Wakilii

Kamba Hassan v Returning Officer Busia District and Another (Election Appeal 12 of 2021)

High Court · [2021] UGHC 79 · 2021 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's refusal to order recount of parliamentary election results
Decision
Appeal dismissed. Chief Magistrate's ruling and dismissal of application for recount upheld.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An order for a recount of parliamentary election results is discretionary and not granted as of right. There must be cogent evidence of a mistake by the returning officer. Where declaration of results forms were duly signed by the appellant's agents at polling stations, and no evidence substantiated allegations of fraud or impropriety beyond hearsay assertions, the court will not order a recount. Alterations on declaration forms done transparently in the presence of agents and endorsed by them do not constitute grounds for recount.

Outcome

Appeal dismissed. Chief Magistrate's ruling and dismissal of application for recount upheld.

Facts

The Appellant and 2nd Respondent contested the Busia Municipality parliamentary seat in the 14 January 2021 general elections. The 2nd Respondent was declared winner with 3507 votes against the Appellant's 3411 votes, a difference of 96 votes. The Appellant filed an application before the Chief Magistrate seeking a recount, alleging unfair invalidation of ballot papers by biased polling officers and claiming that spoilt votes exceeded the margin of victory. He also alleged that an electoral supervisor for Western Division was arrested red-handed altering results on a Declaration of Results form for Kisenyi B (N-Z) polling station. The Chief Magistrate dismissed the application, finding insufficient evidence to warrant a recount. The Appellant appealed.

Issues

  1. Whether the learned trial Chief Magistrate erred in failing to allow the appellant to personally supplement his lawyer's submissions.
  2. Whether the evidence presented was insufficient and could not warrant an order for a recount.
  3. Whether the alterations on the Declaration of Results form for Kisenyi B (N-Z) polling station justified a recount.
  4. Whether the Chief Magistrate erred in taking the alleged arrest of the electoral supervisor lightly.

Orders

  • Appeal dismissed.
  • Electoral Commission to bear its own costs of the appeal and in the court below.
  • Costs of the appeal and in the court below awarded to the 2nd Respondent against the Appellant.

Rules and key headnotes

Electoral Law — Recount of Votes — Jurisdiction and Grounds — Evidentiary Requirements
A recount of election results is not granted as of right but only upon cogent evidence of sound grounds for believing that there had been a mistake on the part of the returning officer. An order for recount is discretionary in nature and the applicant must justify making it by satisfying the Chief Magistrate with good reasons why the court should order a recount.
Electoral Law — Declaration of Results Forms — Endorsement by Agents — Evidential Weight
Where Declaration of Results forms are endorsed by a candidate's agents who were present at the polling stations, and there is no evidence of any complaint on their part, a recount will be prima facie unjustified. The endorsement by agents signifies that the elections were conducted in accordance with electoral laws. An election is about checks and balances, and DR forms and polling agents provide those safeguards.
Electoral Law — Alterations on Declaration Forms — Permissibility of Corrections
Alterations on Declaration of Results forms that are made for purposes of rectifying mistakes and entering the right figures, done transparently in the presence of candidates' agents who then endorse the forms, do not constitute grounds for a recount. It is permissible for one electoral officer to fill the DR form and another to correct mistakes, provided this is done transparently in the presence of candidates' agents.
Evidence — Hearsay Evidence — Unsubstantiated Allegations in Electoral Disputes
Allegations of electoral malpractice that are not supported by direct evidence from witnesses who personally observed the alleged misconduct, but are based on hearsay, are insufficient to ground an order for recount. Where an applicant was not present at the polling station where alleged misconduct occurred and none of his agents deposed affidavits in support of the claims, such allegations will not be sustained.
Civil Procedure — Right to be Heard — Legal Representation and Personal Audience
A party to a suit is not to be denied audience when he or she seeks it, even if properly represented by counsel. This is part of the right to a fair hearing under Article 28 of the Constitution. However, where the court record does not clearly establish that a party affirmatively sought and was denied audience, no finding of denial of the right to be heard can be made.
Civil Procedure — Costs — Security for Costs in Election Recount Applications
Under Section 55(3) of the Parliamentary Elections Act, a candidate requesting a recount must deposit mandatory security for costs. Once a court awards costs after determination of the matter, the party in whose favour costs are awarded files a bill of costs for taxation. The security deposited is then set off against the taxed costs, and if insufficient, the court orders the liable party to pay the balance. The award of costs precedes the determination of the sufficiency of the security.

Legislation cited (15)

Cases cited (4)

  • Mbagaadi F. Nkayi v Dr. Nabwiso F. Wilberforce (Election Petition Appeal No. 14 of 2011)
  • Kasibante Moses v Katongole Singh (High Court Election Petition No. 23 of 2011)
  • Mbagaadi F. Nkayi and Another v Dr. Nabwiso F.W.B (Election Petition Appeal Nos. 14 and 16)
  • Nyakecho Kezia Ochwo v Electoral Commission and Another (High Court Election Petition No. 11 of 2006)

Full judgment

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

Kamba Hassan v Returning Officer Busia District and Another (Election Appeal 12 of 2021) [2021] UGHC 79 (2 February 2021)
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.