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Kasibante Moses v Electoral Commission (Election Petition Application No. 07 of 2012)

Court of Appeal · [2012] UGCA 10 · 2012 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out an election petition appeal for failure to take essential steps within prescribed time
Decision
Application allowed; Election Petition Appeal No. 47 of 2011 struck out with costs to the applicant

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Holding

The Court of Appeal held that the date of delivery of judgment is excluded when computing the seven days for filing a written notice of appeal under Rule 29, so the respondent's notice filed on the eighth day was within time. However, service of the notice and filing of the memorandum were each one day late, and the respondent never filed a record of appeal nor requested the court proceedings or sought extension of time. An intending appellant in an election petition appeal bears a higher duty to pursue the appeal diligently and expeditiously. The respondent having failed to take essential steps, the Court allowed the application and struck out the appeal with costs to the applicant.

Facts

Following the 18 February 2011 parliamentary elections for Rubaga North Constituency, the Electoral Commission first declared the applicant the winner, but after a recount ordered by the Chief Magistrate's Court at Mengo, it declared and gazetted Hon. Katongole Singh Marwaha the winner on 1 March 2011. The applicant petitioned the High Court (Election Petition No. 23 of 2011), which ruled in his favour on 24 October 2011. The Electoral Commission lodged Election Petition Appeal No. 47 of 2011. It filed its notice of appeal on 31 October 2011, served it on the applicant's lawyers on 8 November 2011, and filed its memorandum of appeal on 8 November 2011. By the time of the hearing on 10 April 2012, the respondent had not filed any record of appeal, had not requested certified copies of the proceedings (which were ready and forwarded to the Court of Appeal by 16 January 2012), and had never applied for an extension of time. The applicant applied to strike out the appeal for failure to take essential steps.

Issues

  1. Whether the respondent failed to take any essential step to prosecute Election Petition Appeal No. 47 of 2011 within the prescribed time.
  2. Whether the date of delivery of judgment is to be excluded when computing the seven days for filing a notice of appeal under the Parliamentary Elections (Election Petitions) Rules.

Orders

  • The application is allowed and Election Petition Appeal No. 47 of 2011 is struck out.
  • The respondent shall pay the costs of the application to the applicant.

Key headnotes

Computation of Time — Exclusion of Day of Event — Notice of Appeal in Election Petitions
In computing the seven days within which a written notice of appeal must be filed under Rule 29 of the Parliamentary Elections (Election Petitions) Rules, the day of delivery of judgment is excluded, consistent with section 34(1)(a) of the Interpretation Act and Rule 4(a) of the Judicature (Court of Appeal Rules) Directions.
Election Petition Appeals — Duty of Intending Appellant — Heightened Duty of Diligence
An intending appellant in an election petition appeal bears a higher duty to expeditiously take every essential step to prosecute the appeal, since the law requires election petition appeals to be heard and determined quickly; it is the appellant's duty, not the court's, to actively pursue the appeal.
Striking Out Appeal — Failure to Take Essential Steps — Rule 82 Court of Appeal Rules
An appeal may be struck out under Rule 82 of the Court of Appeal Rules where the intending appellant fails to file a record of appeal, fails to request certified copies of proceedings, and never applies for extension of time, demonstrating a lack of diligence in pursuing the appeal.
Service of Notice of Appeal — Burden of Proof on Appellant
The burden lies on the intending appellant to satisfy the court that the notice of appeal was served within the time prescribed by Rule 78(1) of the Court of Appeal Rules; absent evidence of earlier service, the court will rely on the date of acknowledged receipt.

Legislation cited (16)

  • Court of Appeal Rules r.43(1)(2)
  • Court of Appeal Rules r.44
  • Court of Appeal Rules r.82
  • Court of Appeal Rules r.78(1)
  • Parliamentary Elections (Election Petitions) Rules r.26
  • Parliamentary Elections (Election Petitions) Rules r.29
  • Parliamentary Elections (Election Petitions) Rules r.30
  • Parliamentary Elections (Election Petitions) Rules r.31
  • Parliamentary Elections (Election Petitions) Rules r.33
  • Parliamentary Elections (Election Petitions) Rules r.34
  • Parliamentary Elections (Election Petitions) Rules r.36
  • Parliamentary Elections Act s.66(2)
  • Interpretation Act Cap.3 s.34(1)(a)
  • Judicature (Court of Appeal Rules) Directions r.4(a)
  • Constitution of Uganda Article 44
  • Constitution of Uganda Article 126(2)(e)

Cases cited (4)

  • Kenya Court of Appeal Civil Application No.72 of 1999: CECILIA GATHONI HARUN V GEORGE KABUGU
  • Bakaluba Mukasa Peter and Another v Nalugo Mary Margaret Sekiziyivu (Election Petition Application No. 24 of 2011)
  • Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
  • S.B. Kinyatta and Another v Subramanian and Another (Civil Application No. 108 of 2003)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.