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Abiriga Ibrahim Y.A v Musema Mudathir Bruce (Election Petition Application No.24 of 2016)

Court of Appeal · [2017] UGCA 2 · 2017 Application Granted — Appeal Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out an election petition appeal for failure to file the memorandum of appeal within the prescribed time
Decision
Election Petition Appeal No. 25 of 2016 struck out as incompetent for failure to file the Memorandum of Appeal within time

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Holding

The Court held that under Rule 30 of the Parliamentary Elections (Election Petitions) Rules, the seven days for filing a Memorandum of Appeal run from the date the Notice of Appeal is given, excluding that day. Since the Notice was given on 24 June 2016, the Memorandum was due by 1 July 2016; filing on 5 July 2016 was four days late. This was failure to take an essential step. Article 126(2)(e) of the Constitution could not save the defaulting litigant, being no magical wand for those who neglect prescribed procedure, especially given the constitutional requirement for expeditious disposal of election matters. The application to strike out was allowed and the appeal struck out as incompetent.

Facts

The applicant and respondent contested the parliamentary seat for Arua Municipality in the General Elections of 18 February 2016. The applicant was declared validly elected. The respondent petitioned the High Court at Arua alleging the applicant lacked the requisite academic qualifications. On 24 June 2016, Keitirima J dismissed the petition and upheld the applicant's election. The respondent filed a Notice of Appeal the same day, 24 June 2016. Under Rule 30 of the Parliamentary Elections (Election Petitions) Rules, the Memorandum of Appeal had to be filed within seven days of the Notice. The respondent filed the Memorandum of Appeal on 5 July 2016. The applicant brought this application to strike out the appeal, contending the Memorandum was filed out of time and that the respondent had not applied for extension of time despite notice. The respondent argued time ran from when the Notice was lodged with the Registrar on 28 June 2016, making the filing timely, alternatively that the delay was excusable under Article 126(2)(e).

Issues

  1. Whether the respondent failed to take an essential step in prosecuting Election Petition Appeal No. 25 of 2016 by filing the Memorandum of Appeal out of time.
  2. When the seven-day period for filing a Memorandum of Appeal under Rule 30 of the Parliamentary Elections (Election Petitions) Rules begins to run.
  3. Whether Article 126(2)(e) of the Constitution can excuse the late filing of the Memorandum of Appeal.

Orders

  • Application allowed.
  • The appeal as filed is incompetent and is struck out.
  • Costs of the application and in the court below to the applicant.

Key headnotes

Election Petition Appeals — Memorandum of Appeal — Computation of Time under Rule 30
Under Rule 30 of the Parliamentary Elections (Election Petitions) Rules, the seven days within which a Memorandum of Appeal must be filed run from the date the Notice of Appeal is given, that date being the date the Notice is filed in court, and excluding the day on which it is given.
Striking Out Appeals — Failure to Take an Essential Step within Prescribed Time
Filing a Memorandum of Appeal outside the time prescribed by the rules constitutes failure to take an essential step in the proceedings, rendering the appeal incompetent and liable to be struck out under Rule 82 of the Court of Appeal Rules.
Article 126(2)(e) — Substantive Justice without Undue Regard to Technicalities — Limits
Article 126(2)(e) of the Constitution is not a magical wand in the hands of defaulting litigants; a litigant relying on it must show that in the circumstances it was not desirable to have undue regard to the relevant technicality, and it cannot save an appeal where the litigant has neglected to seek extension of time.
Expeditious Disposal — Higher Duty of Diligence on Intending Appellants
Given the constitutional and statutory requirement that election matters be disposed of expeditiously, an intending appellant in an election petition appeal bears a higher duty to promptly take all necessary steps to prosecute the appeal.

Legislation cited (14)

  • Judicature (Court of Appeal Rules) Directions Rule 43(1) & (2)
  • Judicature (Court of Appeal Rules) Directions Rule 82
  • Judicature (Court of Appeal Rules) Directions Rule 4(a)
  • Judicature (Court of Appeal Rules) Directions Rule 76
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 Rule 29
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 Rule 30
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 Rule 31
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 Rule 33
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 Rule 36
  • Constitution of the Republic of Uganda Article 126(2)(e)
  • Constitution of the Republic of Uganda Article 140(1) and (2)
  • Parliamentary Elections Act s.63(2)
  • Parliamentary Elections Act s.66(2)
  • Parliamentary Elections Act s.66(4)

Cases cited (7)

  • Kasibante Moses v Electoral Commission (Election Petition Application No. 7 of 2012)
  • Kirya Grace Wazala v Daudi Migereko & Anor (Electoral Reference Appeal No. 39 of 2012)
  • Bahinguza & Anor v Attorney General (Miscellaneous Application No. 269 of 2013)
  • Tegras Byeitima & Others v Asaba Jaiden (Civil Application No. 248 of 2013)
  • Utex Industries Ltd v Attorney General (Civil Appeal No. 52 of 1995)
  • Kasibante Moses v Katongole Singh Murwaha (Election Application No. 8 of 2012)
  • Kasirye Byaruhanga & Co. Advocates v Uganda Development Bank (Civil Appeal No. 2 of 1997)
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.