Gigeus v. The Returning Officer, Babati and Hon. Marke Misc. Civ. Cause 10-A-70; 22/6/71; Bramble J. and Kwikima Ag. J.

Gigeus v. The Returning Officer, Babati and Hon. Marke Misc. Civ. Cause 10-A-70; 22/6/71; Bramble J. and Kwikima Ag. J.

            This is a petition challenging the outcome of the 1970 General Elections in Hanang Constituency where the petitioner was defeated by a majority of 6, 956 votes. The grounds of objection were inter alia that  the election and count of votes was not conducted in accordance with the Election act 1970 in that: (a) c/s 71 (b) and (c) of the Act no polling took place in 10 named polling stations; (b) the presiding officer failed to put official marks at the back of some 8 ballot papers which were counted; and (c) because of the disregard of prescribed procedure and lack of proper supervision more than 3,000 registered voters did not exercise their right to vote.

                        Held: (1) “There were no presiding officers and therefore no voting in six of the ten polling stations named by the petitioner.” (2) “There was no proof of the petitioner’s allegation that more that 3, 000 voters were unable to cast their voter for lack of adequate supervision, the voters registered at those stations where there was no or inadequate supervision does not approach that number. The figures given for six stations had less than 2,000 registered voters.” (3) “That the unstamped votes in the boxes listed above were counted (which has been proved) was clearly in contravention of the express provisions of the Act, because section 89(2) (a) states as following: “Any ballot paper which does not bear an official mark, shall not be counted.” (4) “The action of the respondent (in allowing the counting of the unmarked votes) was a purely administrative error and an irregularity done with no corrupt motive. As such It could not be an illegal practice under the Act.” (Referring to ss. 117(2) and 118 which define “illegal practice” which could be fatal to an election). (5) “The petitioner did not specify any section to the Act under which the elections was to be avoided……. What the petitioner has proved could only come under section 123(3) (c) which states as follows: [the learned judges then set out the provisions of the act and continued] All that the petitioner has done in this case has been to show that the returning officer caused some 2,000 voters or so not to cast their votes and that he was in be reach of three of four sections relating to the procedure at the counting of votes. The majority which the successful candidate obtained against the petitioner was 6, 956. We are not convinced that with such a substantial majority against the petitioner, compliance with the rules of procedure at counting would have enabled the petitioner to defeat the successful candidate” (even assuming that 2,000 or so voters who did not vote had voted) (6) Petition dismissed.