Parody of Nalubowa Rose v Nameere Justine and Others, Election Petition No. 5 of 2026- Misdirection by a court on the law must lead to the decision being set aside unless the misdirection did not prejudice the aggrieved party

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THE DEMPCRATIC REPUBLIC OF KAGANDA
IN THE HIGH COURT OF KAGANDA AT MENGO
CA EPA NO. 015 OF 2026
(ARISING FROM MASAKA HC EP NO. 05 OF 2026)

NALUBOWA ROSE ]==================== APPELLANT
VERSUS

1. NAMEERE JUSTINE ]===================RESPONDENTS
2. ELECTORAL COMMISSION

BEFORE: HON. MOSES OKELLO JA, KAN PAUL JA AND PRETTY NAFOOD JA
CONCURRING JUDGMENT OF HON. KAN PAUL JA
Introduction

1. I agree with the decision of this Court to set aside the decision of Hon. BERNAD JR J to uphold the results of the vote recount that was ordered and conducted by HW Albert Mukasa, CM, but I write for myself to clarify the law on illegalities, the substantiality test and to offer guidance to the lower courts.
2. R2 on 16th January 2026 declared the appellant as the duly elected Woman MP of Masaka City with 25,443 votes against 20,324 votes for R1. When a recount was done by HW Albert Mukasa, he declared R1 the winner and issued a Certificate of Vote Recount with the following results:
   a) Nakabuye Juliet Kakande—6,136 votes;
   b) Nalubowa Rose—23,176 votes;
   c) Nameere Justine—25,502 votes; and
   d) Nanyonga Sauya—5,921 votes.

The Recount

3. It is trite law that in election petitions, the burden of proof rests upon the petitioner to prove the allegations in the petition on the balance of probabilities to the satisfaction of court due to the seriousness and importance of the elections. See Akugizibwe v. Muhumuza and 2 Others (Election Petition Appeal No. 52 of 2021) [2022] UGCA 126. See also, Section 80 (1) (a) of the Parliamentary Elections Act. The standard of proof is slightly above balance of probabilities in that court must be satisfied that the allegations are true.
4. Vote Recounts by the Chief Magistrates Courts are authorized by Section 74 of the Parliamentary Elections Act (PEA). It provides as follows:
   (1) Within seven days after the date on which a returning officer has, in accordance with section 77, declared as elected the candidate who has obtained the highest number of votes, any candidate may apply to the chief magistrate for a recount.

(2) The chief magistrate shall appoint the time to recount the votes which time shall be within four days after receipt of the application under subsection (1) and the recount shall be conducted in accordance with the directions of the chief magistrate.

(3) A candidate who requests a recount under this section shall deposit with the chief magistrate a security for costs of thirty currency points.”

5. The trial judge was correct in holding that the recount was applied for within the statutory timeline given the rules that apply to public holidays and weekends. It would have been absurd to require the applicant to file an application in court on days when courts are not open. In addition, there is no requirement that the actual recount must be completed within four days given that some such recounts may involve hundreds or thousands of boxes and votes.
6. In this case the recount involved at least 300 polling stations. The law merely requires that the recount must be conducted within 4 days it being ordered not that it must completed within 4 days of it being started. I agree that 74(2) of the Act was complied with by the Chief Magistrate as far as it extends to the duration of the vote recount. See Achiro & Anor v. Kidega (Election Petition Appeal No. 19 of 2016) [2017] UGCA 1.
7. The trial judge correctly pointed out that the governing principles for vote recounts are settled beyond controversy. This Court and the High Court have authoritatively pronounced themselves on the manner in which a vote recount before a Chief Magistrates Court must be undertaken and on the indispensable safeguards that distinguish a lawful recount from a procedurally defective exercise.
8. In Chebrot Stephen Chemoiko v. Soyekwo Kenneth and Electoral Commission, Election Petition Appeal No. 56 of 2016 [2017] UGCA 14, the Court of Appeal dealt directly with a situation in which unused ballot papers that had been accounted for at the close of voting were later found missing during a recount before the Chief Magistrate. The Court held that such unexplained disappearance of election materials demonstrated a failure by the Electoral Commission to keep the materials in safe custody.
9. Court also held in CA EPA 56 of 2016 that the failure was not a mere procedural lapse; it constituted non-compliance with the electoral laws since it compromised the integrity, verifiability, and reliability of the vote recount process itself. This position was followed in Kasibante Moses v. Katongole Singh Marwaha & Anor (Kampala Election Petition No. 23 of 2011) [2011] UGHC 153 and Byanyima Winnie v. Ngoma Ngime (Civil Revision No. 9 of 2001) [2001] UGHC 92
10. The trial judge followed the guidance of another High Court judge in Kasibante Moses v. Katongole Singh Marwaha & Anor (Kampala Election Petition No. 23 of 2011) but failed to apply its guidance. In that case the High Court observed that:
    ‘’… if the Chief Magistrate is satisfied that there exists good cause for ordering a recount, he or she shall order the recount. The Court shall set a date and time to conduct the recount. The recount is a court process. The court sits as usual; fully constituted with counsel and clerks to assist the Chief Magistrate. Of course the returning officer and some members of his or her staff are to be available to assist court and to handle the electoral material before the court. One box will be opened at a time. Its contents duly…examined.
11. The trial judge also correctly quoted the guidance by another judge in Byanyima Winnie v. Ngoma Ngime (Civil Revision No. 9 of 2001) [2001] UGHC 92 but failed to properly apply it. In the Byanyima case, court stated as follows:
    “A recount under [section 74 of the Act] is intended to serve as a filtering mechanism. It is intended to be more secure and reliable than the first count carried out by Presiding Officers at the various polling stations in the field at the end of polling time, on polling day. A recount is a legal function, performed under the neutrality of the court in order to untangle the numerical questions of the results. It is intended to be carried out at a higher level of scrutiny and to produce uncontestable figures of the results of each candidate.

It is, therefore, difficult to reconcile a recounting of any votes from ballot boxes, which have not been secured in accordance with the law, with those values and aspirations or even with the goals and purposes of [section 74 of the Act].

It appears to me that it should take much less than ordinary common sense to know that where any of the ballot boxes presented for a recount are found to be open or unsealed, the purposes of a recount are not achievable. Prima facie, the evidence would have been tampered with and rendered useless. In those circumstances the number of votes obtained by each candidate would not be verifiable by way of a recount.

To pretend to conduct a recount where some of the ballot boxes have been found open is mere false pretense. It is an abuse of court’s process. It amounts to second-guessing the results. Section 74 of the Act was never intended to create an illegitimate mechanism of second-guessing the results in a parliamentary election. A recount cannot be mechanically and purposelessly carried out. Exercising jurisdiction under those circumstances, would be exercising it with material irregularity…Such material irregularity is so fundamental that it vitiates the entire process of conducting a valid recount…In the instant case, some 21 ballot boxes were found not to have been secured in accordance with the provisions of the law, for the court to have ordered and proceeded with, a recount under those circumstances, was to exercise its jurisdiction with material irregularity…

12. The trial judge correctly pointed out that a recount is not a mechanical exercise in re-opening ballot boxes; it is a judicial process intended to verify, with greater security and reliability, the numerical will, expressed by the electorate. It follows that where ballot boxes or other essential electoral materials are shown to have been opened, unsealed, missing, compromised, or in any way exposed to some tampering, continuing with the recount will be an exercise in breach of the electoral law.
13. The trial judge also correctly held that having considered the law governing court-supervised vote recounts, together with the learned Chief Magistrate’s findings as recorded in the certified proceedings, the decision to proceed with the recount after it became apparent that the security and integrity of several ballot boxes and other essential electoral materials had been compromised amounted to none compliance with the electoral law and was inconsistent with the safeguards put in place by sections 75, 76 and 77 of the PE Act, Cap. 177.
14. The trial judge further held that the Chief Magistrate acted in non-compliance with the electoral law by declaring the 1st respondent the winner following the recount. Under section 77(1) and (4) of the PEA, that statutory responsibility rested with the Returning Officer upon receipt of the Certificate of Vote Recount. The CM did not have power to declare R1 the winner after the recount.
15. After correctly holding that the recount was illegally conducted. The trial judge wrongly held that the petitioner (appellant) did not prove that the result certified by the CM after the recount failed to reflect the democratic choice of the electorate of Masaka City for District Woman Member of Parliament. He further wrongly held that the petitioner had the burden to show that the results of the recount were not credible and that her failure to adduce such evidence fatal to her challenge to the vote recount figures certified by the Chief Magistrate.
16. The trial judge further proceeded to err by subjecting the illegal voter recount, a judicial process to the substantiality test. The test which is provided by Section 80(1)(a) of the Parliamentary Elections Act provides that the Court must be satisfied that the failure to conduct the election in accordance with the principles laid down in those provisions and that the non-compliance and the failure affected the result of the election in a substantial manner. The election ended the minute the results were announced.
17. The trial judge rightly pointed out that the substantiality test requires the petitioner to demonstrate that the noncompliance with electoral law was severe enough to affect the result in a substantial manner. The trial judge wrongly required the petitioner to demonstrate, by mathematical assessment, that the number of voters who were prevented from voting due to the non-compliance with electoral law or the number of voters who irregularly voted, exceed the winner’s margin. There is nothing in 80(1)(a) of the PEA that requires solely a mathematic assessment. Both the quantitative and qualitative aspect of an election matter.
18. The proper test should be whether but for the none compliance, the petitioner (if he or she lost) or some other candidate might have won the election. This version of the substantiality test accounts for both the quantifiable non compliance and the qualitative aspects that affect the quality of the election. Imagine an election in a district with two predominant tribes where the ballots are printed in only one of the two languages. Obviously there will be some none native speakers of that language that understand it.
19. It might be difficult to make a quantitative assessment of the number of affected votes but it is a failure that is likely to affect a large number of voters and court can find that it substantially affected the election results especially where the losing candidate belonged to the affected tribe. However, this alone might not reach that the level of substantially affecting the outcome where the margin of votes in issue is too high to attribute to the noncompliance.
20. The none compliance was unlawfully ordering a recount. The considerations in this scenario are three fold, firstly it is not the duty of count to conduct elections, the court’s role is to order and to conduct a recount in a judicious manner. Secondly, the rules of court proceedings are often different from those that administrative agencies are required to follow. Thirdly, the integrity of the justice system has a bearing on the court of proceedings.
21. Court proceedings differ radically from compliance by administrative agencies such as EC or police. A suit before court must be conducted judiciously and any error law goes to the root of the case requiring setting aside the proceedings except for a few instances where the error does not prejudice the other party. In this case, the error of law was ordering a recount in breach of court precedent and statutory protections. It cannot be reasonably argued that the error by the Chief Magistrate did not prejudice the appellant.
22. Court assess the effect of the Judicial Officers error where the error did not deprive the aggrieved party of a chance of success that the party would have had if the error were not made. Where court fails to follow the law, the remedy is not simply to assess whether, the failure to follow the law substantially affected the outcome of the case. The court must have regard to the integrity and public confidence in the justice system. In this specific case, the outcome would have been different if the Chief Magistrate had followed the law because the result would have been that the declaration by the EC would remain operative.
23. The failure by the CM to follow the law led to the unlawful voter recount and the voter recount changed the election result. If the Chief Magistrate had followed the law, the voter recount would have never taken place and the declaration by the EC would have remained valid. It would have placed the onus on the losing candidate to accept the results or to file an election petition to challenge election results declared by the EC. The error of law by the CM denied the appellant an outcome that she was entitled to if the law was followed. It was a misapplication of the law to claim that she was not prejudiced by the misapplication of the law.
24. Court is reinforced in its understanding of the law by the law on prejudice arising from misdirection by a trial judge in a criminal case. In criminal cases, where there is a misdirection of the jury or assessors on the law, it can lead to an acquittal or retrial or conviction where the state or accused person is denied a chance of acquittal or conviction that the jury or assessor might have considered if a proper direction were given. See, Stephen Mubiru J in Kaggwa Michael Versus Olal Mark and Six Others, HC Gulu Civil Appeal No. 0010 of 2017.
25. The trial judge misdirected himself on the law by applying the substantiality test to the results of an unlawful voter recount. He compromised the integrity and public confidence in the judicial process by relying on a voter recount conducted in breach of the law and confirmed the winner arising from a compromised Judicial Process. He did not consider applicable rules of court that justice should not only be done but that it should be seen to be done. He failed to consider and apply the rule on illegalities.
26. Section 80(1)(a) of the PEA is an exception to the rule of illegalities. Most none compliances with election laws are election offenses that constitute illegalities and court can not bless or condone an illegality. However, section 80(1) (a) of the PEA modifies this rule by stating that only those none compliances that substantially affect the outcome of the results should be enforced by court. However, Section 80(1)(a) of the PCA does not apply to illegalities or breaches by court.
27. Per the Court of Appeal in Makula International Ltd vs. His Eminence Cardinal Nsubuga & Another, CA Civil Appeal No. 04 of 1981, [1982] HCB 11, a court of law cannot sanction what is illegal, and illegality once brought to the attention of the court, overrides all pleadings, including admissions made by the parties.” See, Halling Manzoor versus Serwan Singh Baram, SC CIVIL APPEAL NO. 9 OF 2001.
28. The trial judge rightly quoted the decision in Byanyima Winnie v. Ngoma Ngime (Civil Revision No. 9 of 2001) [2001] UGHC 92 but wrongfully refused to follow it. In Byanyima Winnie v. Ngoma Ngime (Civil Revision No. 9 of 2001) [2001] UGHC 92, court held that exercising jurisdiction to order a vote recount where election materials have been tampered with would be exercising it with material irregularity…Such material irregularity is so fundamental that it vitiates the entire process of conducting a valid recount. It’s concerning that after relying on this case, the trial judge proceeded to rely on the results arising from the recount ordered by the CM.
29. If we follow the logic of the trial judge, Can Section 80(1) (a) for example apply to a failure to allow a party to be present at the recount to conclude that it didn’t have a substantial effect? If the Chief Magistrate had refused to allow the appellant either personally or through her agents to attend the vote recount could we hold that the error was not substantial enough to affect the election result? What about if the Chief Magistrate were to be seen receiving a bag of cash from the respondents before the recount? What if the CM was heard uttering expletives against the appellant or stating that he wanted the respondent to win? In these circumstances could we close our eyes and ask ourselves whether the alleged failures by the CM substantially affected the outcome of the election.
30. The answer is no. The voter recount being a judicial proceeding it must be done in a judicious manner. It must be ordered in a judicious manner. Section 80(1)(a) of the PEA does not and could not try to dictate that the rules of court proceedings do not apply wholesomely. Section 80(1) (a) regulates the conduct of the election not the discretion of court. The voter recount by court is a judicial proceeding subject to all rules of court subject to such modifications as are expressly provided for by statute.
31. If the CM had denied the appellant the chance to attend the recount, he would have violated her right to be a fair hearing and we would not be asking whether it affected the election result in a substantial manner. By failing to follow the law that bars a recount where the election materials are tampered with, the CM did an unlawful act which court can not allow to stand. It is like trying a person in a court without jurisdiction or after expiry of the limitation period or in breach of double jeopardy. We can not begin asking whether the accused person was guilty.
32. The law does not allow a recount where election materials are tampered with. The court could not rely on results of a recount that was barred by the law. The Chief Magistrate did something barred by the law and once, the result arrived at by court is not authorized by the law then the higher court has only one course of action to take. It must set aside the unlawful decision of the lower court. It can proceed to follow the same decision that it has decided was not allowed by the law.
33. If the decision by the CM were lawful but in the process of making the decision the Chief Magistrate had made an error such as relying on evidence that he should have excluded or excluded evidence that he should not have excluded, court can assess the prejudice the error occasioned to the aggrieved party. It is different in situations where a situation where the decision itself is barred in those particular circumstances. For example, if a Court convicted a person who had already been convicted and sentenced on the same facts. The conviction itself is unlawful and the reviewing court cannot ask whether the convict was prejudiced by the decision of court.
34. I agree with Mubiru J that a court will set aside a judgment, or order a new trial, on the ground of a misdirection, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, only if the court is of the opinion that the error complained of has resulted in a miscarriage of justice. A miscarriage of justice occurs when it is reasonably probable that a result more favourable to the party appealing would have been reached in the absence of the error. See, Kaggwa Michael Versus Olal Mark and Six Others, HC Gulu Civil Appeal No. 0010 of 2017.
35. In the circumstance, the CM arrived at a decision barred by the law and the trial judge after confirming that the recount was barred by law should have set it aside and exercised his discretion to set aside the election, order a rerun or confirmed the declaration of the EC before the recount. If R1 filed a counter petition, it was open to the trial judge to order a rerun or fresh election.
36. Since, the EC had omitted some polling stations from its computation and in order to protect the integrity of the justice system, it is better to let the people in Masaka decide. For the above reasons, I agree with the decision of this court to reverse the trial judge and order a rerun between the appellant and R1. The appellant is awarded costs of the appeal and the petition.