Wakilii

Mubiru v Kiviri and Another (Election Petition No. 3 of 2021)

High Court · [2021] UGHCEP 43 · 2021 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the nomination, election and declaration of the 1st Respondent as District Chairperson for Gomba District
Decision
Petition dismissed; election of 1st Respondent as District Chairperson for Gomba District upheld

Observed later treatment

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Holding

The High Court dismissed the election petition challenging the election of the 1st Respondent as District Chairperson for Gomba District. The court held that although there were minor irregularities in the electoral process — including disparities in the spelling of names of the 1st Respondent, a presiding officer, and a polling station, as well as the tendering of a forged Declaration of Results Form by an agent — these irregularities did not amount to non-compliance with electoral laws that substantially affected the election results. The court found that the irregularities were attributable to negligence and human error rather than criminal conduct or electoral malpractice, and that the petitioner failed to prove his case to the required standard.

Outcome

Petition dismissed; election of 1st Respondent as District Chairperson for Gomba District upheld

Facts

The Petitioner challenged the election of the 1st Respondent as District Chairperson for Gomba District held on 20 January 2021. The Petitioner alleged that the electoral process was marred by electoral offences and illegal practices, including: improper nomination of the 1st Respondent due to a spelling discrepancy in his name (Kiviri vs Kiviiri); unsigned Declaration of Results Forms at two polling stations; appointment of presiding officers whose names on their national identity cards differed from those on appointment documents; and alteration of results on Declaration of Results Forms. The 1st Respondent won with 16,796 votes against the Petitioner's 16,745 votes, a margin of 51 votes. At the scheduling conference, the court upheld preliminary objections and expunged certain paragraphs from the Petition and several supporting affidavits. The Respondents called witnesses including presiding officers who explained the discrepancies as typographical errors and provided evidence that they were the same persons appointed despite spelling variations in their names.

Issues

  1. Whether the election of District Chairperson for Gomba District was conducted in compliance with the electoral laws and principles governing elections?
  2. Whether noncompliance, if any, with the electoral laws and principles governing elections affected the final results of the elections in a substantial manner?
  3. 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?
  4. What remedies are available to the parties?

Orders

  • Election Petition No. 3 of 2021 dismissed.
  • The declarations sought by the Petitioner denied.
  • The 2nd Respondent (Electoral Commission) condemned to pay 40% of the costs incurred by the Petitioner.
  • The 2nd Respondent condemned to pay 40% of the costs incurred by the 1st Respondent.

Rules and key headnotes

Election Petitions — Burden and Standard of Proof
In an election petition, the burden of proof lies on the petitioner throughout the trial and does not shift. The standard of proof is proof to the satisfaction of the court on a balance of probabilities. Because of the public importance of an election petition, the facts must be proved to the satisfaction of court by adducing evidence which is free from contradictions and truthful so as to convince a reasonable tribunal.
Election Petitions — Amendment of Pleadings
A party cannot prove what was not pleaded except through amendment with leave of court. Where a ground is not pleaded in the petition or joint scheduling memorandum, and no application for amendment is made, the petitioner cannot introduce that ground through submissions. Issues of nomination should be resolved before elections, and a party who fails to bring complaints within the stipulated period is estopped from doing so after the election.
Documentary Evidence — Certification of Public Documents
Declaration of Results Forms are public documents. A party wishing to rely on them must have them certified as per sections 75 and 76 of the Evidence Act. Without certification, such documents cannot prove any fact they seek to prove. The exception under section 64(1) of the Evidence Act applies only where the party seeking to rely on uncertified documents gives notice to the party in possession of the original requesting certification and they refuse or fail to do so.
Election Petitions — Effect of Expunged Pleadings
Once a pleading is severed from a petition and expunged from the record by court order, it ceases to exist on the court record and cannot be restored in submissions or considered in judgment. Submitting on the basis of a severed or expunged paragraph is tantamount to abuse of court processes bordering on contempt of court.
Election Petitions — Corrections on Declaration of Results Forms
Corrections on Declaration of Results Forms ought not to be a critical issue if done and acknowledged by countersigning against the correction, preferably by the presiding or returning officer and the respective parties' agents. Such corrections ordinarily imply a mistake was made and that the presiding or returning officer corrected the error. Where corrections are countersigned by the presiding officer in the presence of both parties' polling agents, and all parties acquiesce to the alterations, the forms remain valid.
Election Petitions — Substantiality Test for Non-Compliance
Non-compliance with electoral laws per se is not enough to overturn an election. The non-compliance must be so significant as to substantially affect the results of the election. In determining the effect of irregularities on the result, the court should consider whether there has been substantial compliance with the law and principles, and the nature, extent, degree and gravity of non-compliance. The court must consider whether the irregularities adversely affected the sanctity of the election and whether the winning majority would have been reduced in such a way as to put the victory of the winning candidate in doubt. Both quantitative and qualitative approaches should be applied.
Election Petitions — Grounds for Setting Aside an Election
Elections should not be overturned on light or trivial matters since an election is the expression of the democratic will of the people. An election is a politically sacred public act of the collective will of the whole constituency. Courts must show extreme reluctance to set aside or declare void an election that has already been held unless clear and cogent evidence is presented. Irregularities amounting to acts or omissions of negligence, rather than offences or criminal acts, do not justify annulment of the will of the majority.

Legislation cited (27)

Cases cited (30)

  • 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)
  • Besigye Kiiza v Museveni Yoweri Kaguta and the Electoral Commission (Election Petition No. 1 of 2001)
  • Byarugaba Mustafa and 2 Others v Ampaire Kizito Nseko and 2 Others (Election Petition No. 11 of 2021)
  • Ocen and Electoral Commission v Ebil (Election Petition No. 1 of 2016)
  • Ngoma Ngime v Electoral Commission and Winnie Byanyima (Election Petition No. 1 of 2001)
  • 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)
  • Kasirye Zimula Fred v Electoral Commission and Another (Election Petition Appeal No. 1 of 2018)
  • Muyanja Simon Lutaaya v Kenneth Lubogo and the 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 the Electoral Commission (Election Petition Appeal No. 84 of 2016)
  • Betty Muzanira Bamukwatsa v Masiko Winnifred Komuhangi and 2 Others (Election Petition Appeal No. 65 of 2016)
  • Ernest Kiiza v Kabakumba Labwoni Masiko (Election Petition Appeal No. 44 of 2016)
  • Bayigga Michael Phillip Lulume v Mutebi David Ronald and Electoral Commission (Election Petition No. 14 of 2016)
  • Mashate Magomu Peter v The Electoral Commission and Another (Election Petition No. 7 of 2016)
  • Mashate Magomu Peter v The Electoral Commission and Another (Election Petition Appeal No. 47 of 2016)
  • Kakooza John Baptist v Electoral Commission and Anthony Yiga (Election Petition Appeal No. 11 of 2011)
  • Achieng Sarah Opendi and Electoral Commission v Ayo Jacinta (Election Petition Appeal Nos. 59 and 61 of 2016)
  • Ninsiima Boaz and Another v Mpuuga David (Election Petition Appeal No. 55 of 2016)
  • Okello P. Engola Macodwongo and Electoral Commission v Ayena Odongo Krispus Charles (Election Petition Appeal Nos. 26 and 94 of 2016)
  • Kadama Mwogezaddembe v Gagawala Wambuzi (Election Petition No. 1 of 2001)
  • Besigye Kiiza v Electoral Commission and Another (Supreme Court Presidential Election Petition Appeal No. 1 of 2006)
  • Rehema Muhindo v Winfred Kiiza and Electoral Commission (Election Petition Appeal No. 29 of 2011)
  • Shah Hemraj Bharmat (supra)
  • Ibaale Daniel v Abdu Katuntu and Another (Election Petition Appeal No. 41 of 2016)

Full judgment

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Mubiru v Kiviri and Another (Election Petition No. 3 of 2021) [2021] UGHCEP 43 (22 October 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.