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Kiviri Tumwehe v Mubiru (Election Petition Application No. 30 of 2022)

Court of Appeal · [2022] UGCA 117 · 2022 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to deem a Notice of Appeal withdrawn or to have it struck out for failure to take an essential step.
Decision
Notice of Appeal deemed withdrawn and struck out; costs to the applicant.

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Holding

The applicant sought to have the respondent's Notice of Appeal deemed withdrawn or struck out because the respondent had not applied in writing for the record of proceedings and thereby failed to take an essential step within the prescribed time. The respondent and his counsel did not appear or oppose the application, and indications were that the intended appeal had been abandoned and the matter settled. The Court found that an essential step had not been taken and the intended appellant had lost interest, rendering the matter moot. Acting under rules 4 and 84(a) of the Court of Appeal Rules, the Court deemed the appeal withdrawn and struck out the Notice of Appeal, with costs to the applicant.

Facts

The respondent lodged a Notice of Appeal in the High Court at Mpigi on 28 October 2021 in connection with an election petition. The applicant contended that the respondent had not applied by letter for the record of proceedings as required by the Rules of the Court of Appeal, and consequently failed to institute the intended appeal within the prescribed time, thereby failing to take an essential step. The applicant brought an application to have the Notice of Appeal deemed withdrawn or struck out. At the hearing, the applicant's counsel appeared, but the respondent and his lawyers were absent and filed no affidavit in opposition. Affidavits of service indicated that the respondent's counsel had declined service stating he no longer had instructions, and informed the process server that the matter had been withdrawn; the respondent told the process server the matter was settled out of court.

Issues

  1. Whether the Notice of Appeal should be deemed withdrawn or struck out where the respondent failed to apply for the record of proceedings and institute the appeal within the prescribed time.

Orders

  • The appeal is deemed to have been withdrawn.
  • The Notice of Appeal in Election Petition Number 30 of 2022 is struck out by reason of withdrawal.
  • Costs awarded to the Applicant.

Key headnotes

Appeals — Notice of Appeal — Failure to Apply for Record of Proceedings as an Essential Step
Where an intended appellant fails to apply in writing for the record of proceedings, an essential step in the appeal has not been taken, and the Notice of Appeal may be deemed withdrawn or struck out.
Appeals — Withdrawal — Abandonment and Mootness
Where the intended appellant has lost interest in and abandoned an intended appeal, the matter becomes moot and the court may, under rules 4 and 84(a) of the Court of Appeal Rules, deem the appeal withdrawn and strike out the Notice of Appeal.

Legislation cited (8)

  • Judicature (Court of Appeal Rules) Directions r.2(2)
  • Judicature (Court of Appeal Rules) Directions r.43(1)
  • Judicature (Court of Appeal Rules) Directions r.44(1)
  • Judicature (Court of Appeal Rules) Directions r.82
  • Judicature (Court of Appeal Rules) Directions r.83(2)
  • Judicature (Court of Appeal Rules) Directions r.83(3)
  • Judicature (Court of Appeal Rules) Directions r.84(a)
  • Judicature (Court of Appeal Rules) Directions r.4
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.