Mubiru v Kiviiri & Another (Election Petition 3 of 2021)
High Court
· [2021] UGHC 65
· 2021
Petition Dismissed
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Holding
The court dismissed the election petition challenging the election of the 1st Respondent as District Chairperson for Gomba District. While minor irregularities were found including spelling discrepancies in names and polling stations, forged declaration forms, and administrative errors, the court held that these did not amount to noncompliance with electoral laws affecting results substantially. The irregularities were acts of negligence rather than criminality, and did not warrant overturning the democratic will expressed in the election.
Outcome
Petition dismissed with partial costs awarded against the Electoral Commission
Facts
The Petitioner challenged the election of the 1st Respondent as District Chairperson for Gomba District held on 20 January 2021, alleging electoral offences and illegal practices. At close of scheduling conference, preliminary objections were raised resulting in expungement of portions of the petition and several supporting affidavits. The remaining case rested on five affidavits. Key allegations included: improper nomination of 1st Respondent due to name discrepancy (Kiviri vs Kiviiri), declaration of results forms for two polling stations being unsigned or altered, and appointment of presiding officers with identity issues. The 1st Respondent received 16,796 votes against Petitioner's 16,745 votes, a margin of 51 votes. The Electoral Commission defended the election process while acknowledging some administrative errors.
Issues
- Whether the Election of District Chairperson for Gomba District was conducted in compliance with the electoral laws and principles governing elections?
- Whether noncompliance, if any, with the electoral laws and principles governing elections affected the final results of the elections in a substantial manner?
- Whether the Respondents personally or by their agents/representatives, with their knowledge and consent or approval, committed any electoral malpractices, illegal practices or electoral offences?
- What remedies are available to the parties?
Orders
- Election Petition No. 3 of 2021 dismissed.
- The 2nd Respondent (Electoral Commission) condemned to 40% of the costs incurred by the Petitioner.
- The 2nd Respondent (Electoral Commission) condemned to 40% of the costs incurred by the 1st Respondent.
Rules and key headnotes
Burden and Standard of Proof in Election Petitions
In election petitions, the burden of proof lies on the petitioner throughout the trial and does not shift. The standard of proof is to the satisfaction of the court on a balance of probabilities, requiring evidence free from contradictions and sufficiently cogent to convince a reasonable tribunal, with the standard being particularly high due to the critical importance of elections to democratic governance.
Amendment of Pleadings - Requirement for Formal Application
A party cannot introduce new grounds of claim through submissions where those grounds were not pleaded in the petition. Parties are bound by their pleadings under Order 6 rule 7 of the Civil Procedure Rules, and cannot prove what was not pleaded except through formal amendment with leave of court. Once a pleading is expunged from the record, it cannot be restored in submissions or considered in judgment.
Nomination Irregularities - Time for Challenge
Issues regarding nomination of candidates should be resolved before elections through complaints to the Electoral Commission as provided under Section 15 of the Electoral Commission Act. A party who waives the right to bring complaints within the stipulated period is estopped from raising such complaints after the election.
Uncertified Documents - Admissibility Requirements
Declaration of results forms are public documents that must be certified as per Sections 75 and 76 of the Evidence Act. A party wishing to rely on uncertified documents must give notice to the party in possession of the original requesting certification. Where such notice is not given and certification refused, uncertified documents cannot prove any fact they seek to prove.
Declaration of Results Forms - Effect of Corrections
Corrections or alterations on declaration of results forms do not invalidate the forms where the corrections are countersigned by the presiding officer, preferably in the presence of the respective parties' agents. Such countersigning indicates acknowledgment that a mistake was made and corrected. Declaration of results forms unsigned by presiding officers but signed by candidates' agents are not invalidated where not contested by any candidate or their agents.
Setting Aside Elections - Substantiality Test
Non-compliance with electoral laws per se is not sufficient to overturn an election. The non-compliance must be so significant as to substantially affect the results applying both quantitative and qualitative tests. The court must consider whether there was substantial compliance with law and principles, the nature and gravity of non-compliance, whether irregularities adversely affected the sanctity of the election, and whether the winning majority would be reduced so as to put victory in doubt. Elections should not be overturned on light or trivial matters as they represent the democratic will of the people.
Costs in Election Petitions - Judicial Discretion
The award of costs in election petitions is a matter of judicial discretion to be exercised judiciously. Costs are not meant to be punitive but to indemnify the successful party for expenses incurred. Where a respondent's negligence contributed to irregularities giving rise to the petition, the court may exercise discretion to condemn the respondent to a portion of costs even where the petition is dismissed.
Legislation cited (28)
- Local Governments Act Cap 243 s.139
- Local Governments Act Cap 243 s.142
- Local Governments Act Cap 243 s.136(1)
- Local Governments Act Cap 243 s.136(4)
- Local Governments Act Cap 243 s.151(c)
- Local Governments Act Cap 243 s.131(1)(a)
- Local Governments Act Cap 243 s.153(1)
- Local Governments Act Cap 243 s.150
- Local Governments Act Cap 243 s.105(1)(a)
- Electoral Commission Act Cap 140 s.12(1)(f)
- Electoral Commission Act Cap 140 s.12(1)(e)
- Electoral Commission Act Cap 140 s.12(1)(j)
- Electoral Commission Act Cap 140 s.15
- Electoral Commission Act Cap 140 s.33(3)
- Registration of Persons Act s.36
- Evidence Act Cap 6 s.101
- Evidence Act Cap 6 s.133
- Evidence Act Cap 6 s.64
- Evidence Act Cap 6 s.75
- Evidence Act Cap 6 s.76
- Civil Procedure Act Cap 71 s.27
- Civil Procedure Rules SI 71-1 Order 6 rule 7
- Civil Procedure Rules SI 71-1 Order 19 rule 3(1)
- Constitution of the Republic of Uganda 1995 Article 1(4)
- Constitution of the Republic of Uganda 1995 Article 67(1)
- Parliamentary Elections Act s.61(a)
- Parliamentary Elections Act s.53(1)
- Parliamentary Elections (Interim Provisions) Rules SI 141-2 Rule 27
Cases cited (29)
- Otada Sam Amooti Owor v Tabani Idi Amin and Electoral Commission (Election Petition Appeal No. 93 of 2016)
- Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
- Kwoba Herbert v Ssebugwawo Tadeo (Election Petition Appeal No. 108 of 2016)
- Mutembuli Yusuf v Nagwomu Moses Musamba (Election Petition No. 13 of 2016)
- Simon Peter Kinyera v Electoral Commission and Taban Idi Amin (Election Petition Appeal No. 3 of 2018)
- Matsiko Winfred Komuhangi v Babihuga T. Winnie (Election Petition Appeal No. 9 of 2002)
- Col. (RTD) Dr. Besigye Kiiza v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2001)
- Byarugaba Mustafa and 2 Others v Ampaire Kizito Nseko and 2 Others (Election Petition No. 0011 of 2021)
- Kasirye Zimula Fred v Electoral Commission and Another (Election Petition Appeal No. 1 of 2018)
- Mashate Magomu v Electoral Commission and Another (Election Petition No. 7 of 2016)
- Kwijuka Geoffrey v Electoral Commission and Another (Election Petition No. 7 of 2011)
- Eng. Ibaale Daniel v Abdu Katuntu and Another (Election Petition Appeal No. 41 of 2016)
- Muyanja Simon Lutaaya v Kenneth Lubogo and Electoral Commission (Election Petition Appeal No. 82 of 2016)
- Karanzi Charles v Musoke Paul Sebulime (Election Petition No. 17 of 2016)
- Mujuni Vincent Kyamadidi v Charles Ngabirano and Electoral Commission (Election Petition Appeal No. 84 of 2016)
- Mutembuli Yusuf v Nagwomu Moses Musamba and Electoral Commission (Election Petition Appeal No. 43 of 2016)
- Betty Muzanira Bamukwatsa v Masiko Winfred Komuhangi and 2 Others (Election Petition Appeal No. 65 of 2016)
- Ernest Kiiza v Kabakumba Labwoni Masiko (Election Petition Appeal No. 44 of 2016)
- Dr. Bayigga Michael Phillip Lulume v Mutebi David Ronald and Electoral Commission (Election Petition No. 014 of 2016)
- Ocen and Electoral Commission v Ebil (Election Petition No. 1 of 2016)
- Ngoma Ngime v Electoral Commission and Hon Winnie Byanyima (Election Petition No. 1 of 2001)
- Rehema Muhindo v Winfred Kiiza and Electoral Commission (Election Petition Appeal No. 29 of 2011)
- Dr. Kiiza Besigye v Electoral Commission and Another (Supreme Court Presidential Election Petition Appeal No. 1 of 2006)
- Achieng Sarah Opendi and Electoral Commission v Ayo Jacinta (Election Petition Appeal No. 59 and 61 of 2016)
- Okello P. Engola Macodwongo and Electoral Commission v Ayena Odongo Krispus Charles (Election Petition Appeal No. 26 and 94 of 2016)
- Kakooza John Baptist v Electoral Commission and Anthony Yiga (Election Petition Appeal No. 11 of 2011)
- Mashate Magomu Peter v Electoral Commission and Another (Election Petition Appeal No. 47 of 2016)
- Ninsiima Boaz and Another v Mpuuga David (Election Petition Appeal No. 55 of 2016)
- Kadama Mwogezaddembe v Gagawala Wambuzi (Election Petition No. 1 of 2001)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.
Mubiru v Kiviiri & Another (Election Petition 3 of 2021) [2021] UGHC 65 (22 October 2021)
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