Wakilii

Ninsiima Kasirabo Boaz & Another v Mpuuga David (Election Appeal No. 55 of 2016)

Court of Appeal · [2017] UGCA 31 · 2017 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court decision nullifying a parliamentary election
Decision
Nullification of the appellant's election set aside; appellant's election upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal, holding that the trial Judge erred in relying on partisan, uncorroborated witness evidence to find intimidation and ballot stuffing. Except for the cancelled Kabukurura results and compromised transparency at two stations, the alleged non-compliance was not proved to the required standard. Findings on falsification of Declaration of Results Forms were based on unpleaded and unproved matters. Applying the substantiality test, any proved irregularities did not affect the appellant's large winning majority in a substantial manner. The nullification of the appellant's election was set aside.

Outcome

Nullification of the appellant's election set aside; appellant's election upheld

Facts

During the February 2016 parliamentary elections for Kooki County Constituency, Rakai District, the appellant was returned the winner over the respondent by a margin of 896 votes. The respondent petitioned the High Court alleging non-compliance, including intimidation by armed men at polling stations, ballot stuffing, multiple voting, voting beyond the prescribed time, and falsification of Declaration of Results Forms. The trial Judge, relying primarily on the evidence of a boda boda rider (PW9) and the respondent's polling agents, found non-compliance affecting the result substantially, nullified the election, and ordered fresh elections. On appeal, evidence was re-examined regarding the credibility and corroboration of witnesses, the reliability of medical forms and death certificates, and the results at Kabukurura polling station, which were cancelled due to two excess votes.

Issues

  1. Whether the trial Judge properly evaluated the evidence in concluding the appellant was not validly elected Member of Parliament for Kooki County.
  2. Whether there was non-compliance with electoral laws that affected the result of the election in a substantial manner.
  3. Whether the trial Judge relied on matters not pleaded or outside the record of proceedings.
  4. Whether the trial Judge disregarded the appellant's evidence and submissions.
  5. Whether the trial Judge relied on inadmissible evidence.

Orders

  • Appeal allowed.
  • The orders of the trial Court nullifying the election of the appellant as validly elected Member of Parliament for Kooki County Constituency are set aside.
  • The respondent shall bear the costs of this Appeal and of the lower Court.

Rules and key headnotes

Electoral Law — Election Petitions — Burden and Standard of Proof
In an election petition the burden of proof lies on the petitioner to prove the allegations to the satisfaction of the court, and the standard of proof is on a balance of probabilities under section 61 of the Parliamentary Elections Act.
Evidence — Partisan Witnesses — Need for Corroboration
In election matters particular care must be taken before believing partisan witnesses, who tend to exaggerate; their evidence is safely relied upon only where corroborated by independent evidence.
Electoral Law — Ballot Stuffing — Proof Required
Ballot stuffing must be proved as a real fact, typically by proof that votes cast at a polling station exceeded the number of registered voters or persons who turned up to vote; it cannot be inferred merely from arithmetic errors.
Civil Procedure — Pleadings — Findings on Unpleaded Matters
A court decides only the issues raised in the parties' pleadings; a trial court errs where it makes findings on matters, such as falsification of Declaration of Results Forms, that were not pleaded in the petition.
Electoral Law — Substantiality Test — Effect of Non-compliance on Result
An election will not be set aside for mere irregularities; the petitioner must prove that the non-compliance affected the result in a substantial manner, which is not established where the winning margin remains wide after adjusting for proved irregularities.
Evidence — Documentary Evidence — Admissibility of Death Certificates
A witness who is not a relative of the deceased, was not present at death or burial, and lacks capacity under section 16 of the Births and Deaths Registration Act cannot competently tender death certificates, and such evidence is inadmissible.

Legislation cited (7)

Cases cited (10)

  • Anthony Ngoo & Another v Kitinda Kimaro (Civil Appeal No. 25 of 2012)
  • Epetait Francis v Dr. Isamat Abraham (Election Petition Appeal No. 12 of 2011)
  • Kizza Besigye v Yoweri Kaguta Museveni (Presidential Petition No. 1 of 2006)
  • Rt. Col. Dr. Kizza Besigye v Yoweri Kaguta Museveni & Another (Presidential Election Petition No. 1 of 2001)
  • Paul Mwiru v Hon. Igeme Nathan Nabeta Samson & 2 Others (Election Petition Appeal No. 6 of 2011)
  • Toolit Simon Akecha v Oulanya Jacob L'Okori & Another (Election Petition Appeal No. 19 of 2011)
  • Libyan Arab Bank for Foreign Trade and Development v Adam Vassiliadis (Civil Appeal No. 9 of 1985)
  • Mbowe v Eliufoo [1967] EA 240
  • Gunn v Sharpe [1974] 1 QB 808
  • Supreme Court Civil Appeal No.8 of 1998

Full judgment

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

Ninsiima Kasirabo Boaz & Another v Mpuuga David (Election Appeal No. 55 of 2016) [2017] UGCA 31 (10 October 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.