Evidence Act s.73(a)(ii)
  • Evidence Act s.75
  • Evidence Act s.76
  • Evidence Act s.78(1)
  • Presidential Elections Act s.58(7)
  • Judicature (Court of Appeal Rules) Directions Rule 30(1)

Cases cited (13)

  • Kakooza John Baptist v Electoral Commission and Another (Election Petition Appeal No. 11 of 2007)
  • Anna Dravida Munnetra Kazhagam vs. Chief Election Commissioner, Case No. 4(a) (CC 2824 and 2825 of 2001)
  • Kwanza Estate vs. Dubai Bank Ltd of Kenya Limited, [2015] eKLR
  • Asira vs. Republic, [1986] KLR 227
  • Makutla International Limited vs. His Eminence Cardinal Wamatla, [1982] HCB 58
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Besigye Kiiza v Museveni Yoweri Kaguta and the Electoral Commission (Election Petition No. 1 of 2001)
  • Bater v Bater (1950) 2 All ER 456
  • Mbowe v Elinfoo (1967) EA 240
  • Blyth v Blyth (1966) AC 643
  • Fred Badda v Muyanda Mutebi (Election Appeal No. 25 of 2006)
  • Ocheing Sarah Opendi and Electoral Commission v Ochwo Nyakecho Keziah (Election Petition Appeal No. 39 of 2011)
  • Ngoma Ngime v Electoral Commission and Winnie Byanyima (Election Petition Appeal No. 11 of 2002)
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.