Waira James Kyewalabye Majegere Sitingo v Kubeketerya James and Electoral Commission (Election Petition Application No. 16 & 17 of 2021)

Court of Appeal · [2022] UGCA 137 · 2022 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Consolidated applications for extension of time to serve appeal documents and to validate filing of the Record of Appeal out of time in an election petition appeal

Decision

All three consolidated applications granted; extensions of time allowed and out-of-time filing and service of the Record of Appeal validated, enabling the substantive appeal to proceed.

The full judgment

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Holding

The Court of Appeal consolidated three applications arising from an election petition appeal. It held that the 1st respondent's deliberate conduct in evading personal service and his advocates' refusal to accept service constituted sufficient reason under Rule 5 of the Judicature (Court of Appeal) Rules to extend time to serve the Notice and Memorandum of Appeal. Delay in filing the Record of Appeal, caused wholly by the trial court's failure to supply certified proceedings in time, also amounted to sufficient reason. The Court granted the extensions, validated the out-of-time filing and service of the Record of Appeal, and awarded the applicant costs against the 1st respondent in two applications.

Facts

The applicant and the 1st respondent contested the Bunya East Constituency parliamentary seat in the January 2021 general elections. The Electoral Commission declared the 1st respondent the winner. The applicant's election petition was dismissed by the High Court at Jinja on 8 November 2021. The applicant filed a Notice of Appeal, a letter requesting proceedings, and a Memorandum of Appeal within time, but managed to serve only the 2nd respondent (Electoral Commission). Repeated attempts to serve the 1st respondent personally, through his residence, parliamentary office, his High Court advocates, the Speaker of Parliament, and by phone and WhatsApp, all failed; his advocates declined service claiming no instructions. The trial court supplied incomplete and erroneous draft proceedings on 15 December 2021 and only delivered certified complete proceedings on 15 February 2022, after which the applicant filed the Record of Appeal on 21 February 2022. The applicant brought three applications seeking extension of time and validation of the late filing and service.

Issues

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

Orders

Application for extension of time for service of the Notice of Appeal upon the 1st respondent granted.
Application for extension of time for service of the Memorandum of Appeal granted.
Filing and service of the Record of Appeal out of time validated.
Applicant granted taxed costs in EPA Nos. 16 and 17 of 2021, to be paid by the 1st respondent.
In EPA No. 38 of 2022, each party to bear its own costs.
Registrar directed to serve copies of the 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 it on the relevant advocates' WhatsApp groups.

Key headnotes

Extension of Time — Meaning of 'Sufficient Reason' under Rule 5 of the 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 — Respondent's Deliberate Evasion as Sufficient Reason for Extension

Where an intended respondent deliberately evades or frustrates personal service of court documents, and his advocates reject service, such conduct constitutes sufficient reason to extend the time for service under Rule 5 of the Judicature (Court of Appeal) Rules.

Extension of Time — Delay Attributable to Court Officials

Delay in filing the Record of Appeal that is attributable entirely to the trial court's failure to supply certified proceedings in time constitutes sufficient reason for extension of time under Rule 5 of the Judicature (Court of Appeal) Rules.

Service of Notice of Appeal — Service on Advocate of Record under Rules 78 and 18

Where a respondent was represented by an advocate in the High Court and gave that advocate's chambers as an address for service, service of the Notice of Appeal on that advocate, partner or clerk is good service unless the respondent files a different address; no specific instructions are needed and refusal to accept such service is inconsequential.

Election Petition Appeals — Application of Court of Appeal Civil Procedure Rules

By virtue of Rule 36 of the Parliamentary Elections (Election Petitions) Rules, the rules regulating procedure and practice on civil appeals to the Court of Appeal, including Rules 5, 78 and 88, apply to appeals arising from election petitions, subject to such modifications as the court may direct in the interests of justice and expedition.

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 Bwooi v Kampala City Council and Another (Civil Application No. 9 of 2017)
Boney M. Katatumba v Waheed Karim (Civil Application No. 27 of 2007)
Wakayima Musoke Nsereko v Kasule Robert Ssebunya (Election Petition Appeal No. 10 of 2016)
Electoral Commission v Badogi Waguma (Election Petition Appeal No. 6 of 2016)
Mansukhlal Ramji Karia v Attorney General (Civil Application No. 1 of 2003)

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