Petition. Their mere attachment of the voter’s card of one’s affidavit is not evidence
that they did not cast their votes.
Illegible voters
Section 19(2) of the Election Commission Act provides:
“No person shall be qualified to vote at an election if that person is not
registered as a voter in accordance with article 59 of the Constitution”.
Counsel for the appellants contend that the allegation of illegible voters was not
pleaded for in the petition and accompanying affidavits.
They submit that the
respondent made a general allegation that the 1st appellant’s officers and agents
allowed persons not in the Register and not having voter’s cards to vote. In support
of their arguments, counsel pointed out that at page 40 of the judgment, the learned
trial judge made the following finding:
“In the petitioner’s affidavit, general allegation of illegal acts and illegal
malpractices were made. No specific averment on this allegation and no
polling station or person was named”.
Having made the above finding, appellants’ counsel contend that the learned trial
judge should not have accepted the evidence of Nanjovu Justine that L.C.I Chairman,
Lukomu came several times with persons not in the register but were allowed to vote.
That not withstanding, counsel submitted that the learned trial judge still considered
the affidavit of Nanjovu Justine and made a finding that her affidavit was not
rebutted.
According to counsel, Nanjovu’s affidavit was rebutted by the affidavit of Henry
Lukomu in support of the 2nd appellant in which he denied the allegation. Further,
counsel pointed out that Nanjovu claimed to have counted 17 people who had voted
and that one Bengo George intervened but Bengo did not swear an affidavit to that
effect.
As regards the ferrying of 69 students from Green Ville Secondary school, who were
under age and without voter’s cards but were allowed to vote at Takkajunge Polling