Wakilii

Nakalyango v Nakasolya (Election Appeal No. 03 of 2017)

Court of Appeal · [2019] UGCA 13 · 2019 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal from the High Court sitting as first appellate court over a decision of the Chief Magistrate's Court in an election petition
Decision
Appeal allowed in part; nullification of the election upheld and the costs order against the appellant set aside, with each party bearing its own costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a second appeal, the Court of Appeal upheld the High Court's nullification of the election, holding that although no forgery of the DR Forms was proved, there was clear evidence of an electoral irregularity attributable to the Electoral Commission which substantially affected the result and the will of the people. However, the Court interfered with the first appellate Judge's costs order, holding that costs are a discretionary function that must be exercised judiciously with reasons given; since no reason was given for condemning the appellant to pay 50% of the lower court costs, and no electoral offence was attributable to her, the order was set aside. Each party was to bear their own costs.

Outcome

Appeal allowed in part; nullification of the election upheld and the costs order against the appellant set aside, with each party bearing its own costs

Facts

The appellant and the respondent contested for the seat of Woman Councillor Kibuye 1, Makindye West Constituency, Kampala District. The Electoral Commission returned the appellant as duly elected. The respondent petitioned the Chief Magistrate's Court of Makindye challenging the outcome regarding certain polling stations where the appellant was recorded as obtaining more votes. The Chief Magistrate allowed the petition, set aside the return, and declared the respondent duly elected, ordering the appellant to pay costs. On appeal, the High Court upheld the finding that the appellant was not validly elected but set aside the declaration of the respondent as elected, instead nullifying the election, declaring the seat vacant and ordering fresh elections. The High Court found no proof of forgery of the DR Form, but held that recorded votes (300) exceeded the number of voters (257) at the contested polling station, indicating an irregularity in violation of electoral law that substantially affected the result. It varied the costs order, condemning the appellant to pay 50% of the lower court costs.

Issues

  1. Whether the learned first appellate Judge erred in law when she ordered the appellant to pay 50% of the costs in the lower court and denied her costs in the High Court.
  2. Whether the learned first appellate Judge erred in law when she nullified the election results and declared the seat vacant without justification.
  3. What remedies are available to the parties.

Orders

  • The order of the first appellate Court nullifying the election for Woman Councillor for Kibuye 1, Makindye Division, Kampala District is upheld.
  • The parties to this appeal shall meet their respective costs here and in the courts below.

Rules and key headnotes

Election Petitions — Substantiality Test — Effect of Electoral Irregularities on Result
Where an electoral irregularity, such as recorded votes exceeding the number of voters who cast ballots, diminishes the integrity of results and substantially affects the outcome and the will of the people, a court may nullify the election even absent proof of forgery.
Election Petitions — Standard of Proof — Cogent Evidence of Non-Compliance
To succeed on substantiality there must be cogent evidence, direct or circumstantial, establishing not only the effect of non-compliance or irregularities but that the effect on the result was substantial.
Costs — Judicial Discretion — Requirement to Give Reasons
The award of costs is a discretionary function that must be exercised judiciously and reasons given; an appellate court will interfere where a costs order is made against a party without good reason connected to the case or where no reasons are given for the order.
Second Appeals — Limits on Re-evaluation of Facts
On a second appeal a court is precluded from questioning the trial court's findings of fact where there was evidence to support them; it may interfere only where there was no evidence to support a finding, that being a question of law.

Legislation cited (5)

Cases cited (11)

  • Achieng Sarah Opendi and Another v Ochwo Nyakecho Keziah (Election Petition Appeal No. 39 of 2011)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 2007)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Pandya vs. R. (1957) E.A. 336
  • Okeno vs. Republic (1972) E.A. 32
  • R. vs. Hassan bin Said (1942) 9 E.A.C.A. 62
  • Kiiza Besigye v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2016)
  • Impressa Infortunato Federic v Irene Nabwire (Supreme Court Civil Appeal No. 3 of 2000)
  • Serunjogi James Mukubi v Lule Umar Mayiwa (Election Petition Appeal No. 15 of 2016)
  • George Patrick Kassaja v Fredrick Ngobi Gume (Election Petition Appeal No. 0068 of 2016)
  • the Joy Kabatsi case (supra)

Full judgment

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

Nakalyango Vs Nakasolya (Election Appeal No. 03 of 2017) [2019] UGCA 13 (25 March 2019)
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.