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Waira v Kubeketerya (Election Application No. 16 of 2021)

Court of Appeal · [2022] UGCA 115 · 2022 Applications Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated applications for extension of time to serve notice and memorandum of appeal and to validate a late-filed record of appeal in an election petition appeal
Decision
All three consolidated applications granted; extensions of time and validation of late filing and service ordered, allowing the substantive appeal to proceed

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Holding

The Court of Appeal consolidated three election petition applications and held that the 1st respondent's deliberate evasion of personal service, together with the refusal of his advocates to accept service, constituted sufficient reason under Rule 5 of the Judicature (Court of Appeal) Rules to extend time for serving the Notice of Appeal and Memorandum of Appeal. Delay in filing the Record of Appeal was attributable entirely to the trial court's failure to supply certified proceedings in time, also amounting to sufficient reason. The Court granted extensions, validated the late filing and service of the Record of Appeal, and held that where an advocate represented a party in the High Court, service on that advocate is good service regardless of claimed lack of instructions.

Facts

The applicant and the 1st respondent contested the seat of Member of Parliament for Bunya East Constituency in the January 2021 general elections, and the 1st respondent was declared the winner. The applicant's election petition in the High Court was dismissed on 8 November 2021. The applicant filed a Notice of Appeal, requested proceedings, and filed a Memorandum of Appeal within time, but could only serve the 2nd respondent (Electoral Commission). Despite repeated efforts by a court process server to serve the 1st respondent personally at his residence, parliamentary office, and via his advocates and phone, service failed; the 1st respondent's High Court advocates declined service claiming no instructions. The Jinja High Court supplied the complete certified record of proceedings only on 15 February 2022, partly because the trial judge was at another duty station, after which the applicant filed the Record of Appeal on 21 February 2022. The applicant filed three applications seeking extension of time and validation of late filing and service. The respondents filed no affidavits in reply.

Issues

  1. Whether there was sufficient reason for the applicant's failure to serve the Notice of Appeal and Memorandum of Appeal upon the 1st respondent as prescribed by law.
  2. Whether there was sufficient reason for the applicant's delay in filing the Record of Appeal.
  3. Whether the applicant is entitled to the remedies sought, including extension of time and validation of late filing and service.

Orders

  • The application for extension of the time for service of the Notice of Appeal upon the 1st respondent is granted.
  • The application for extension of the time for service of the Memorandum of Appeal is granted.
  • The filing and service of the Record of Appeal out of time is validated.
  • The applicant is granted the taxed costs in EPA Nos. 16 of 2021 and 17 of 2021 only, to be paid by the 1st respondent.
  • As for EPA No. 38 of 2022, each party shall bear its own costs.
  • The Registrar to serve copies of this Ruling on the Attorney General, the Director of the Law Development Centre, the President of the Uganda Law Society and the Secretary of the Law Council, and to post a copy on the WhatsApp Groups of the advocates of the Court of Appeal and the High Court.

Key headnotes

Extension of Time — Sufficient Reason — Rule 5 Judicature (Court of Appeal) Rules
Sufficient reason for extension of time refers to any good reason that prevented an applicant from taking an essential step within the prescribed time, or other reasons why an intended appeal should be allowed to proceed though filed out of time.
Service of Process — Deliberate Evasion of Service as Sufficient Reason
A respondent's deliberate actions to fail or frustrate personal service of court documents on himself, including rejection of service through his counsel, constitute sufficient reason for extension of time within which to effect service.
Extension of Time — Delay Attributable to the Court
Delay in filing the record of appeal attributable entirely to the court's failure to supply the certified record of proceedings in time constitutes sufficient reason for extension of time under the Rules.
Service on Advocate — Rules 18 and 78 Judicature (Court of Appeal) Rules
Where an intended respondent was represented by an advocate in the High Court, service of a notice of appeal on that advocate, or a partner or clerk at the advocate's office, is good service unless and until the respondent furnishes a different address of service; no specific instructions are required and refusal to accept service is inconsequential.
Election Appeals — Application of Court of Appeal Rules via Parliamentary Elections (Election Petitions) Rules
By virtue of Rule 36 of the Parliamentary Elections (Election Petitions) Rules, the Judicature (Court of Appeal) Rules governing procedure on civil appeals apply to appeals arising from election petitions, including the provisions on service and extension of time.

Legislation cited (9)

  • Judicature (Court of Appeal) Rules r.5
  • Judicature (Court of Appeal) Rules r.18
  • Judicature (Court of Appeal) Rules r.78
  • Judicature (Court of Appeal) Rules r.80
  • Judicature (Court of Appeal) Rules r.87
  • Judicature (Court of Appeal) Rules r.88(1)
  • Parliamentary Elections (Election Petitions) Rules S.I. No. 141-2 r.31
  • Parliamentary Elections (Election Petitions) Rules S.I. No. 141-2 r.36
  • Parliamentary Elections (Election Petitions) (Production of Record of Appeal) Directions S.I. 141-1 r.2

Cases cited (7)

  • Electoral Commission v Mwosuko Jacob (Election Petition Application No. 42 of 2022)
  • Bakiite Leonard and Others v Ampaire Kizito Nseko and Others (Election Petition Application No. 27 of 2022)
  • James Bwogi v Kampala City Council and Another (Civil Application No. 09 of 2017)
  • Boney M. Katatumba v Waheed Karim (Civil Application No. 27 of 2007)
  • Wakayima Musoke Nsereko v Kasule Robert Ssebunya (Election Petition Application No. 10 of 2016)
  • Electoral Commission v Badogi Waguma (Election Petition Application No. 06 of 2016)
  • Mansulkalal Ramji Karia v Attorney General (Civil Application No. 1 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.