Kubeketerya James v Waira Kyewalabye & Another (Election Petition Appeal No. 97 of 2016)

Court of Appeal · [2017] UGCA 107 · 2017 Preliminary Objection Upheld ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Appeal from High Court dismissal of an election petition, determined on a preliminary objection that the memorandum and record of appeal were filed out of time

Decision

Notice of Appeal struck out; appeal incompetent and High Court judgment upheld

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal upheld a preliminary objection that the appeal was incompetent. The appellant filed his memorandum of appeal eight days out of time, contrary to Rule 30, and the record of appeal beyond the thirty days required by Rule 31 of the Parliamentary Elections (Interim Provisions) Rules. The Court held that these mandatory time limits, reflecting the constitutional requirement for expeditious disposal of election matters, must be strictly observed. Rule 83 of the Court of Appeal Rules, which permits exclusion of time taken to prepare the record, does not apply to parliamentary election petition appeals. The Notice of Appeal was struck out, leaving the High Court judgment unchallenged. The Court added that the grounds were in any event without merit.

Facts

The appellant contested the parliamentary seat for Bunya County East Constituency in Mayuge District in the elections held on 18 February 2016 and lost to the first respondent. Aggrieved, he petitioned the High Court to nullify the election, but the petition was dismissed on 3 October 2016 for lack of satisfactory evidence. The appellant filed a Notice of Appeal on 6 October 2016, served on 7 October 2016. Under the rules, the memorandum of appeal was due within seven days but was filed on 21 October 2016, eight days late. The record of appeal was filed on 15 December 2016, beyond the thirty-day limit. The appellant conceded the late filing, arguing that certified copies of the proceedings and judgment were unavailable in time and that he had relied on draft documents to formulate his grounds. The respondents raised a preliminary objection contending the appeal was incompetent.

Issues

Whether the appeal was incompetent for failure to file the memorandum of appeal within seven days as required by Rule 30 of the Parliamentary Elections (Interim Provisions) Rules.
Whether the appeal was incompetent for failure to file the record of appeal within thirty days as required by Rule 31 of the Parliamentary Elections (Interim Provisions) Rules.
Whether Rule 83 of the Court of Appeal Rules, allowing exclusion of time spent preparing the record, applies to parliamentary election petition appeals.

Orders

The Notice of Appeal is struck out.
No appeal lies in this Court in respect of High Court Election Petition No. 008 of 2016.
The judgment of the lower Court stands unchallenged and is upheld.

Key headnotes

Election Petition Appeals — Time Limits — Mandatory Nature of Filing Deadlines

The time limits for filing a memorandum of appeal under Rule 30 and the record of appeal under Rule 31 of the Parliamentary Elections (Interim Provisions) Rules are couched in mandatory terms and must be strictly interpreted and adhered to; failure to comply renders the appeal incompetent.

Election Petition Appeals — Expeditious Disposal — Constitutional Requirement

Election matters must be handled expeditiously as required by Article 140 of the Constitution and sections 63(2) and 66 of the Parliamentary Elections Act, and an intending appellant in an election petition appeal bears a higher duty to actively and promptly take all necessary steps to prosecute the appeal.

Appeals — Court of Appeal Rule 83 — Inapplicability to Parliamentary Election Petitions

Rule 83 of the Court of Appeal Rules, which permits exclusion of time spent preparing the record of proceedings when computing time for filing an appeal, does not apply to parliamentary election petition appeals; the unavailability of certified proceedings does not excuse failure to file within the prescribed time absent exceptional circumstances.

Legislation cited (12)

Constitution of Uganda Article 140
Constitution of Uganda Article 86(1)
Parliamentary Elections Act s.63(2)
Parliamentary Elections Act s.66(2)
Parliamentary Elections Act s.66(4)
Parliamentary Elections (Interim Provisions) Rules S.I. 142-2 r.30
Parliamentary Elections (Interim Provisions) Rules S.I. 142-2 r.31
Parliamentary Elections (Interim Provisions) Rules S.I. 142-2 r.33
Parliamentary Elections (Interim Provisions) Rules S.I. 142-2 r.34
Parliamentary Elections (Interim Provisions) Rules S.I. 142-2 r.36
Parliamentary Elections (Interim Provisions) Rules S.I. 142-2 r.13
Court of Appeal Rules r.83

Cases cited (6)

Bakaluba Mukasa Peter v Nalugo Mary Margret Sekiziyivu (Election Petition Application No. 24 of 2011)
Electoral Commission and Another v Piro Santos Eruga (Civil Application No. 22 of 2011)
Kasibante Moses v Katongole Singh Marwaha (Election Petition Application No. 8 of 2012)
Wanyama Gilbert Mackmot v Hisa Albert and Electoral Commission (Election Petition No. 99 of 2016)
Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
S.B. Kinyatta and Another v Subramian and Another (Civil Application No. 108 of 2003)

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