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Counsel contended that the respondent did not state how many votes she got from the fifteen
polling stations which were denied. The respondent was entitled to request for the opening of the
ballot boxes from the fifteen polling stations and conduct a recount but she did not. Had the ballot
boxes been opened, the DR Forms would have been accessed.
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He clarified that there were no DR Forms at all and that the 2nd appellant was joined in accordance
with the law.
As regards errors in preparing DR Forms, he relied Hon. Oboth Markson Jacob V. Dr. Otiam
Otaala, Election Petition No. 38 of 2011 (supra) on the manner of subtraction.
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The duty of the 1st appellate court.
The duty of the first appellate court as was stated in the case of Father Nasensio Begumisa & 3
Others V. Eric Tibebaga, Supreme Court Civil Appeal No. 17 of 2002, is to subject the evidence
adduced at the trial to a fresh and exhaustive reappraisal, scrutiny and then decide whether or not
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the learned trial judge came to correct conclusions, and if not then this court is entitled to reach its
own conclusions.
Learned counsel for respondent argued that under ground 1 the appellants were accepting the fact of
giving a bribe. This is not the case because the court’s duty here is to look at all the pleadings from
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the start of the case to the end and make its own findings without isolations.
In doing so this court must be conscious of the fact that it had no opportunity to observe the
demeanor of witnesses at the trial stage. See also rule 30 of the rules of this court (Judicature Court
of Appeal rules) Directions SI 13-10.
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The burden of proof and standard of proof.
The burden of proof is cast on the petitioner to prove the assertions to the satisfaction of the court
that the irregularities or malpractices or non-compliance with the provisions and principles laid
down in the relevant laws were or is committed and that they or it affected the results of the election
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in a substantive manner in the election petition.
The evidence must be cogent, strong, and credible.
The standard of proof is on a balance of probabilities but slightly higher though lower than beyond
of reasonable doubt.
7