20161109 TZHC Arusha

- •"•':';"':'°":'.'""""'"' ";. ·,,,..,P,Wi•, •:. C':; "•··· .',;~'9' c: \C'. CC ·•.··,cri \)aie, /, ·,-,"'"~ ;,,.;#(-,'{,oi~ S" rc , •••_,,,,. •:.•• ·h>c•= ,e,:e•;•,c,¥•- IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRl~T REGISTRY OF ARUSHA :AT ARUSHA CIVILAPPEAL ! NO.. 33 OF 2015 . (Originating from Kiteto District Court at Kibaya via Election Petition No. ;J/2015) • I DISTRICT EX.ECUTIVE DIRECTOR, . i ST . ' SIMANJIRO DISTRICT COU~CIL. ' .............................. 1. APPELLANT ' WARDEXECUTIVE OFFICERS FOR I I MIRERANI, ENDIAMTU, LOI/BORSOIT, NABERERA, TERRAT, NGORJKA AND . . . I . . ' . . ND. NAISINYAI •......•.•.....•.•..•..•• . . -~i •.·••.•••••••••.... ~ .•....... ~- ..••••• 2 APPELLANT · I MWENYEKIT~ KAMATI YA ~UFAA............................. 3RD APPELLANT I VERSUS I GODFREY OCHIENG JAMES:................................... 1 sr RESPONDENT i · : · ND SAITOTI KARDUNI OYAYA.J.......................... ~ ........ 2 I RESPONDENT . I . RD SAID MDACHI •••••••••••••••••••••••••.••• ,11••···········••11••·······3 4 L ', ; -- RESPONDENT . •. ! . ~ WILLIAM SAIGURAN LAIZER................................4 RESPONDENT ! ' -· ··- ·· . ·. WILSON SYOKINO ......... ~ ... -1,"J"~'~ .... ;-...-.-....... ~-~~;~~-~~ .......... sTt:t_ RESPONDENT ' '' . . . ... - - . . - . ·,:,. CHARLES L~ZARO ••.••••.••••• l. ................................... 6TH RESPONDENT . . . i . . . . . ! TH . DICKSON KAFARANSA ••.•.• ..................................... 7 RESPONDENT 1 · · · , . TH LQBULU ~OL·L-eL11 ■ 11 ■ a ■ c ■ 1111 ■■ 1111 ■jmm ■ 11 ■■■■■■ 1111 ■ ■■■ 11 ■■■■■■■■ c ■■■•••·■ 11 ■■■ 8. · RESPONDENT GIDEON ABRAHAM SANAG0 .................................. 9rH RESPONDENT . : I . . , . . SIMON MWAKYUSA•.••••••. J· •••••••••••••• : ••••••••••• u . . . . . . . 10TH RESPONDENT I STA~llEY St'EVE~ SANJA.l ......................... ac••······ll1TH RIESPONID>ENli - .. . I . E\fARJIST WA.WA SHER!MA •.• ~ ••.••.•••••.••••..••••• u••····12TH RESPONDENT I' ... i-. 1 i ,.' ,. i I• • • . i . . . -.,_ .. JUDGMENT MASSENGI, J. The Appellant being aggrieved by the decision of the Resident Magistrate of Kiteto District Court at Kibaya in Election Petition No. 1/2015 th dated 30 day of June, 2015 appeals before this court basing on the following grounds; 1. That the trial Magistrate erred both in law and fact by failure to consider and analyze the evidence adduced by the Appellants and their witnesses. 2. That the trial Magistrate erred both in law and facts by not considering the evidence that the 3rd respondent (Appeal Committee) did due diligence before she could reach the decision, was against the law. 3. That the trial Magistrate erred in law by not considering and analyzing the gist of ''Kanuni za Uchaguzi wa Mwenyekiti wa Kijiji, Wajumbe wa Halmashauri ya Kijiji na Mwenyekiti wa Kitongoji katika Mam/aka za Wilaya, 2014" and "Mwongozo wa Uchaguzi wa Viogozi wa Ngazi za Vijiji, Vitongpji na Mitaa utakaofanyika tarehe 14 .. · - · ,.... -December; 2014"with regard to the election process. _. .. . .•... . . . ... On 2th day of July, 2016 my· learned brother Judge Mwaimu ordered the hearing of this appeal to be conducted by written submissions. However my brother retired before pronouncing the judgment. I took over the proceedings and proceeded to prepare this judgment. Before this court, the Appellants were represented by Louis Mwempazi, Solicitor while the respondents were represented by Mr. Haraka 2 · learned Advocate. This court ordered the hearing of this appeal to be conducted ·by way of writte~: submissions whereby the Appellants were ordered to ·file submission in ,chief by i0/08/2016, the respondents to file reply submissions by 17/0812016 and rejoinder if any to be filed by I 24/08/2016. Both parties filed/ their submissions accordingly. ' II The Appellants' counsel started his submission by giving a brief . I . i background of the case that this appeal has its root from the Election . i . . Petition No.1 of 2015 instituted by the Respondents herein at Kiteto District I Court.. The Appellants were/ the Respondents a~ the trial court "'."" Kiteto ' District Court at Kibaya - and/ the Respondents were the Petitioners. On . I . . th _14 day of December, 2014, /Simanjiro District Council conducted elections for leaders in various Local /Government (District and Urban) Authorities positions. The election was t6 be conducted according to Prime Minister's . i ' Office- Regional Administrati?n and Local Government, vide ·Goverrnn:,ent - Notice No. -323 of 05th September, 2014 - Kanuni ·za Ucha_guzi wa -- . ' Mwenyekiti wa Kijiji, Wajumbe wa Halmashauri ya kijiji na · I Mwenyekiti wa Kitongoj~ Katika Mamlaka za Wilaya za, Mwaka . 2014" (hereinafter refer~ed as 'Kaouni za Uchaguzi, 2014') The . .. . . .. . . . .. '. .. . i . th . . . - ~:,.., .•,. • .- ,1'"•:· ' .• Gover-nment-~Notice,.:No.-. •f2O:.,of :05. . :"S.e1,te11:1be.r,.. :-.ZOl~ ~~~1~--~-~'1L.:~~-; .~'.- -~, -~--'·"···. · · Uchaguzi wa Mwenyeki~i wa Kitongoji katika Mamlaka za Mijo . . 'i . . · Midogo za Mwaka, 2oi4" and "Mwongozo wa · Uchaguzi wa I . Viongozi wa nigazi za Vijiji, Vitoingoji nai Mitaa utakofa·nyika tarehe , I 14 <,December, 2014 referred as 'Mwongozo wa Uchaiguzi, 2014'). The instruments had an objective for the preparations, and guidance manage the said election. He further stated that the election was conducted, and the 1st, 2nd and 3rd Appellants herein were the Returning officer, Assistant Returning . Officers in respective Wards ,and Chairman of Election Appeal. Committee and the Respondents were 1.contestants via Chama cha Deniokrasia na Maendeleo -· CHADEMA disq~alified for lack of qualifications to contest in various positions of leaders~ip as it was stipulated in "Mwongozo wa i, Uchaguzi, 2014': "Kanuni za Uchaguzi, 2014," and "Kanuni za Uchaguzi wa Mwenyekiti wa Kitongoji katika Mamlaka za Miji Midogo za Mwaka,,2014" Following their disqualification, the Respondents instituted an Election I Petition case' No. 1 of 2015 at Kitetb District Court at Kibaya, challenging the outcome of the election resu.lts conducted on 14th December, 2014 in the Wards of Mirer~ni, Endiamtu, Loiborsoit, Naberera, Terrat, Ngorika. The decision was entered in favour of the Respondents and the Appellants ' having dissatisfied with the Qecision of the Kiteto District Court at Kibaya ' ' preferred this Appeal. ' i ' . ; Submitting on the first gr6und of appeal, the Appellants contended that I ..... ~.Jh~,;l~w.Js ..v~ry--.½,leac.th_at__ f~_iJqre to qmsid~r Jll~ _evider-1<::e of defense was- • ·- -- VO - .'• -~ '•, .. -, •••• ••· '• .,,, ~- 0 ••;C•••: ....... •• , .• •~~ . . . ,;:;.•,,";,..'!'.':1:•~~~,•-<I:'•:•"'?• . . . .,-,,1:; ..•-:-·--, ~--_,· •;:--: • . :~~:•;,;,.:-,,•,-__.•·.: O ~ fatal to the proceedings. He;submitted . ' that it is the duty of the court first to collate, analyze and assess the evidence. and referred this court to the ! . case of James s/o Buiolo and Another vs. Republic (1981) TLR 287. I He referred to the evidence! of PW1, PW2, PWS and PW8 and contended that Petitioners made vario.us .wrongs which disq·ualified them from the • election held on 14th December,, 2014 as divulged from their evidence. He , · -contended that Appellants did not deny the right or Petitioners, if ariy, to - · · 4 be voted and referred to Rule 11 (1) (a) to (h) of "Kanuni za Uchaguzi wa Mwenyekiti wa Kitongoji katika Mam/aka ya Miji Midogo za Mwaka, 2014" which provides for qualificatio:ns for contestants, that; 11 11 (1) (e) ''Mkazi yeyote wa Kitongoji anaweza kugombea ' uen~ekiti wa Kitongdji ikiwa:-ni Mkazi wa kawaida wa eneo la Kitongoji. '1 i He contended that the word! "Mkazi" has been construed and Interpreted "Mkazi" maan_a yake ni raia, wa Tanzania ambaye kwa kawaida anaishi ' . - 1 kwenye eneo la Kitongoji na :ambaye ama ana kaya au anaishi katika kaya au Taasisi iliyopo katika eneo la Kitongoji'~ He further stated that PW1 had · the duty to prove that · ''n/ raia wa · Tanzania ambaye kwa kawaida anaishi eneo la Kitongoji." He:··added that, it was not only for : 1 contestants but qualified ·voters had to .be registered as well and referred I i to item 8.5 of Mwongozo wa: Uchaguzi, 2014. He stated that PW? normally used to live in Lemkuna Village ' and has residence there and only vacated .. I to Ngage for agricultural purposes. He therefore· contended that the Appellants . . didn't contravene$: the provisions of ''Kanuni ya Uchaguzi, 2014, I . ·: '.'.Mwpr,gozo wa~,Uchagu4i,__ j{J.14"and Kanuniza-Uchaguzi-wa-Mwenyekiti wa . .. ' . •. . .,, : •. ··-'. ,~t"-. ; ·~···· - - ."'- ' . .,_ '. ' • f : • ~ • ,. • Kitongoji katika Mam/aka za, Miji midogo za Mwaka, 2014"and prayed for the appeal to be aHowed with costs and the decision of the trial court to be dismissed. In regard to the second ground of Appeal, he submitted that the trial '• ' Court Magistrate in reaching its decisfons averred that the 3rd Appellant had violated-the principle of Natiliral Justice "the right to.be heard" and referred to ·page. 19 of the trial Court Judgment. He contended that the right to be i i. . .5 11 heard Audi Alteram Partem" is not absolute right but it is a fundamental and referred to the book of H.W.R. Wade and C.F. Forsyth, "Administrative Law" 10th Edition, Oxford University Press, New York (2002) at page 433. He also referred the case of Lloyd V. MC Mahon [1987] AC 625 as cited at footnotes in that book. He contended that the House of Lords held the contrary, finding that in dealing with a group of forty-nine councilors acting collectively, none of whom asked to be heard orally, the auditors had adopted a procedure which was both suitable and fair in all the circumstances. He argued that the App~al Committee entertained more than 96 appeals on 29th November, 2014. It is provided in Mwongozo wa Uchaguzi, 2014 item 13.3 (b) that; "Kamati ya Rufaa itasikiliza na kutoa uamuzi kuhusu uteuzi wamgombea katika .muda usiozidi siku nne tangu siku ya kupokea rufaa yaani kuanzia tarehe 26 Novemba hadi ◄ tarehe 29 Novemba, 2014. 11 (Emphasis Added). He contended that the authority 9f Lloyd v McMahon (supra) cited in foot note in the book, supra, the House of Lords decid~d similar to their case. The·,Appeal Committee ·on 29th ·November,::2:QJ1 .. received ·more than ·96- ·· •· ··· . - appeals to be entertained by it. It was the deadline day. "Mwongozo wa Uchaguzi, 2014 under item 13.3 (b) provided four days to entertain appeal from 26th November to 29th ·November, 2014. It was submitted that, what the Appeal Committee did was proper according to the circumstances of the case. Urgent action and even in cases not involving urgency it may be equally clear that no hearing is required and referred to page 419 of the book by [-il.\.~"R. Wade (supra). He also argued that for the time limit of 6 '"' '.''-"-""'"~·, _,''".,,-"'"'"' ,-.-, _,,:·•:,_,,.,,,:7' "", -,r----,,_ ·-• .,,-,.T -'-, -"° -C'- - • ;:·- - -·:.-:; . .' ---"- - ---_--' ' - ---.,.., --' •----,"-"_.:; -::. '•"' "''o<,cr,-,,, -o'c-,-"' II .., 'i four days provided in the Mwongozo wa Uchaguzi, 2014; to entertain various appeals, intended the Appeal Committee to examine the forms and documents filed by the contestants, not their presence. He further stated that, fair hearing would make no different because the Committee had to base its decision on the forms submitted to it and that could not change the outcome of the results. He added that "Natural Justice" can be followed and applied when it is practicable to do so but in situations when it is impracticable to apply the principle of natural justice then it can be excluded and cited the case of Bihar School Examination .Board Vs Subhsh Candra AIR 1970 SC 1269. As to the inference drawn by the trial Magistrate that failure to appear to testify rendered the trial court to draw an inference that, they could give evidence contrary to t_heir own interest; it was submitted that section 114 (1) (3) of the Local authorities Elections Act, [Cap. 292 R.E. I 2010] provides that, the election petition shall. be presented within one month of the date of declaration of the result by the Returning Officer and the court shall hear and determine each election petition within eighteen m~n~hs from ·the_ date_ qf presentation of election petition. He stated that, go~er~ment entity is not Uke' nat.ural person: If was not p~ssible to·britig aw· witnesses from different wards in the single day. It could paralyze not only the activities of the days but _also its resources including money to . transport, feed and accommodate all officers in respective areas of the Simanjiro District who could travel to Kiteto District Court. It could not be achieved basing on scarcity of money and other resources as already it has been spent in election. He added that, it was clearly that the rush of Trial Court to determine the case buried the· Appellant's· justice; Therefore, 7 ' prayed the second ground of appeal to be allowed with costs and the decision of Kiteto District court to be dismissed. Submitting on the third ground of appeal, it was contended that the trial Magistrate erred in law by not considered and analyzing the gist of Kanuni za Uchaguzi wa Mwenyekiti wa Kijiji, Wajumbe wa Halmashauri ya Kijiji na Mwenyekiti wa Kitongoji katika Mam/aka za Wi!aya, 2014 and Mwongozo wa Uchaguzi wa Vior,gozi wa ngazi za Vijiji, Vitongoji na Mitaa utakaofanyika tarehe _14 Desemba, 2014 with regard to the election · process. He stated that according to paragraph 2.0 Mwongozo wa Uchaguzi, 2014"which provides, Mwongozo huu unakusudia kutoa mae!ezo yatakayowezesha kufanyika ·kwa maanda!izi yatakayofanikisha uchaguzi huo'~ and paragraph 3.0 pro~ides that; kutangaza majina ya vijiji vitongoji, mitaa na mipaka ya maeneoyake:- . Taratibu za uchaguzi zinaelekeza kuwa kila msimamizi wa uchaguzi anatakiwa kutangaza majina ya maeneo na mipaka ya kila mtaa, kitongoji au kijiji kwa wakazi wa maeneo hayo katika muda wa siku 50 kabla ya siku ya uchaguzi ·kwa hali hiyo matangazo ya mipaka yatatolewa na kila 'haltnashauri si Zqidi ya tarehe 25 Octoba,-2014. . • • . .. - ..., . .· ;!•'f •.• . ,#1 · - - - . -,~ ·- ·· - • •• • .. _ , . • • · . ... . • •• Utaratibu huu una lengo · la kuwawezesha wakazi wa maeneo hayo kuyatambua na kufahamu wanakowajibika na watakotakiwa kupiga kura. Kwa tafsiri ya painoja kuhusu neno majina ya maeneo ya mipaka maana yake .ni orodha ya vijiji, · vitongoji na mitaa i!iyotqngazwa kwenye Gazeti la Serikali na haimaanishi ma~lezo ya mipaka ya main/aka hizo. .· 8 Under rule 6 of Kanuni za Uchaguzi wa Mwenyekiti wa Kitongojo katika mamlaka za miji midogo wa mwaka, 2014 provides. Utafanyika uchaguzi wa mwenyekiti wa kitongoji katika kila kitongoji na kila msimamizi wa uchaguzi atatangaza majina ya mipaka ya vitongoji vilivyoko katika eneo la mamlaka ya mji mdogo husika katika mahali pa matangazo ya uchaguzi siku hamsini (50) kabla ya siku ya uchaguzi. Referring to the case of P,rince Bagenda Vs Wilson Masilingi and Another (supra), it was stated that the respondent did not reach the . ~ .. . . burden of proof required by law, to the satisfaction of the court. The Respondents had the duty to prove that the Appellants contravened the provisions of Kanuni za Uchaguzi wa Mwenyekiti wa Kitongoji katika mamlaka zamiji midogo wa Mwaka 2014. Citing the case of Nadimo Vs Independent Electoral and Boundaries Commission and Others (2014) 1 · EA at page 359 and the case of loho Vs Nyange and · Another (~008) 3 KLR; it was stated that even if this court could find out if any, that there were irregularities in the said election, the same . ! cannot be ·and or treated as things which could affect the result of the said · ·: --election as wrongly decided by the trial magistrate. Therefore, -prayed this~--·- - , "-•·•'"i~- .... ~,,~~. . . . - ~ •. •••-·- .:.,·•·; ,1 • r appeal be allowed with costs. In rebuttal, the· respondents' counsel responding to the first ground . . of appeal1 . submitted that it was his expectation to see the Appellants' counsel dwelling on evidenc~ that escaped the mind of the trial Magistrate . . . which eventually lead to wrong analysis of the evidence ( as he allege) in order to guide . ·. the court-in ., reaching its reasoning and _decision thereof. He contended . that, however, to the contrary what he had dwelt with. . . is an 9 irrelevant argument. He stated that it would have been practical to show .the evidence which was not taken into account by the trial Magistrate in - ~ ' . . - . ~ reaching judgment appealed to. co·nversely he ought to have further shown how the trial MagistrJte reasoned wrongly to the detriment of the Appellants t; the extent of ~rriving to the judgment and orders they are I appealing against. He stated that Appeal Committee entertained the appeal for or against the petitioner Jithout giving them right to either argue for or against their appeals. This wJs ·a breach to fundamental principle of natural justice.and t?erefore their defision is as provided in the case of Tang Gas Distributors Limited V Mohamed Slimu Said and 2 others, Civil Rev . . . ' I No.68/ 2011,. where the right to be heard was held· to be a mandatory requirement i~_.. any decision reached thereof and where it is violated it renders' such a'· decision to b.e a nullity. He therefore argued that, the trial . . I Magistrate reasoned logically arriving at the decision · and judgment ~ appealed agafrist. He conten~ed that there is a well established principle in .. election petitions that justiJ the annulment of the election petition and cited -the case of The Hon! Attorney General and others Vs Walid l Amani Kabourou [1995] 2 LRT 757. He contended that, it is .a basic ! • • . .. _;_ . . . - - • - - ·. . . • • i- . •· -,._ .. .. . . .. :... -. . · • .. . .... . .. . . ._. · -· · .-,·::.- ;' ·C:onstitutional-right in terms of the provision·~of:;-Article,.21{i}..,and~z1~(J)-,of ~-.:. ,-,:-..:.,:...~-: : the Constitu.tion of the Unit~d Republic of Tanzania, ·1977 (as amended . I . . . time from time) that, the only way in which every citizen in the country is i~volved in the' governance hf this country is through election in which, in the first instan·ce is to conteJt artd in the second place is to use his vote i.n . the ballot _box. If there is a1ything which to the _requirement of article2i . (1),_ (3) taint the whole proc~ss; that was the basis of tnal Court evaluation . .. I. of the evidence and candidly shown the instance as. rightly observed. _He 10 (·_·~·. ·-~~~--~~1i-_··:_,.;;~,-.';~-~~:,~-f:~:. ~·;.;::{.:.,>. ·: ·,~:····•·· ·.-.:··. Y,· · ;j:4;;,·,;7~;F; +;·'._;::=~~-~-~-,;.}::~,J~~-ttf:ft-;",.,:~.,::,·.... _.-__,. _~-- -· ·•· . ·.-.-~ .•·.,. "-·-'"· 2.--:::r·.,.•::, \/.;<./~--- , I . . . . . ·- . -- - . - . ~ . contended that, the violation of the election rules, and any shortcoming found to have taken place in the electoral process, (before during and after ····· election) should render the election void, irrespective of the extent of the violation or the margin of victory. Fair and free elections should be the central and abiding concern of law in a democracy. Therefore, contended that the submission by Appellants with respect to this ground have no merit and be dismissed with costs. Responding to the second ground of appeal, it was submitted that the trial Magistrate condemned the reasoning of the Appeal Committee for not according the respondents' the right to appear and defend the objection raised against them. This is where trial Magistrate quoted with approval the case of Tang Gas Distributors Limited (supra) and the case . .of Ndesamburo Vs Attorney General (supra) which call ·. courts to accord ; parties right to be heard before . . determining their rights . .. and duties. . He further stated that, because the Appellant intended to submit on how the 3rd respondent who is the appeal committee had done due diligence at arriving at its decision of condemning unheard the respondent, ought to have shown how the process of the said due diligence _hav~. been arrived at __ .~~d f~rth~~ ~rgwes· on how th·e said pr~-ce~~"'j~·stifie~: what ._he. thinks fit to. Therefore, prayed this ground. as well to be dismissed as it was not argued . . . and alternative option thought of submitting that the right to be heard is not absolute is not maintainable in law. In reply to. the third ground of appeal, he submitted that the · Appellant stated nothing with re_gard to appeal as whether the said Kanuni . za Uchaguzi _were misinterpreted or escaped the mind ·of the . trial 11 Magistrate to the extent of prejudicing the Appellant. He contended that . ' the issue in ·this ground of appeal is whether ·the said Kanuni za Uchaguzi v,;ere interp~E!ted wrongly to /the extent of giVing negative judgment for the appellant. He therefore prayed this appeal be dismissed, the decision and orders of th~ trial Court be sLstained with costs. The Appellants filed a rejoinder as well which I have gone through it and considered the same. _ . I have considered the submission of both parties and examined the . I . , - records of the trial court. In regard to the first ground of appeal that the !. l trial Magistrate erred . bothl in law and fact by failure to consider and i analyze the evidence adduded by. the AppeUants and their witnesses; the ' .. I . Appellants' counsel referred to the evidence of PW1, PW2, PWS and PW8 I I . and contended that petitio~ers did various wrongs ·which caused them to be disqualified from the ele~tion held on 14th December, 2014. The wrongs . . ! which are referred by the Appellants' counsel is that PW1, PW2, PWS and PW8 did-not prove that thJy were residents of the places which th.ey were . i contesting -w~ile Rule 11 (1!) (e) of Kanuni za ·uchaguz/wa Mwenyekiti wa 11 l I . · 'i.: :·. ~ --- ··. Ki{ongoji katika.::Marhlaka Iya Miji Midogo za Mwaka, 2014!~-required the· ............ ; .: ,' I ,• I • • f'~~=-:>1,.,::7...:•"J;"-v ,•.:_•:,.-,-. ... ~••;-••• ~ .... • - .• _ •. ..;...._., .... .J • •• • •~ = ;,. ; contestants to be· residents of the places which they were contesting. · · 1- Before going further, I woJld like to correct the Appellants' submission that. the re.levant rule which r~quired the contestants to be residents of the place whi~h they were co~testing is rule 12 (1) (e) of Kanuni za· Uchaguzi · . - I • wa Mwenyekiti wa Kljiji, Wajumbe· wa Halmashauri ya Kijiji na .Mwenyekiti .: _., :·. wa Kitongoji katika fvfamllka za Vlfilaya za Mwaka, 2014 hereinafter will be . _12 · 11 referred as the rules, 2014". Rule 12 (1) (e) of the rules, 2014 states that; 11 Mkazi yeyote wa Kitongoji anaweza kugombea uenyekiti wa Kijiji au ujumbe wa Halmashauri ya Kijiji au uenyekiti wa Kitongoji ikiwa:- (a) ................... . •....•.••..............•••.. (e) ni mkazi .wa kawaida wa eneo la Kitongoji" (emphasis is mine) As shown apove, one of the qualifications for contestants in various positions listed in the rules, is that the contestant must be a resident in the ; ~ respective place. Having gone through the records, it shows that there was no sufficient evidence to prove that PW1, PW2, PWS and PW8 were residents in their respective places and that is among the reasons which disqualified them from election. At no point during the hearing before the tria·1 court, PW1, PW2~ PWS and PW8 proved to oe residents of the places which they were contesting and the trial Magistrate never directed his mind on that partic~lar point. Considering the qualifications contained under rule 12 (1) (e) of the rules, 2014 it appears that Appellants did not contravenes the rules ''Kanuni za Uchaguzi wa Mwenyekiti wa Kijij, Wajumbe wa Halmashauri ya Kijiji na Mwenyekiti wa Kitongoji katika Mam/aka za Wi/aya za Mwaka, 2014'~ If the trial Magistrate could have considered . and _ analyzed the evidence of P\N1, PVv2f PWS and PW8 it could reach to_ a fair 13 ·.' finding that · the respondents were properly disqualified for being non residents of particular places which they were contesting. On that regards, I therefore allow the first ground of appeal. In regard to the second ground of appeal that the trial Magistrate erred both in law and facts by not considering the evidence that the 3rd respondent (Appeal Committee) did due diligence before she could reach the decision, was against the law; DW1 in his testimony before the trial court stated that the Appeal.Committee started its duty on 26/11/2014 and ended·on 29/11/2014. Theireceived about 9Oappeals and they dealt with them all on 29/11/2014. As a member to that Committee, they did their job diligently in accordance to the instructions. The Appeal Committee was guided by "Mwongozo wa Uchaguzi, 2014"which gave instructions on how, to perform their duties. Item 13.3 (b) of "Mwongozo wa Uc~aguzt 2014" provides that; I( "Kamati ya Rufaa itasikiliza na kutoa i.Jamuzi kuhusu uteuzi wa mgombea katika muda usiozidi siku nne tangu siku I,. I • • .. ya kupokea rufaa. yaani kuanzia tarehe 26 · ~ . ·• ·,.... _· • November , . hadi , I • tarehe 29 • Novemba- .'· . ·. : : . ,, - ··2014/' . .• (emphasis supplied)· According to the evidence of DW1, Appeal Committee started its duty on . 26/11/2014 and ended on 29/11/2014. and managed to hear all the·· a_ppeals filed which were more than 90 ap·pea.,is. On that re.gards, it is . ·. obvious that . the Committee performed their duty in accordance to •· 1 ~~wongozo wa Uchaguzi, 2014" which guided them and accordance to DW1, they performed their .duty dHi9ently . and in accordance to. the· .; . 14: instructions. Basing on that, I therefore find that the Committee performed their duty in accordance to the law which guided them hence the second ground of appeal has merits as well. Coming to the third ground of appeal that the trial Magistrate erred 11 in law by not considering and analyzing the gist of Kanuni za Uchaguzi wa Mwenyekiti wa Kijiji, Wajumbe wa Halmashauri ya Kijiji na Mwenyekiti wa Kitongoji katika Mam/aka za Wi/aya, Vitongoji na Mitaa utakaofanyika tarehe 14 Desemba, 2014"with regard to the election process. It is clear that "the 'election of Village Chairman, Members· of Village Council and Hamlet Chairman in District Authorities, Hamlet and Streets which was conducted in 14th day of .December, 2014 was guided by 11 Kanuni za Uchaguzi wa Mwenyekiti wa KiJiJ( ·Wajumbe wa Halmashauriya Kijiji na Mwenyekiti wa Kitongoji katika M~mlaka za Wi!aya za Mwaka, ?014'~ The trial Magistrate in its judgment found that there were irregularities in the ! election conducted on 14th day of ,b.ecember, 2014, and pointed out rule 4, 6 and. 31 (1) (b) of "Kanuni za Uchaguzi wa Mwenyekiti wa Kijiji, Wajumbe wa Ha!mashauriya Kijiji ·na Mwenyekiti wa Kit6ngoji katika Mam/aka za ·wi!?,ya za Mwaka, 2014" but the . trial . . . . .• . .. Magistr_ate failed to.. analyze ' : . ,. properly .. how the said rules were contravened and affected the respondents or ·how contraventions of the said rules __led the respondent's being disqualified from election process. The respondents were required to prove to the satisfaction of the court that the appellants. contravened the provisions of 11 Kanuni·za Uchaguzi wa Mwenyekiti wa Kijiji, Wajumbe wa Halmashauriya Kijiji na Mwenyekiti wa Kitongoji ·katika Mam/aka za Wi!aya za Mwaka, .. 2014" but the records reveal that the respondents did various wrongs '. which led to their disqualification from election process as already stated while addressing the first ground of appeal. Basing on the above, I therefore find that this appeal has merits and I hereby allow it by quashing and set aside the decision of the trial court which nullified the election of the Village Chairpersons, hamlets, Village Council Members in their respective places held on 14/12/2014. Order accordingly. SGD: F.H. MASSENGI . JUDGE 09/11/2016 Judgment delivered by me today 09/11/2016 in the presence of Mr . Louis Marko Solicitor for the Appellant and Mr. Haraka, Advocate for the ~ Respondents and the presence of .Respondents and the presence of Respondents as shown on the Coram above. A.K. RUMISHA. DEPUTY REGISTRAR 09/11/2016 Right of App~al and procedures thereo~re explained. A.K. RUMISHA D'EPUTY REGISTRAR 09/1.112016