Mia v Malola & Malawi Electoral Commision (Election Petition 58 of 2025) [2025] MWHC 24 (11 November 2025)

a Cr, , £ . “tf “Uy ~ =F 2 Ra» ty ? REPUBLIC OF MALAWI * Gy ty Sinn IN THE HIGH COURT OF MALAWI vp, CIVIL DIVISION PRINCIPAL REGISTRY ELECTION PETITION NUMBER 58 OF 2025 (Before Honourable Justice ALIDE) IN THE MATTER OF THE PRESIDENTIAL, PARLIAMENTARY, AND LOCAL GOVERNMENT ELECTIONS ACT. -AND- / IN THE MATTER OF THE 16TH OF SEPTEMBER, 2025 PARLIAMENTARY ELECTIONS FOR CHIKWAWA MKOMBEZI CONSTITUENCY IN CHIIKWAWA DISTRICT. (Section 100 of the Presidential. Parliamentary and Local Government Elections Act and Order 19 Rule 13 of the Courts (High Court) (Civil Procedure) Rules) 2017 BETWEEN: ABIDA SIDI MA cisccssccossssccsecnssssessesesensisesosees cscevmensouvesnesesens eoneeeen sossxoanvestbiiiie PETITIONER -AND- LLOYD LAXTON ENOS MALOLA........ Wi tasaahcesasianas aes spiccnreneevexsnnes 1ST RESPONDENT MALAWI ELECTORAL COMMISION.....ccssscorssssrscossnserssnesssesesesee ssseeeeeeees2ND RESPONDENT CORAM: HON. JUSTICE J. ALIDE Messrs. A. Kapoto and A. Mandiwe, of Counsel for the Petitioner Messrs. K. Mchizi, of Counsel for the 1st Respondent Mr. E. Chapo, of Counsel for the 2nd Respondent Ms. M. Kachimanga, Court Clerk Ms. H. Chiusiwa, Senior Court Recorder JUDGEMENT ALIDE, J. 1. INTRODUCTION [1] On 6" October, 2025 Hon. Abida Sidik Mia (hereinafter referred to as “the Petitioner”) brought a petition under Section 100 of the Presidential, Parliamentary, and Local [2] [3] [4] [5] Government Elections Act, 2023 (herein after referred to as “the Act”), as read with Order 19 Rule 13 of the of the Courts (High Court) (Civil Procedure) Rules) 2017 (hereinafter referred to as “the CPR 2017”). The petition is against Lloyd Laxton Enos Malola (hereinafter referred to as “the 1st Respondent) and the Malawi Electoral Commission (hereinafter referred to as “the 2nd Respondent.”). The Petitioner is seeking the following orders from this Court: a. nullifying the declaration of Lloyd Laxton Enos Malola as the winner of the Parliamentary Elections for Chikwawa Mkombezi Constituency made by the 2nd Respondent on or about the 30th of September, 2025 for undue return and undue election. b. nullifying the declaration of Lloyd Laxton Enos Malola as the winner of the Parliamentary Elections for Chikwawa Mkombezi Constituency made by the 2nd Respondent on or about the 30th of September, 2025 for contravening Section 41 of the Political Parties Act, 2018. c. directing that the 2nd Respondent conducts fresh Parliamentary Elections in Chikwawa Mkombezi Constituency, and d. costs of the action. The Petition also contained an allegation that the 1st Respondent and members of his campaign team were allegedly campaigning outside the official campaign period. However, this was not referenced in the prayer for reliefs sought by the Petitioner. The petition was supported by a sworn statement filed by the Petitioner herself, and supplementary sworn statements filed by Sabex Tsoka, Grasham Chilonga, George Taulo, Lovemore Nijanji, Exon Moffat, Palimau Ndalama, Thom Dingeresi, Gabriel Dombe, Alfred Limited and Henderson Mzati. The Petitioner also filed skeleton arguments supporting her position accordingly. Both respondents opposed the petition. The 1st Respondent opposed the petition on two grounds; firstly, that the Petitioner has failed to prove the irregularities alleged, and that if any irregularities have been proved, then the Petitioner has failed to prove that the said irregularities affected the results of the elections; and secondly, that the petition has been improperly brought before this Court on the alleged issue of giving out of handouts, and the campaigning outside the official campaign period. In that regard, the 1 Respondent has filed a sworn statement in reply and opposition to the petition. A further 4 supplementary sworn statements have been filed by Amos Soza, Elton Kandiero, John Farao Malunga and Nelson Stenalla Mapute. The 1** Respondent has also filed skeleton arguments accordingly. [6] [7] [8] [9] The 2nd Respondent opposed the petition contending that the alleged irregularities in the voting process raised by the Petitioner were factually incorrect. The 2" Respondent also argued that the alleged giving out of handouts and campaigning outside the campaign period were offences under the law and that being the case, they cannot be acted upon until the due process of the law is completed before a competent court of law. In that regard, the 2"? Respondent filed a Reply to the Petition supported by two sworn statements by the 2" Respondent’s Legal Counsel, Mr. David Matumika Banda, and the Chairperson, Justice Annabel Matalimanja. The 2" Respondent also filed skeleton arguments accordingly. The Court heard the Petition on 29" October, 2025 with the evidence presented by way of sworn statements. The Petitioner filed a Notice to Cross Examine Counsel Banda and proceeded accordingly during the hearing petition. At the end of the hearing, the parties were allowed to present their submissions in writing. THE PETITIONER’S CASE It was the Petitioner’s humble petition that she contested as a candidate for the Malawi Congress Party for election as a Member of Parliament for Chikwawa Mkombezi Constituency in the Presidential Parliamentary and Local Government Elections, which were held in Malawi on 16 September, 2025. At the end of the process, the 2nd Respondent announced the results of the elections on 30 November 2025 declaring the ist Responded as the winner. It is the Petitioner’s evidence that before the declaration of these results, the Petitioner, through the Secretary General of the Malawi Congress Party, wrote a letter to the 2nd Respondent complaining about alleged irregularities that occurred during the electoral process and requested the 2nd Respondent to address the said complaints, and to conduct a physical audit of the vote. The Petitioner particularised the alleged irregularities as follows: (a) Alleged fake duplicate result sheets The Petitioner alleged that the duplicate result sheets that were presented to her monitors appeared to have been filled in original handwriting, contrary to standard practice where the duplicates would bear imprints or have clear indication of their duplicate nature. To that effect the Petitioner exhibited copies of the said result sheets as “ASM 1”, (b) Alleged lack of presiding officer’s signature The Petitioner alleged that the duplicate result sheets that were presented to her monitors did not bear the Presiding Officer’s signature thereby compromising the authenticity and legitimacy of the submitted results. The Petitioner exhibited copies of the said results sheets as “ASM 2”. [10] [11] [12] (c) Alleged inflated valid votes The Petitioner alleged that the number of valid votes recorded in the submitted result sheets were inflated in favour of the 1** Respondent thereby exceeding the total number of valid votes. The Petitioner exhibited copies of the said results sheets as “ASM 3”. (d) Alleged recording of result sheet recorded by a single person The Petitioner alleged that some result sheets were signed by a single individual contrary to standard practice thereby compromising the authenticity and legitimacy of the submitted results. The Petitioner exhibited copies of the said results sheets as “ASM 3”, (e) Alleged duplicate result sheet drawn in original handwriting The Petitioner alleged that some duplicate result sheets were in the same original handwriting as the primary sheets, which was highly irregular and indicative of fraud. To that effect, the Petitioner exhibited copies of the said result sheets as “ASM1”. It was the Petitioner’s further evidence that the 1** Respondent and members of his campaign team continued to campaign and were giving hand out materials for the Democratic Progressive Party, after the closure of the campaign period. She further stated that the 1% Respondent and members of his campaign team were giving cash handouts to voters outside polling centres as they were going to cast their vote with an express message that the voters should vote for the 1* Respondent was contrary to Section 41 of the Political Parties Act, 2018. It was her testimony that the material and cash handouts, and further campaigning on the polling day rendered the voting process not to be free, fair and credible thereby undermining the integrity of the results of the election. She submitted that this was against her legitimate expectation of a free and fair election. It was her further evidence that despite having presented the foregoing irregularities to the 2nd Respondent within the prescribed time, the 2™ Respondent unlawfully proceeded to dectare the 1 Respondent as duly elected Member of Parliament for the Constituency. She argued that in the premises, the 2"! Respondent unduly declared the 1° Respondentas winner of the Parliamentary Elections for the Constituency and called for the nullification of the same. In support of her position is the evidence presented by Sabex Tsoka and Grasham Chilonga, in two supplementary sworn statements respectively. Itis in evidence that the [13] [14] [15] [16] two were Malawi Congress Party monitors at Nabisi and Beka F. P. School polling centres respectively. It was their evidence that at the end of the voting process, the Presiding Officers at their respective poling centres did not sign the results tally sheets. They exhibited copies of the said results tally sheets as “ST1” and “CG1” respectively. It was the evidence of Thom Dingeresi in his supplementary sworn statement that on the polling day, he was a monitor of the Malawi Congress Party stationed at Saindi Polling Centre. He states that on the day, he saw the 1st Respondent’s monitors, namely, Geophlis Samba, Lucious Samson and Christopher Sadya campaigning and telling voters to vote for the 1% Respondent. Having seen them doing that, he reported the matter to the Presiding Officer who apparently ignored him but later acted when he mounted pressure on him. In his supplementary sworn statement, George Taulo states that he was a monitor for Ben Khuleya, another candidate in the elections, and was based at Goma F. P. School but was also checking on the nearby polling centre of Malikopo F. P. School. He stated that on the polling day, he found John Farao Malunga, one of the 1** Respondent's members of campaign team, sitting under a tree about 50 metres from Goma Polling Centre. Apparently, he was distributing money to voters who were on their way to Goma Polling Centre telling them to vote for the 1st Respondent. He stated that one of the women who had received the money told him to go and get his share from the said Mr. Malunga. It was his evidence that he found the same Mr. Malunga on another route leading to Goma Polling Station as he was going to Malikopo Polling Station allegedly distributing cash notes of K2,000 and K5,000 to voters with a message to vote for the 1* Respondent. The supplementary sworn statement of Lovemore Njanji is to the effect that he was a monitor for one Mr. Ben Khuleya and was assigned to monitor at Linga and Nkavu FP. Schools. On the day of the elections, he saw a Mr Stenala Mapute, the 1** Respondent’s monitor giving K2, 000 cash notes to two women going at Nkavu F. P. School polling centre to cast their votes. When he allegedly asked him why he was giving the cash, he was told that it was none of his business. When he asked the women, they allegedly told him that they were given the money to vote for the 1 Respondent. It was his evidence that he proceeded and reported the incident to a Mr. Khuleya, one of the candidates, The supplementary sworn statements of Exon Moffat and Palimau Ndalama are to the effect that they were monitor and driver for Mr. Ben Khuleya respectively. They stated that they were assigned to deliver food to all their monitors. It was their submission that on 15 September, 2025, they found the 1** Respondent's campaign team members, namely Amos Soza and Bansten Mchingama, distributing K5, 000 notes to people at Nsinja F. P. School. When they recognised them, the two jumped onto a motorcycle and run away. He testified that they tried to follow them on a motor vehicle but could not ! [17] [18] [19] [20] [21] catch up with them as they used routes that could not accommodate motor vehicles. They allegedly reported the incident to Mr. Khuleya. lt was their further evidence that on 16 September 2025, they found Elton Kandiero and Gerald Nyaika, monitors for the 1% Respondent, distributing cash to people heading to Saopa Polling Centre to cast their vote. They confronted the two but were told that it was none of their business, and then they proceeded to Saopa polling centre. The supplementary sworn statement of Gabriel Dombe, a monitor for Malawi Congress Party is to the effect that the Presiding Officer at Tevet Polling Centre allowed one Wongani Mzondo, a NICE monitor, to assist voters with challenges. As she was doing that the 1* Respondent’s monitors, namely Njere Santu and Emerson Siyamphanje allegedly took advantage of that and started campaigning at the polling centre in the process of the voting. day. The supplementary sworn statements of Alfred Limited and Henderson Mzati state that they were the 1st Respondent’s Area Chairman and Secretary for Ngoza area respectively. They alleged that on 15 September, 2025, the 1st Respondent went to Sande Village, T/A Ngabu in Chikwawa and called for a meeting where he was distributing K20, 000 cash and vouchers to the villagers. Mr. Limited had prepared a list of recipients of such items which was exhibited as exhibited as “AL 1”. The vouchers were exhibited as “AL 2” and “HM 1” respectively. The Petitioner argued that from the foregoing there was strong evidence of existence of irregularities that marred the parliamentary elections in question. She argued that there was Clear evidence of bribery and corruption and the fact that the 1st Respondent and his agents were campaigning long after the closure of the campaign period including on the polling day. She submitted that this affected the results of the election and pointed out that the issue was not simply about the numbers alone but the qualitative environment within which the poll occurred. The Petitioner called upon the Court to look beyond the mere tallying of the results and proceed to determine the quality of the electoral process and the context since they also mattered as much as the numbers. The Petitioner submitted therefore that having demonstrated the irregularities, and questioned the quality of the election, the Court ought to grant the Petitioner the remedies prayed for, with costs of the action. THE 1ST RESPONDENT’S CASE In response to the Petitioner, the 1st Respondent confirmed in his sworn statement in opposition to the petition that he had seen the complaint that was launched by the Petitioner to the 2” Respondent in respect of the elections. He stated that some of the alleged illegalities raised in the petition were never raised in the complaint to the 2” Respondent. The 1% Respondent denied having given cash handout to anyone or instructing anyone to distribute the same on his behalf, before and during the voting day. [22] [23] [24] [25] [26] He denied having ever campaigned outside the official campaign period. It was his evidence that contrary to the allegations made by the Petitioner, he and his team stopped campaigning on the night of the 13 of September, 2025. The 1st Respondent further submitted that he knows of no complaint that was lodged with any relevant authority alleging that he and his team had committed offenses under the Political Parties Act. He stated that he would have been glad to proceed and defend himself accordingly. He further confirmed that he had seen the results sheets that were attached to the petition and confirmed that all, but only one, were duly signed by the Petitioner’s own monitors verifying the contents of the result sheets. In his supplementary sworn statement in support of the ist Respondent's position, it was the evidence of Elton Kandiero that he was a monitor for the Democratic Progressive Party on whose ticket the 1st Respondent stood on the 16th of September Parliamentary Elections for Chikwawa Nkombezi Constituency in Chikwawa District. He denied the allegations contained in the supplementary sworn statement of Exon Moffat in support of the petition. He stated that on the material day, he arrived at his assigned polling station, Saopa, at around 5:30 in the morning and stayed there until after counting of the votes was concluded around 10 o’clock in the evening. He denied having given any cash to any person as alleged by the said Exon Moffat or at all. He further denied having met Exon Moffat on the day. Amos Soza, in his supplementary sworn statement, also confirmed that he was a monitor for the Democratic Progressive Party on whose ticket the 1st Respondent stood in the 16th of September Parliamentary Elections for Chikwawa Nkombezi Constituency in Chikwawa District. He denied the contents alleged in the supplementary sworn statement of Exon Moffat and stated that on the date of arrival of polling materials, 15 September 2026, he was at home at Thonje attending to his sick child. In his supplementary sworn statements, John Pharaoh Malunga confirmed that he was a monitor for the Democratic Progressive Party on whose ticket the 1st Respondent Stood in the 16" of September Parliamentary Elections for Chikwawa Nkombezi Constituency in Chikwawa District. He disputed the allegations in the supplementary sworn statement of George Taulo and stated that on the polling day, he reported at Goma Primary School Polling Station at around 5 o’clock in the morning as a monitor and Stayed there until 6 o’clock on morning of 17 September 2025. He confirmed that he personally knows the said George Taulo and stated that he never met him on the material day. He further testified that the said George Taulo was not a monitor at the center as alleged in his supplementary sworn statement. In his supplementary sworn statement, Nelson Stenala Mapute, confirmed that that he was a monitor for the Democratic Progressive Party on whose ticket the 1st Respondent stood in the 16th of September Parliamentary Elections for Chikwawa Nkombezi + [27] [28] [29] [30] [31] Constituency in Chikwawa District. He confirmed having read the supplementary sworn statement for Lovemore Njanji and denied the contents thereof. He stated that on the material day, he arrived at Nkavu polling Centre at 5 o’clock in the morning and only saw the said Mr. Njanji arrive at the polling station as a voter around 8am and he left immediately after voting. In his arguments, the 1st Respondent further argued that the petition had been improperly brought before this Court and ought to be dismissed outright. He observed that the first part of the petition contained alleged irregularities that were initially duly reported to and dealt with by the 2nd Respondent. However, the second part of the petition contained issues termed as “illegalities” which were not part of the complaint that was sent to the 2nd Respondent. In essence, these were new matters that came straight before the Court. He argued that the petition having been brought under Section 100 of the Act ought to have dealt with only those issues that were coming as an appeal from the decision of the 2nd Respondent, and not as new issues. He argued that the inclusion of new issues that were not before the 2nd Respondent rendered the petition, or part thereof, incompetent and called for its dismissal, with costs, accordingly. The ist Respondent argued that even if the Court finds that this part of the petition has been properly brought, the Petitioner had failed to prove the irregularities or illegalities alleged. He submitted that even if the Court was going to find the there were some irregularities as alleged by the Petitioner in the first part of the petition, the Petitioner had failed to prove that the said irregularities affected the results of the elections. THE 2"° RESPONDENT’S CASE In response to the petition, the 2nd Respondent filed a Reply to Petition and supported the same with two sworn statements filed by its Legal Counsel David Matumika Banda and Chairperson, Justice Annabel Mtalimanja, respectively. The 2nd Respondent denied the alleged irregularities and stated that it complied with the provisions of the Act in so far as the electoral process was concerned. It was the 2nd Respondent's view that the petition was embarrassing as it disclosed no complaint. The 2nd Respondent argued that since the Petitioner had filed an appeal under Section 100 of the Act, they must satisfy the requirements of Section 100(3) of the same. In his sworn statement Counsel Banda started by explaining that the process of determination of a parliamentary election is based on record of results received from the constituency tally centres which are established in the constituencies. It was his evidence that in determining results for each constituency the 2nd Respondent considers the Record of Polling Process - Form 17, Polling Station Record of Results - Form 18B, Constituency Record of Results by Polling Station- Form 19B, and Constituency Summary of Results for Parliamentary Election - Form 20B. He testified that upon the closure of voting, ballot boxes are opened, and the votes are classified in [33] [34] [35] accordance with the candidates and the void votes. After the classification, the votes are then counted, and thereafter the presiding officer fills out the Polling Station Record of Results - Form 17, part J, for the polling station. He explained that Form 17, part J contains a record of all activities that took place at the polling station including the results of the parliamentary election. Upon completion of the Polling Station Record of Results - Form 17, the presiding officer proceeds to prepare a summary of the results on Form 18B. He stated that the information on Form 17, part J, and Form 18B is supposed to be the same. He stated that upon completion of preparation of the summary of results the presiding officer transmits Form 18B to the constituency tally center where the constituency returning officer receives all the summary of results on Form 18B. From that information, the constituency returning officer fills out a Constituency Record of Results by Polling Station - Form 19B. He explained that while Form 19B is a record of the constituency record by polling stations, Form 20B, Constituency Summary of Results for Parliamentary Elections, is a summary by candidates. He explained that at the beginning of the determination of the results of an election the 2™ Respondent has a duty to consider and make decisions on all matters that have been subject of complaints, and to examine votes classified as void to affirm or correct the same. He testified that the determination of the results of an election is done by the 2 Respondent in a meeting duly conveyed for that purpose in accordance with the Malawi Electoral Commission Act. Counsel Banda explained that, in terms of the voting materials, one booklet containing 20 sheets is provided per polling station. The first page is the original and is white in colour. The other 19 sheets are duplicates and are light pink in colour. Counsel Banda submitted the presiding officer starts by filling the original sheet in ink and then proceeds to fill the other copies with the same information. He stated that the first sheet of the duplicate with light pink pages is also written in ink to ensure that the content is clear and readable on all copies. In that regard, it was his evidence that there was no issue with the information that would be on duplicates. On the allegations that there were fake duplicate results sheet, he disputed the same and stated that there was no issue at all with the information thereon. He submitted that having looked at the Polling Station Record of Results (Form 18B) that were attached to the complaint, the information on the so called “fake duplicates” is the same as the information on the original copies of Form 18Bs, as well as the originals of the record of polling processes. He referred to the copies of the duplicate result sheets i.e., Form 18B's, that the Petitioner had exhibited from Nambesa FP School stream number 1, Goma FP school streams number 2, 3,5, 6 and 7; Saindi FP School stream number 1; Nabisi FP School stream number 1; Baker FP School stream number 1; Teveta streams numbers 1 and 2; Jombo FP school stream number 6, and produced and exhibited [36] [37] [38] [39] [40] [41] original copies of the corresponding Form 18Bs as “DMB3 to DMB 14”. He explained that there was no difference in terms of the recorded figures between the two sets. He noted that all the forms were duly signed by the polling station officers and by the representatives of the candidates. On the allegations that there were inflated votes, Counsel Banda produced exhibit “DMB 14” for Jombo FP School stream number 6 which was subject to the Petitioners complaint as the rest had no issues. This showed that the total sum of 402 votes came from 178 votes for candidate Guta, 32 for candidate Khuleya, 111 for, the 1* Respondent, and 74 for the Petitioner. The other 11 were void votes. He submitted that the Petitioner’s claim could not be substantiated looking at the figures on the duplicate result sheet. It was clear that the votes were not inflated. So too on the allegation that result sheets were recorded by a single person it was clear that from the exhibits submitted that no Form 18B was ever signed by a single individual. He noted that the issue of the duplicate result sheet being written in handwriting had been addressed in the foregoing as he was explaining about the alleged fake duplicate results sheets. On the allegations of campaigning outside the prescribed campaign period, bribery, and the issuing of handouts, Counsel Banda testified that these were criminal offences. He submitted that under the Act and the under the Code of Conduct for Elections Campaign 2025, criminal offences must be dealt with by following due process of the law. This means that there must be a trial to be conducted by a competent court which must accord the accused the right to a fair trial. It was his evidence that under the Code of Conduct for the Election Campaign 2025, it is expressly provided that the 2" Respondent may refer certain complaints to an appropriate law enforcement authority for disposal. He submitted that in terms of the available evidence the Petitioner had failed to provide any cogent evidence that the alleged incidents actually happened. He stated that such actions being criminal in nature should have been reported to the relevant law enforcement authorities so that any conviction therefrom would form a basis of a complaint sent to the 2.4 Respondent. Counsel Banda testified that the 2°° Respondent duly discharged its statutory functions in accordance with the law, and that all complaints that were lodged with it were considered and resolved within its lawful mandate. He submitted that in view of the same, the 2" Respondent was lawfully and properly declared winner and prayed that the petition be dismissed in its entirety, with costs, for want of merit. In cross examination, Counsel Banda admitted that giving of handouts can influence a voter to vote in a particular way. He also confirmed having seen one original result sheet that was not signed by the presiding officer. He further stated that the figures in the an [42] [43] [44] [45] [46] unsigned duplicate tally sheets did not find their way into the final tally of results and confirmed that the unsigned duplicate tally sheets did not form part of voting materials. It was his submission that if it is proven that the unsigned tally sheets results were included in the final tally of results, the results would not be deemed free and fair. Counsel Banda admitted that he was not at Chikwawa Nkombezi Constituency on the voting day but confirmed that his evidence is only about what he witnessed when the 2nd Respondent was determining the results. On the result tally sheets that was not signed by the Returning Officer, he stated that tallying of votes is done at different stages starting at the polling station. He recalled the process that he explained in his evidence and submitted that where the 2nd Respondent discovers that the tally sheet is not signed, they have recourse to the results at the polling station by way of checking the record of process Form 17, partJ which contained the same information. In re-examination, he clarified that what he meant about a handout influencing an election is where, being an offence, it is strictly proven beyond reasonable doubt that it had been issued. He stated that this was different from where there was just an allegation as in the present case. To that extent he reiterated that handouts are criminalized and that the 2° Respondent only participates in formation of regulations in respect of this same. He confirmed that the 2 Respondent has no role in dealing with complaints in respect of handouts but had a Code of Conduct in which they undertook to refer those allegations to the Registrar of Political Parties for resolution. In respect of the unsigned original result sheet by the presiding officer, he stated that the three duplicate results sheets that had been exhibited by the Petitioner in the matter appeared not clear and only one seems to have not been signed. This had been confirmed by the original results on the said polling centres. He stated that the one which had not been signed would not affect the result of the election if not credited to the 1** Respondent as the margin between him and the Petitioner was very wide, by thousands. He again explained that the unsigned duplicate results sheet did not form part of the results of the elections and stated that the documents used in determining the results are the originals that had been adequately detailed in his evidence. He further explained that he had exhibited the actual original copies that the 2" Respondent received and pointed out that all the original results sheets had a QR code. He stressed that results sheet without the code cannot be accepted by the system. On the allegation of campaigning outside the prescribed period and alleged giving out of handouts by the 1* Respondent, he confirmed that both were offences created by Section 115 (b) (iii) of the Act and Section 41 of the Political Parties Act, 2018, respectively. He argued that since these irregularities constitute an offence under the law, their perpetration can only be established through a criminal process before a competent court and using the standard of proof applicable to criminal cases i.e., proof 11 [47] [48] [49] [50] 6. [51] beyond reasonable doubt. It was argued that this Court, being a Civil Court, has no jurisdiction to try offences as the proceedings currently underway before this Court are not criminal proceedings and the 1% Respondent is not in this court to answer to the alleged offences. He concluded by stating that likewise the 2° Respondent has no mandate to try those offences. Counsel Banda further argued that since the law has made the alleged irregularities as offences, the commission of these irregularities can only impact the electoral process upon conviction. Therefore, it was premature for the Court or indeed any one to use allegation of commission of these irregularities to impact the outcome of the election before conviction of the accused persons by a competent Court of law. Itwas submitted that the law clearly provides for applicable remedies where any person who has been convicted of electoral and other election related irregularities, including loss of office for an elected person. Having argued the same, it was submitted that the petition ought to be dismissed with costs because the Petitioner had failed to establish the alleged irregularities and that the same impacted the elections or can impact the elections at this point. The sworn statement filed by Justice Annabel Mtalimanja simply adopted the contents of the sworn statement of Counsel David Matumika Banda, and submitted that the 2nd Respondent believed that the petition did not have any merit, was misconceived and lacked factual and legal foundation, and did not disclose any valid ground to warrant granting the reliefs sought. She prayed for the dismissal of the same with costs. ISSUES FOR DETERMINATION Having heard the parties in this petition, there main key issues are before this Court for determination as follows: (i) Whether that part of the petition dealing with the “illegalities” has competently been brought before this Court under Section 100 of the Act. (ii) Whether or not the parliamentary election that took place in Chikwawa Nkombezi constituency was marred with irregularities. (iii) Whether the said irregularities, if any, affected the results of the election warranting the remedies sought. ANALYSIS OF THE LAW AND EVIDENCE Itis a settled position of law that the legal burden of proof in election proceedings lies on the petitioner on the standard of the balance of probabilities. The evidential burden will only shift to the Respondent when the petitioner has made out a prima facie case. In Chilima and another v Mutharika and another Constitutional Reference No. 1 of 2020, the Constitutional Court had this to say:- a4 (i) [52] [53] [54] “The common law concept of burden of proof (onus probandi) is a question of law which can be described as the duty which lies on one or the other party to establish a case upon a particular issue. The burden and standard of proof are formulated by the state of pleadings at the beginning of the trial and remain unchanged throughout the case. Electoral petitioners are special breed of claims which are governed by the CPR. Unfortunately, the entire CPR and the electoral law does not dispute who bears the legal burden of proof and the standard of proof thereof in a petition. The legal burden of proof rests upon the claimant or petitioner as the case might be, and ordinarily it does not shift throughout the trial, remaining exactly where the pleadings placed it, and never shift in any circumstances whatsoever. When all the evidence is in, and the party who bears the burden fails to discharge it, his or her claim thereby fails.” Thus, it is settled that a petitioner bears the burden to prove every allegation of irregularity presented in the petition and it only shifts to a respondent after discharging it to the requisite standard. Whether that part of the Petitioner dealing with the “illegalities” has been competently brought before this Court under Section 100 of the Act. To determine the foregoing, we shall be first guided by the Constitution of the Republic of Malawi. Section 76(3) of the Constitution provides as follows: “(3) Any person who has petitioned or complained to the Electoral Commission shall have a right to appeal to the High Court against determinations made under subsection (2)(c) and (2)(d)”. Order 19 Rule 13 of the CPR 2017 provides that an election matter must be commenced in the manner specified under the Parliamentary and Presidential Act, the Local Government Act or in any other event by an application. These two pieces of legislation ere repealed and replaced by the Act under which the Petitioner grounded her petition. Section 100 of the Act states as follows: (1) An appeal shall lie to the High Court against a decision of the Commission confirming or rejecting the existence of an irregularity and such appeal shall be made by way of a petition, supported by sworn statements, which shall clearly specify the declaration the High Court is being requested to make by order. (2) On hearing a petition under subsection (1), the High Court - (a) shall, subject to subsection (3), make such order or orders as it thinks fit; or 49 [55] (b) in its absolute discretion, may or may not condemn any party to pay costs in accordance with its own assessment of the merits of the complaint. (3) An order of the High Court made under subsection (2) shall not declare an election or the election of any candidate void except on the following grounds which are proved to the satisfaction of the Court- (a) that the voters were corruptly influenced in their voting contrary to any provision of this Act, or had their ballot papers improperly rejected, or voted more than once; (b) that persons not entitled to vote were improperly granted ballot papers; (c) that persons entitled to them were improperly refused ballot papers: Provided that, if the Court is satisfied that any failure to comply with this Act did not affect the result of the election, it shall not declare the election void; or (d) that the candidate who has won the election was at the time of his or her election not qualified for election, or that he or she was not properly nominated, or that a duly qualified candidate had his or her nomination improperly rejected. (4) The court shall have the power to direct scrutiny and recount of votes if itis satisfied, during proceedings on an election petition, that such scrutiny and recount are desirable. (5) At the conclusion of the hearing of the election petition, the court shall report its determination to the Commission and upon such report being given, such determination shall be final. (6) No application shall be made to the High Court for an injunction or for an order restraining the holding of an election within fourteen days immediately preceding the date of the election. (7) Notwithstanding subsection (6), the High Court shall have power, subsequent to the holding of an election, to dectare void the election if, upon hearing the petition referred to in subsection (1), the High Court is satisfied that there are good and sufficient grounds for declaring the election void. Itis clear from the reading of Section 100 of the Act that for this Court to be seized of an electoral dispute under Section 100 of the Act, it must only deal with those issues that were subject of a complaint that has been decided by the 2nd Respondent. In other words, the matter must come as an appeal from the decision of the 2nd Respondent. 1A [56] [57] [58] [59] [60] [61] From the evidence presented in Court, the Petitioner indeed made a complaint to the 2nd Respondent by way of a letter from the Secretary General of the Malawi Congress Party to the 2nd Respondent. | must say that despite the Court having earlier asked Counsel for the Petitioner to properly exhibit the letter, the same was not done. | however still took the liberty and considered the same because it was part of the petition and the 2nd Respondent acknowledged received the same. The 2nd Respondent also confirmed having considered the complaints thereunder. A scrutiny of the letter shows five complaints that were brought to the attention of the 2nd Respondent on the duplicate result sheets namely; alleged fake duplicate results sheets; alleged lack of presiding officer’s signature; alleged inflated valid votes; result sheets allegedly recorded by a single person; and duplicate results sheets drawn in original handwriting. It is the 2nd Respondent's submission that all the issues were considered, and it was determined that there was none of the issues affected the result of the elections. Accordingly, they proceeded and declared the 1st Responded the winner of the elections. It is on the basis of the said decision that the Petitioner proceeded and filed the present petition. It is unquestionable therefore that the Petition has been properly brought before this Court in respect of the issues that were earlier referred to the 2nd Respondent and were dealt with accordingly. Looking at the later part of the petition however, it is clear that the Petitioner included two new complaints against the 1st Respondent namely; the alleged campaigning beyond the allowed campaign period; and the alleged giving out of handouts before and on the polling day. These two issues were new. They were not part of the letter that was sent to the 2nd Respondent on behalf of the Petitioner. Bearing in mind that this petition has been filed under Section 100 of the Act, which should be a petition filed by way of an appeal against the decision of the 2nd Respondent, it follows that the two issues should not have found their way into the petition. Order 19 Rule 13 of the CPR 2017 is very clear that election matters must be commenced in the manner specified under the Act. A failure to comply with the provision is surely fatal and renders the commencement incompetent. In this regard, | have two choices to make in respect of the current petition; either to dismiss the entire petition or to expunge the defective part from the petition and proceed accordingly. Looking at the nature of the election matters, emotive as they are, it may be unfair for this Court to deny the Petitioner an opportunity to be heard on the issues that have been brought in this Court competently. | therefore expunge that part of the petition containing allegations about the giving of cash handouts, and campaigning after the closure of the campaign period. The rest will be dealt with accordingly. Let me however state in passing that the alleged giving of cash handouts, and campaigning after the closure of the campaign period are offences under the law. Therefore, proof of their commission must be established through a criminal process 15 [62] [63] (ii) [64] [65] before a competent court, using the standard of proof applicable to criminal cases. | have considered the Petitioner’s arguments to the effect that this court has unlimited original jurisdiction to hear and determine any civil and criminal proceedings under any law and as such it was their belief that the Court could have proceeded and dealt with such issues. | have a problem with that approach knowing that the proceedings before this Court now are civil and not criminal in nature. Is the Court going to switch left and right in terms of the standard of proof in dealing with respective allegations in the matter? | do not think so. Further, the law provides that an appeal under Section 100 shall be by way of petition and supported by sworn statements. Are we then going to use sworn statements to establish or prove commission of such offences instead of the normal approach where suspected individuals are charged and brought before the Court to be heard as typical in criminal matters? | am wary of turning the hearing of an election petition into a fully fledged criminal court in a bid to prove the allegation about commission of those offences. | therefore tend to lean towards the 2nd Respondent's submission in that regard, and also in regard to the fact that the commission of these irregularities can only have an impact on the electoral process upon conviction. Whether or not the parliamentary election that took place in Chikwawa Nkombezi constituency was marred with irregularities, Section 2 of the Act defines an irregularity as follows: “irregularity” in relation to the conduct of an election, means non-compliance with the requirements of this Act, the Constitution and any other applicable law;” Section 92 of the Act provides that: (1) The presiding officer shall cause to be prepared by the polling station officers- (a) a record of the entire polling process at his or her polling station, containing- (i) the full particulars of the polling station officers, representatives of political parties and representatives of independent candidates; (ii) the total number of voters; i) the total number of votes for or under each classification of votes; (iv) the number of unused ballot papers; 12 SS [66] [67] (v) the number of ballot papers which have been the subject of complaints, if any; (vi) the discrepancies, if any, between votes counted and the number of voters; (vii) | complaints registered and responses thereto and the decisions taken thereon by the polling station officers; and (viii) any other occurrence which the polling station officers consider to be important to record; and (b) a brief summary of the final result. (2) The record and summary prepared under subsection (1) shall be legibly signed by the presiding officer and each of the other polling station officers and, if any is present, by at least one representative of each political party or independent candidate. (3) The record prepared under subsection (1) shall, in relation to paragraph (a) (ii), (iii), (iv), (v) and (vi), be written in both Arabic numerals and words. (4) A representative of a political party or a representative of a candidate at a polling station shall be entitled to a copy of the duly signed summary of the final result of the poll at that polling station. (5) The presiding officer shall announce, declare and post at the polling station a copy of the duly signed summary of the final result of the poll at that polling station.” As noted in the preceding parts, the Petitioner alleged five irregularities in her petition. | will consider each and every one of those alleged irregularities separately as follows: (a) Alleged fake Duplicate Record of Results | have considered the petition and the Petitioner’s sworn statement in support of the petition as regards the allegation of fake duplicate Polling Station Record of Results. In that regard, the Petitioner proffered three Form 18B’s to prove her allegation. The petitioner has couched the particulars of the irregularity under this head as follows: “The duplicate results sheets presented to the Petitioner’s monitors appeared to have been filled in original handwriting, contrary to standard practice where the duplicates would bear imprints or clear indication of their duplicate nature. | exhibit hereto copies of the result sheets as exhibit “ASM71”. Looking at the foregoing, two issues comes to my mind. First, itis clear that the Petitioner has not produced any direct evidence to prove the assertion that the three duplicate a [68] [69] [70] [71] [72] Polling Station Records of Results Forms that had been exhibited are fake. The wording from her petition is that “..appeared to have...” definitely shows that she simply suspects the same to have been fake. The reason behind the suspicion Is that they were filled in original handwriting when as duplicate should be a carbon imprint. Secondly, it is also clear from the wording that the Petitioner is grounding her allegation of an irregularity on standard practice, and not any other provision of any electoral law, or any other law. An irregularity in the context of an election means the non-compliance with the requirements of the Act, the Constitution, and any other applicable law. It has nothing to do with standard practice. Further the original Polling Station Record of Results sheet for the three Polling Stations tendered by Counsel Banda marked as exhibits “DBM 5”, “DMB 6”, and “DMB 7” corresponded to the said duplicates tendered by the Petitioner. His explanation in his sworn statement to the effect that these were actually filled in original handwriting to make them clear and readable, did make a lot of sense. | have actually observed that it is so difficult to read some duplicates of the results sheet because they are so faint and illegible. This position was not challenged or controverted by the Petitioner both in her reply to the sworn statement of Mr. Banda or in cross examination. It stood as presented. It is therefore clear that the duplicate Polling Station Records of Results forms that had been tendered were actually valid and not fake as alleged by the Petitioner. In my view, the allegation laid by the Petitioner on this ground is unfounded and baseless It is my finding that the Petitioner has failed to show this Court how the 2™ Respondent failed to comply with the Act, the Constitution, or any other applicable law as regards the alleged fake duplicate results sheets. The Petitioner has therefore failed to discharge the burden of proof on her allegation, and | dismiss the same accordingly. (b) Lack of Presiding Officer’s signature. In respect of the allegation of an irregularity under this head, the Petitioner’s produced duplicate Polling Station Record of Results sheets for three polling stations for Nabisi F. P. School (Polling Station Code 2140112/10), Beka F. P. School (Polling Station Code: 2140220/01), and Goma F. P School (Polling Station Code 2140109/03) and exhibited the same as “ASM2”. A look at the said duplicates it was clear that they were indeed not signed by the presiding officers. In response to the same, the 2nd Respondent, through the evidence of Counsel Banda, exhibited the original copies for the Polling Station Record of Results sheet for the three polling stations as “DMB8”, “DMB9” and “DMB10” respectively. From the original copies for Beka F. P. School (Polling Station Code: 2140220/01) and Goma F. P School (Polling Station Code 2140109/03), exhibited as “DMB 9” DMB 10”, respectively, that the Polling Station Record of Results for the said polling stations were duly signed by the Presiding aan [73] [74] [75] [76] [77] Officer. However, the original Polling Station Record of Result for Nabisi F. P School (Polling Station Code 2140112/10), that was exhibited as “DMB 8” was not signed by the presiding officer. It is a statutory requirement that a presiding officer and all polling station officer must sign the polling station summary of results sheet. Section 92(2) of the Act states as follows: “the record and summary prepared under subsection (1) shall be legibly signed by the presiding officer and each of the other polling station officers and, ifanyis present, by at least one representative of each political party or independent candidate.” Accordingly, this Court finds that the Petitioner has proved to the requisite standard that there was an irregularity in respect of the Polling Station Record of Result sheet for Nabisi FP. School (Polling Station Code 2140112/10) in that the presiding officer did not sign it as required by law. (c) Inflated valid votes. In this regard, the Petitioners evidence was to the effect that the number of the valid votes recorded in submitted results sheet were inflated in favour of the 1* Respondent thereby exceeding the total number of valid votes. To that effect the Petitioner exhibited a duplicate for the result sheets for Jombo F. P. School exhibited as “ASM3”. | have considered the 2“ Respondent’s response in respect of the matter. It is clear that in the reconciliation section of the form, Total Number of Valid Votes and Total Number of Votes has the same figure, 402. Total Number of Valid Votes is a summation of votes polled by all competing candidates (178+32+111+70 =391). Total Number of Votes is a summation of the Total Number of Valid Votes plus Total Number of Void Votes (391 +11= 402). A simple analysis of the Record of Result shows that there is no case of inflation of valid votes but a case of a mistake in writing the same figure in two places. Having scrutinized the same, the record of votes polled by each candidate; the Total Number of Votes; and the Total Number of Void Votes are all correct. What is incorrect is the Total Number of Valid Votes which has been transposed as total number of votes. In view of the above observation, it is clear that was a problem in the filling of the form under this head. Certainly, it is not a question of inflating of votes as alleged by the Petitioner. Surely a person setting out to inflate valid votes would not repeat the same figure on the number of total votes and total valid votes because such an act would serve no purpose. The Petitioner has therefore failed to prove that the votes were inflated as alleged. | therefore dismiss the Petitioner’s allegations under this heading accordingly. 4a [78] [79] [80] [81] [82] [83] (d) Allegation of a single person signing of Polling Station Record of Results Under this head, Petitioner alleges that result sheets were signed by an individual person contrary to standard practice thereby compromising the authenticity and legitimacy of this submitted result. In a bid to prove the same repetition exhibited duplicate copies of the alleged result sheets as exhibit “ASM3” containing results sheets for six polling stations namely; Goma F. P School (Polling Station Code: 2140109/03), Goma F. P. School (Polling Station Code: 2140109/05), Goma F. P School (Polling Station Code: 2140109/07), Teveta Mphungu C. D. C. C (Polling Station Code: 2140203/01) and Teveta Mphungu C. D. C. C (Polling Station Code: 2140203/02) and Jombo F. P. School (Polling Station Code 2140102/06). In response to the Petitioner’s allegations, the 2" Respondent’s witness, Counsel Banda, tendered clearer copies of the Polling Station Record of Results for the named centres and exhibited them as exhibits “DBM 10” for Goma F. P School (Polling Station Code: 2140109/03), “DMB4” Goma F. P. School (Polling Station Code: 2140109/05), “DMB 13” for Goma F. P School (Polling Station Code: 2140109/07), “DMB 11” for Teveta Mphungu C. D. C. C (Polling Station Code: 2140203/01) and “DMB 12” Teveta Mphungu C. D. C. C (Polling Station Code: 2140203/02). | have equally examined a duplicate that was tendered by the Petitioner for Jombo F. P. School (Polling Station Code 2140102/06). It is to be noted that on all the results sheet, the signature section is located on the bottom right of the Polling Station Record of Results Form. My close scrutiny of the forms shows that none of them was signed by one person as alleged by the Petitioner. All the forms are signed seemingly in different signatures against a named person. No evidence has been presented before this Court to suggest or prove that the signatures on the respective forms were signed by or belong to one person. In any case, the 2” respondent has ably submitted that the presiding officer is responsible for making sure that the original results sheet as well as the duplicate results sheets are properly Further, as per my earlier observation, an irregularity does not arise where there is a breach of standard practice. | repeat that an irregularity in the context of an election means the non-compliance with the requirements of the Presidential, Parliamentary and Local Government Elections Act, the Constitution, and any other applicable law. It has nothing to do with standard practice especially it is not referenced anywhere. | therefore find that the Petitioner has failed to prove the alleged irregularity as required. (e) Duplicate result sheets drawn in original handwriting Under this head it was the Petitioner’s allegation that the duplicate results sheets were in the same original handwriting as the primary sheets, which was highly irregular and indicative of fraud. In that regard, the Petitioner exhibited the very same exhibits which have been considered under the first item on the alleged fake duplicate results sheets. These were exhibited as ‘ASM1”. [84] [85] [86] (iii) [87] [88] [89] An explanation already given by the 2nd Respondent as summarised under item (a) above answers the questions that have been raised by the Petitioner under this head. In any case, itis very clear that the Petitioner simply suspects fraud. She does not have any proof of it. Unfortunately, as noted above, election cases demand that the one making an allegation must discharge a certain level of proof i.e., on a balance of probabilities. This has not been done in this regard. | have also noted that the Petitioner has not substantiated her claim with reference to the actual provisions under which this is an irregularity. As stated, several times in foregoing, an irregularity in the context of an election, must have something to do with failure on the part of the 2nd Respondent to adhere to the Act, the Constitution and any other applicable law. One’s mere suspicion that something feels highly irregular and indicative of fraud without referring to the law that demands the same to be done differently does not constitute an irregularity. | therefore dismiss the Petitioner’s allegation under this head accordingly. Whether the said irregularities, if any, affected the results of the elections warranting the remedies sought. Having considered the Petitioners allegation in detail, this Court finds that Petitioner has proved the existence of an irregularity in one case where the presiding officer did not sign one original Polling Station Record of Results sheet for Nabisi F. P School (Polling Station Code: 2140112/01). The Constitutional Court in Chilima and another v. Mutharika and another Commission (supra) the court had the following to say: “The same approach on the signature of presiding officer on the result tally sheet being mandatory obtains in other jurisdictions, In Raila Odinga and another v. Independent Electoral and Boundaries Commission, Electoral Commission No. 1 of 2017, the court held that the appending of a signature by a presiding officer to a form bearing the tabulated result is the last solemn act of assurance to the voter that he stands by the numbers on that form. The 2" Respondent, through sworn statements of its presiding officers sought to explain some of the reasons for their failure to sign on the result sheet some of which were also alluded to in the Gondwe and another v. Gotani Nyahara case. The failure being a breach of a mandatory provision of the law those explanations do not at all help the 2” Respondent's case. This court in the end finds and holds that the absence of signatures of presiding officers amounted to an irregularity which undermines the integrity of the elections.” Itis clear that failure by the presiding officer to sign results sheets affects the integrity of the election. However, it always important to examine to what extent has such irregularity affected the integrity of an election because it is not each and every irregularity that must result in the nullification of an election. The duty of the Courtis not aa [90] [91] [92] [93] [94] to rush and declare elections void but to carefully consider and examine whether the result of the election has been affected by such an irregularity. We must always be reminded that it is not the duty of the Court to decide elections. Its duty is to ensure that the will of the people is fortified by looking at all the issues in question and then determining, through the consideration of the ultimate result of an election, whether at the end of the day such issues have ultimately disenfranchised the people of their ultimate choice. Therefore having found that there was an irregularity in this election, the question now is whether that irregularity, i.e., failure of the presiding officer to sign the original results sheet for Nabisi F. P School (Polling Station Code: 2140112/01), affected the outcome of the election. | must remind myself once again that under the proviso to Section 100 (3) of the Act an irregularity can only be a ground for voiding or nullification of an election if the Court is satisfied that it has affected the result of the election. In my view the said irregularity did not have an effect on the overall results for the election for various reasons. Firstly, it is very clear from the original Polling Station Record of Results sheet for Nabisi FP School (Polling Station Code: 2140112/01) that all the polling station officers and representatives of the candidates for the various parties, except the presiding officer signed the same. Surely, if the results tallied at the polling station did not reflect a true reflection of what had actually happened on the ballot, any of the polling station officers and representatives or at least one or two of them were not going to sign the same. This of course is not a justification for the non- compliance with the law but a factual because it is clear that even where all representatives of parties and other officers have signed, the mere absence of the presiding officer’s signature is fatal for the purposes of declaring the same an irregularity. All| am doing is to confirm that there was no dispute as regards the actual figures. Secondly, from the evidence presented before this Court, it is established that, in the determination of the results, the 2" Respondent does not only use one document. The 2" Respondent examines all records including the source document (Form 17 -Part J) from which the polling station record of results sheet is derived. It is in evidence that the 2"! Respondent accessed the said Form 17 for Nabisi F. P. School (Polling Station Code: 2140112/01) and the same was showing similar figures as on both the unsigned original and duplicate result sheets. This solidifies the fact that the final result of the election was not affected by the irregularity. Thirdly, it is evident that the Petitioner herself did not raise any challenge on the result recorded on the irregular result sheet, neither did she bring any evidence to prove that the votes captured in the unsigned result sheet for Nabisi F. P. School (Polling Station Code: 2140112/01) polling station are incorrect. Fourthly, and finally, the total number of votes recorded on the unsigned result sheet for Nabisi F. P. School (Polling Station Code: 2140112/01) is 286. This, in my view, had no effect on the overall results in respect of the election looking at the results for the constituency which were as follows: 99 [95] [96] [97] 1. Gabriel Wilfred Guta 4,995 votes, 2. Ben Monfort Khuleya 7,580 votes. 3. Lloyd Laxton Enos Malola 12,218 votes. 4, Abida Sidik Mia 7,687 votes. As can be noted, the 1% Respondent polled 4,531 more votes than the Petitioner who came second. Ultimately, it is my findi ng, therefore, that the irregularity did not affect the results of the élections. In as faras the integrity of the election is con cerned, itis very clear that largely, the 2nd Respondent conducted the elections in compliance with the statutory requirements except on this one irregularity. Bearing in mind the fact that the results of the election were not affected by the same, | find that the irregularities do not warrant the remedies sought by the Petitioner. Having concluded the above, | would like to observe, again per incuriam, this Petition was brought before this Court under Section 100 of the Act. This means that it was brought by way of an appeal against the decision of the 2nd Respondent. However, the main relief sought by the Petitioner i.¢., nullification of elections “for undue return and undue election”, is provided under Section 101 of the Act. The definition of the term undue return and undue election stil required the Petitioner to raise evidence of irregularities relating to the tallying of figures for non-compliance with the law. In this regard, the irregularity that has been proved in this petition cannot, in my mind, be classified as a major irregularity in the conduct of the elections for the constituency. In Chilima and Another v Mutharika and Another (supra), it was held as follows: “83. With regard to au undue return, perhaps the proper way of understanding the term is to describe what entails a due return. This Court takes the view that a due return is the Proper declaration of the winner of an election. It follows, therefore, thatan undue return is an improper declaration ofa Person as a winner ofan election.” “84. For purposes of an undue election, the Court is of the view that a due election entails that all the Processes of the election commencing with the registration of voters throughout the polling process up to the declaration of the election result or return of the winner have been carried out properly and in accordance with the law. An undue election is, therefore, one in which the set Processes for the election as set out in prescribed law and other set electoral procedures have not been complied with.” “85. ... Undue election occurs where certain processes have not been followed Such as the election not held on the date fixed by the law, the officers or indeed the candidates not having the necessary qualifications and the candidates not 92 [98] [99] [100] [101] Properly chosen. On the other hand, undue return relates to falsifying the aggregation of votes, arithmetical error, Someone Chosen when the documents show that it should have been another to be chosen.”. Ultimately even under Section 101 Petition the Court can only nullify an election if there are issues/irregularities raised that would make a reasonable tribunal conclude that the elections were not free and fair and, surely, not representation of the will of the people. In the present case that test has not been satisfied by far. In my view, the Petition would Still have failed even if it was brought under Section 101 of the Act. DISPOSAL Having considered all the evidence before me, itis my view that the Petitioner has failed to prove all of the alleged irregularities on a balance of probability except one. However, this, one irregularity, did not affect the results of the Parliamentary Elections for Chikwawa Mkombezi Constituency in which the 1st Respondent was declared the winner by the 2nd Respondent on 30 September 2025, | therefore dismiss the Petition in its entirety. On costs, it is settled that they are awarded at the discretion of the Court. The general practice is that they usually follow the event. However, having considered all the circumstances in this matter, | order that the parties should bear their own costs.