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Kagyerero v Muwuma Kalulu and Another (Election Petition Appeal No. 24 of 2021)

Court of Appeal · [2022] UGCA 212 · 2022 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to extend time to file the record of appeal or to validate a record of appeal filed out of time, in an election petition appeal
Decision
Application for extension of time and validation of the record of appeal declined; appeal struck out as incurably defective

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Holding

The Court of Appeal held that, although the Parliamentary Elections (Interim Provisions) Rules contain no express extension provision, rule 36 imports the civil procedure rules, so rule 5 of the Court of Appeal Rules empowers the court to extend time for sufficient cause. However, election timelines are constitutionally and statutorily strict. The applicant received the certified record of proceedings with two days remaining but did not file the record of appeal until well after the deadline, having negligently waited to prepare other components only after the proceedings were ready. No sufficient cause or exceptional circumstances were shown. The application to extend time and validate the record was declined, and the appeal was struck out as incurably defective, with each party bearing its own costs.

Facts

The applicant, the first respondent and others contested the election for Member of Parliament for Kigulu South Constituency held on 14 January 2021. The Electoral Commission declared the first respondent elected. The applicant petitioned the High Court at Jinja seeking to annul the election; the petition was dismissed with costs on 15 October 2021. The applicant filed a Notice of Appeal on 21 October 2021 and a Memorandum of Appeal on 27 October 2021, served on 28 October 2021. Under rule 31 of the Election Petitions Rules, the record of appeal had to be filed within 30 days of the Memorandum, that is by around 26-27 November 2021. The applicant's counsel wrote letters and made trips to the High Court Registrar, and the certified record of proceedings was availed on 25 November 2021, leaving roughly two days. The record of appeal was nonetheless filed on 10 December 2021, out of time. The applicant then applied to extend time or validate the late record.

Issues

  1. Whether the court could extend time within which to file the record of appeal in an election petition appeal where the Election Petitions Rules contain no express provision for extension.
  2. Whether the applicant established sufficient cause for his failure to file the record of appeal within the 30 days prescribed by rule 31 of the Election Petitions Rules.
  3. Whether the record of appeal filed out of time should be validated, failing which the appeal should be struck out.

Orders

  • The application for extension of time fails.
  • Validation of the record of appeal is declined.
  • The appeal is struck out for being incurably defective and dismissed.
  • Each party shall bear its own costs.

Key headnotes

Election Petition Appeals — Extension of Time — Source of Power
Where the Parliamentary Elections (Interim Provisions) Rules contain no provision for extending time to file appellate documents, rule 36 of those Rules imports the civil procedure rules governing appeals to the Court of Appeal, so that rule 5 of the Court of Appeal Rules empowers the court to extend time for sufficient reason.
Election Petition Appeals — Strict Timelines — Constitutional and Statutory Basis
Election petition matters must be handled expeditiously as a constitutional and statutory requirement under Article 140 of the Constitution and section 65(2) of the Parliamentary Elections Act, and courts adopt a strict approach to compliance with statutory timelines in election appeals.
Extension of Time — Sufficient Cause — Diligence of Appellant
Sufficient cause for extension of time must be a cogent reason relating to the inability to take an appropriate step in time; an appellant must actively and diligently take all necessary steps to prosecute an appeal, and waiting until the record of proceedings is ready before preparing other components of the record amounts to negligence rather than sufficient cause.
Election Petition Appeals — Failure to File Record of Appeal — Consequence
Filing the record of appeal within the prescribed time is a mandatory and essential step in prosecuting an election appeal; where it is not filed in time and no sufficient cause or exceptional circumstances are shown, the appeal is incurably defective and is struck out.

Legislation cited (14)

  • Constitution of Uganda Article 140
  • Constitution of Uganda Article 86(1)
  • Parliamentary Elections Act s.65(2)
  • Parliamentary Elections (Interim Provisions) (Election Petition) Rules SI 141-2 rule 29
  • Parliamentary Elections (Interim Provisions) (Election Petition) Rules SI 141-2 rule 30
  • Parliamentary Elections (Interim Provisions) (Election Petition) Rules SI 141-2 rule 31
  • Parliamentary Elections (Interim Provisions) (Election Petition) Rules SI 141-2 rule 32
  • Parliamentary Elections (Interim Provisions) (Election Petition) Rules SI 141-2 rule 35
  • Parliamentary Elections (Interim Provisions) (Election Petition) Rules SI 141-2 rule 36
  • Judicature (Court of Appeal) Rules SI 13-10 rule 5
  • Judicature (Court of Appeal) Rules SI 13-10 rule 42(2)
  • Judicature (Court of Appeal) Rules SI 13-10 rule 43(1)
  • Judicature (Court of Appeal) Rules SI 13-10 rule 44
  • Judicature (Court of Appeal) Rules SI 13-10 rule 83(3)

Cases cited (22)

  • Bwino Kyakulaga v Badogi Ismail Wauma (Election Petition Appeal No. 26 of 2016)
  • Mugema Peter v Mudiobole Abedi Nasser EPP No. 16 of 2016
  • Mukasa Anthony Harris v Bayiga Michael Phillip Lulume (Election Petition Appeal No. 18 of 2007)
  • Wanume David Kitamirike v URA (Civil Appeal No. 138 of 2010)
  • Utex Industries Ltd v Attorney General (Civil Appeal No. 52 of 1995)
  • Electoral Commission v Piro Santos Eruga (Election Petition Appeal No. 22 of 2017)
  • Peter Bakaluba Mukasa v Nalugo Mary Margaret Sekiziyivu (Election Petition Appeal No. 24 of 2011)
  • Kasibante Moses v Electoral Commission (Election Petition Appeal No. 7 of 2012)
  • Rosette Kizito v Administrator General (Civil Appeal No. 9 of 1985)
  • Tiberio Okeny v Attorney General (Civil Appeal No. 51 of 2001)
  • Edward K. Wesonga v Electoral Commission (Election Petition Appeal No. 17 of 1997)
  • Muiya v Nyangah & Ors (2003) 2 EA 616 C.H.C.K
  • Nalugo Mary Margaret Sekiziyivu v Peter Bakaluba Mukasa (Civil Reference No. 79 of 2011)
  • Mulindwa George William v Kisubika Joseph (Civil Appeal No. 12 of 2014)
  • FL Kaderbhai v Shamsherali M. Zaver Virji (Civil Appeal No. 20 of 2008)
  • Kananura Andrew Kansiime v Richard Henry Kaijuka (Civil Reference No. 15 of 2016)
  • Katatumba v Waheed Karim (Civil Appeal No. 27 of 2007)
  • Ikiror Kevin v Orot Ismael (Election Petition Appeal No. 105 of 2011)
  • Kasibo Joshua Omayende v Mboizi A. Waako (Election Petition Appeal No. 6 of 2021)
  • Robert Kyagulanyi Ssentamu v Yoweri Museveni Tibuhaburwa (Miscellaneous Application No. 1 of 2021)
  • Rao & Others (1956) 1 MLJ 40
  • Wakayima Musoke Nsereko Hanning v Hamis Muoke and the EC, Consolidated Election Petition Applications No. 1 of 2022, No. 2 of 2022 and No. 35 of 2022
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