Wakilii

Chebrot Stephen Chemoiko v Soyekwo Kenneth and the Electoral Commission (Election Petition Appeal No.56 of 2016)

Court of Appeal · [2017] UGCA 14 · 2017 Appeal Dismissed (Partly Allowed on Evidence) AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court dismissal of a parliamentary election petition
Decision
Appeal dismissed; the election of the 1st respondent stands. Appellant succeeded only in part on the evidentiary grounds 1 and 5.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal partly allowed the appeal on evidentiary grounds, holding that the trial Judge erred in treating the appellant's affidavits filed with the Petition as hearsay where the sources of information were disclosed and their affidavits filed. However, Police statements relied upon merely to show that an incident was reported (not for truth) were admissible. On the merits, the Court found that disenfranchisement was not established because the Returning Officer lawfully cancelled materially altered Chebonet results, and although 141 ballot papers went missing, the appellant failed to prove the non-compliance affected the result in a substantial manner. Allegations of fundraising and bribery were not proved to the required standard. The appeal as a whole failed.

Outcome

Appeal dismissed; the election of the 1st respondent stands. Appellant succeeded only in part on the evidentiary grounds 1 and 5.

Facts

On 18 February 2016 the Electoral Commission conducted parliamentary elections for Tingey County Constituency, Kapchorwa District. The 1st respondent was declared the winner with 8,469 votes against the appellant's 8,307, a margin of 161 votes. The appellant petitioned the High Court at Mbale alleging gross irregularities, disenfranchisement of voters at Chebonet Polling Station, failure to control ballot papers, and commission of illegal practices including fundraising/donations at Kapkwata PCM Church and bribery of voters. Results from Chebonet Polling Station were cancelled by the Returning Officer following material alterations on Declaration of Results Forms and failure to find alternative results in the ballot box. A recount of Chesabit Polling Station revealed 141 unused ballot papers missing from the ballot box. The High Court dismissed the petition. On appeal, the Court re-evaluated the affidavit evidence, the admissibility of Police statements, the cancellation of Chebonet results, the missing ballot papers, and the fundraising and bribery allegations.

Issues

  1. Whether the trial Judge wrongly disregarded the appellant's evidence as hearsay and as having been deponed by strangers to the Petition.
  2. Whether the trial Judge wrongly relied on inadmissible Police statements tendered by the 1st respondent.
  3. Whether voters of Chebonet Polling Station were disenfranchised and whether the 2nd respondent failed to control the use of ballot papers.
  4. Whether any non-compliance with electoral laws affected the result of the election in a substantial manner.
  5. Whether the 1st respondent committed illegal practices of fundraising/donations and bribery of voters.

Orders

  • The appeal as a whole fails; the appellant succeeds in part on grounds 1 and 5.
  • The appellant is to recover 1/3 of the costs of the appeal from the 2nd respondent.
  • The 1st respondent is to recover 2/3 of the costs of appeal, of which 1/3 is to be recovered from the appellant and 1/3 from the 2nd respondent.
  • The 1st respondent shall recover 2/3 of the costs in the High Court jointly and severally from both the appellant and the 2nd respondent.

Rules and key headnotes

Affidavit Evidence — Disclosure of Source of Information — When Affidavit Filed With Petition Is Not Hearsay
Where a petitioner discloses that his sources of information are his agents and supporters and those persons themselves swear affidavits filed together with the Petition, the evidence is not hearsay; once admitted on record, such affidavits cannot later be discarded as hearsay and only their veracity may be challenged by cross-examination.
Election Petitions — Affidavits in Rejoinder — Competence of Deponents and Permissible Scope
A person who did not swear an affidavit in support of a petition may swear an affidavit in rejoinder provided it controverts new matters raised in the respondent's reply; rejoinder affidavits that merely repeat earlier evidence or introduce no response to specific averments do not qualify as proper rejoinders.
Admissibility — Out-of-Court Statements — Statements Relevant to Fact of Reporting Not Their Truth
Certified copies of Police statements relied upon only to prove that an incident was reported to Police, rather than to prove the truth of their contents, are admissible and relevant; it is not mandatory that the officer who certified the copies be called as a witness.
Disenfranchisement — Cancellation of Polling Station Results — Powers of Returning Officer
Section 12(1)(e) of the Electoral Commission Act empowers the Electoral Commission, through the Returning Officer, to cancel polling station results where Declaration of Results Forms are materially altered and no alternative results can be obtained from the ballot box, in order to ensure conditions of freedom and fairness.
Non-Compliance — Substantial Effect Test — Burden of Proof
An election will not be set aside merely because of irregularities; the petitioner must prove that the non-compliance affected the result in a substantial manner, meaning the effect was calculated to really influence the result significantly, assessed against the winning margin.
Illegal Practices — Bribery and Fundraising — Standard and Need for Corroboration
Allegations of bribery and prohibited fundraising or donations during the campaign period must be proved to the satisfaction of the court; uncorroborated testimony, particularly from partisan witnesses, and allegations not pleaded in the petition cannot sustain a finding of an illegal practice.
Election Petitions — Standard of Proof — Balance of Probabilities to the Satisfaction of Court
In a parliamentary election petition the burden lies on the petitioner and the standard of proof is on a balance of probabilities, but because of the public importance of elections the facts must be proved to the satisfaction of the court by credible and cogent evidence.

Legislation cited (10)

Cases cited (18)

  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Mbayo Jacob Robert v Electoral Commission & Another (Election Petition Appeal No. 7 of 2006)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
  • Paul Mwiru v Hon. Igeme Nathan Nabeta & 2 Others (Election Petition Appeal No. 6 of 2011)
  • Blyth v Blyth [1966] AC 643
  • Col (Rtd) Dr. Besigye Kiiza v Museveni Yoweri Kaguta & Electoral Commission (Election Petition No. 1 of 2006)
  • Uganda Journalists Safety Committee & Ors v Attorney General (Constitutional Petition No. 7 of 1997)
  • Mutembuli Yusuf v Nagwomu Moses Musamba (Election Petition No. 3 of 2016)
  • Mwithali v M'itobi (1986-1989) EA 389
  • Rt. Col. Dr. Kizza Besigye v Yoweri Kaguta Museveni & Another (Presidential Election Petition No. 1 of 2001)
  • Mbowe v Eliuffo [1967] EA 240
  • Amama Mbabazi & Another v Musinguzi Garuga James (Election Petition Appeal No. 12 of 2002)
  • Hackney & Morgan Vs Simpson
  • Gunn v Sharpe [1974] 2 All ER 1058
  • Odo Tayebwa v Bassajjabalaba Nasser & Electoral Commission (Election Petition Appeal No. 13 of 2011)
  • Mugume Patrick v Abedi Nasser Mudiobole (Election Petition Appeal No. 30 of 2011)
  • Achieng Sarah Opendi v Ochwo Nyakecho Kezia (Election Petition Appeal No. 29 of 2011)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Chebrot Stephen Chemoiko v Soyekwo Kenneth and the Electoral Commission (Election Petition Appeal No.56 of 2016) [2017] UGCA 14 (4 May 2017)
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.