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Otheino Okoth v Ochai and Another (Election Petition No. 14 of 2021)

High Court · [2022] UGHC 4 · 2022 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition following parliamentary election; re-trial after Court of Appeal set aside first trial judgment
Decision
Election of 1st Respondent as Member of Parliament for West Budama County North Constituency upheld

Observed later treatment

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Holding

Held that Bio-data Voter Verification Machines (BVVMs) are used to authenticate voter identity and prevent multiple voting but are not required for tallying results under the Parliamentary Elections Act. The Petitioner failed to prove through cogent evidence that electoral irregularities including ballot stuffing, voter harassment, and bribery occurred at the contested polling stations. The evidence contained contradictions and lacked corroboration. The election was conducted in accordance with law and no non-compliance affecting results in a substantial manner was established. Petition dismissed with costs.

Outcome

Election of 1st Respondent as Member of Parliament for West Budama County North Constituency upheld

Facts

The Petitioner and 1st Respondent contested for Member of Parliament for West Budama County North in elections held on 14 January 2021. The 1st Respondent was declared winner with 10,981 votes against the Petitioner's 9,856 votes. The Petitioner challenged the election alleging irregularities including use of BVVMs data contrary to law, ballot stuffing, voter harassment and intimidation at multiple polling stations, bribery, and failure to conduct the election in open places. The original petition was dismissed by the High Court but the Court of Appeal set aside that judgment and ordered a re-trial. In the re-trial, counsel for all parties adopted the Joint Scheduling Memorandum and elected not to cross-examine any deponents. The Petitioner relied on affidavit evidence from witnesses at 17 polling stations and BVVM printouts allegedly obtained by a District IT Officer.

Issues

  1. Whether the election for the position of directly elected Member of Parliament for West Budama County North Constituency in Tororo District was conducted in accordance with the law?
  2. Whether the non-compliance if any, affected the results in a substantial manner?
  3. Whether the 1st Respondent committed any illegal practices or electoral offences personally or through his agents with his knowledge, consent or approval?

Orders

  • Petition dismissed.
  • Costs awarded to the 1st Respondent.
  • Costs awarded to the 2nd Respondent.

Rules and key headnotes

Electoral Law — Use of Technology — Bio-data Voter Verification Machines — Role in Electoral Process
Bio-data Voter Verification Machines introduced under the Electoral Commission (Adoption and Manner of Use of Technology In the Management of Elections) Regulations SI Number 2/2021 serve to improve the integrity of the electoral process through authentication of voter identity and elimination of multiple voting, but are not a substitute for the Voters Register and are not required for tallying or announcing results under the Parliamentary Elections Act sections 51 and 53.
Evidence — Electronic Evidence — Admissibility — Authentication Requirements
Under the Electronic Transactions Act section 8(2) and the Computer Misuse Act section 29(2), a person seeking to introduce electronic records in legal proceedings bears the burden of proving authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be, and the court must assess the reliability of the manner in which the data was generated, stored, communicated and maintained.
Electoral Law — Election Petitions — Burden and Standard of Proof
The burden of proof in an election petition lies on the petitioner and does not shift to the respondent. The petitioner must prove on a balance of probabilities that alleged irregularities or malpractices were committed and that they affected the results in a substantial manner, adducing credible or cogent evidence which is free from contradictions, truthful and compelling.
Evidence — Election Petitions — Affidavit Evidence — Evaluation
In evaluating affidavit evidence in election petitions, courts must exercise caution because witnesses tend to be partisan and testimonies may contain deliberate falsehoods and exaggerations. Election petitions are highly partisan and supporters are likely to go to any length to seek to establish adverse claims, therefore cogent independent and credible evidence is required to corroborate claims.
Electoral Law — Electoral Offences — Bribery — Elements of Proof
To prove bribery in election matters, a petitioner must establish to the satisfaction of the court: (i) that a gift was given to a voter; (ii) that the gift was given by a candidate or his agent; and (iii) that the gift was given to induce the receiver to vote for the candidate or to influence a voter to refrain from voting for a preferred candidate. Independent evidence is necessary to confirm the allegations since both giver and receiver are accomplices.
Electoral Law — Election Petitions — Substantiality Test — Partial Evidence
Where a petitioner challenges results based on alleged irregularities at only some polling stations within a constituency, the court cannot apply the substantiality test to determine whether non-compliance affected the election outcome in the absence of evidence from all polling stations in the constituency.

Legislation cited (17)

Cases cited (10)

  • Chebrot Stephen Chemoiko v Soyekwo Kenneth and Another (Election Petition Appeal No. 56 of 2016)
  • Ssematimba Peter Simon and Another v Sekigozi (Election Petition Appeal No. 40 of 2016)
  • Okoth Othieno v Ochai Maximus and Electoral Commission (Election Petition Appeal No. 70 of 2021)
  • Rtd. Col. Dr. Kizza Besigye v Yoweri Kaguta Museveni and Another (Supreme Court Presidential Election Petition No. 1 of 2001)
  • Kasta Hussein Bukenya v Bukenya Balibaseka Gilbert and Another (Election Petition No. 29 of 2011)
  • Kabuusu Moses Wagaba v Lwanga Timothy and Electoral Commission (Election Petition No. 15 of 2011)
  • Kiiza Besigye v Yoweri Kaguta Museveni (Supreme Court Election Petition No. 1 of 2001)
  • Apolot Stella Isodo v Amongin Jacqueline (Election Petition Appeal No. 60 of 2016)
  • Karokora v Mondo Kagonyera (Election Petition No. 2 of 2001)
  • Karokora v Electoral Commission and Mondo Kagonyera (Election Petition No. 2 of 2001)

Full judgment

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

Otheino Okoth v Ochai and Another (Election Petition No. 14 of 2021) [2022] UGHC 4 (1 December 2022)
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.