Wakilii

Wakayima Musoke Nsereko v Hon. Kasule Robert Sebunya (Miscellaneous Application 10 of 2016)

Court of Appeal · [2016] UGCA 111 · 2016 Preliminary Objection Overruled ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Preliminary objection raised in an application for extension of time to file and serve a Memorandum of Appeal in an election petition appeal
Decision
Preliminary objection overruled; application for extension of time to proceed for hearing on the merits before the single judge.

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Cited — treatment unverified cited in 5 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The respondent raised a preliminary objection arguing that, on a 'first in, first out' basis, his earlier-filed application to strike out the Notice of Appeal should be heard before the applicant's application for extension of time. The single judge overruled the objection, holding that an application for extension of time may be heard even where there is a pending application to strike out an appeal. The order of filing is immaterial, and a striking-out application neither bars an extension application nor divests the court of jurisdiction to extend time. The court was therefore competently constituted and ordered the matter to proceed on the merits.

Facts

The applicant filed a Notice of Appeal on 20 July 2016 against the judgment and orders in Election Petition No. 04 of 2016, but failed to file the Memorandum of Appeal within seven days. The respondent filed Miscellaneous Application No. 9 of 2016 on 3 August 2016 seeking to strike out the Notice of Appeal for that failure. The applicant filed the present application (Miscellaneous Application No. 10 of 2016) on 4 August 2016 seeking extension of time within which to file and serve the Memorandum of Appeal. The Memorandum of Appeal in Election Appeal No. 50 of 2016 had been filed on 2 August 2016, some five days after expiry of the stipulated period. At the hearing before a single judge, counsel for the respondent raised a preliminary objection that the earlier-filed striking-out application should be determined first.

Issues

  1. Whether a single judge can proceed to hear an application for extension of time when there is a pending application to strike out a Notice of Appeal and intended appeal to be determined by the full bench.

Orders

  • Preliminary objection overruled.
  • Matter to proceed for hearing on the merits.

Key headnotes

Appeals — Extension of Time — Pending Application to Strike Out Notice of Appeal
An application for extension of time within which to file a memorandum of appeal may be heard even where there is a pending application to strike out the notice of appeal; the order in which the two applications were filed is immaterial.
Appeals — Jurisdiction — Effect of Striking-Out Application on Extension of Time
An application to strike out an appeal does not act as a bar to an application for extension of time, nor does it divest the court of its jurisdiction to extend time.
Constitution of Court — Single Judge Hearing Extension of Time
A single judge is competently constituted to hear an application for extension of time notwithstanding a pending application before a full bench to strike out the appeal, since rules of procedure are handmaidens of justice.

Legislation cited (3)

  • Judicature (Court of Appeal) Rules SI 13-10 r.5
  • Parliamentary Elections (Election Petitions) Rules r.34
  • Parliamentary Elections (Election Petitions) Rules r.36

Cases cited (3)

  • Congo Trading Corporation Ltd v Alzahiri A. Wissanji (Civil Application No. 89 of 2010)
  • Godfrey Magezi & Another v Sudhir Ruparelia (Miscellaneous Application No. 6 of 2003)
  • Hajji Nurdin Matovu v Ben Kiwanuka (Civil Application No. 12 of 1991)
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.