Kirumira Hassan v Magara Patricia (Election Petition Application No 13 of 2021)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

The Court of Appeal struck out the respondent's notice of appeal in an election petition matter. Although the notice of appeal had been filed in time, the intending appellant failed to file a memorandum of appeal within seven days as required by rule 30 of the Parliamentary Elections rules, and consequently failed to lodge a record of appeal under rule 31. These were essential steps; their omission justified striking out the notice of appeal under rule 82 of the Judicature (Court of Appeal) Rules. Costs followed the event under section 27(2) of the Civil Procedure Act. The application for a certificate for two counsel was refused because no work requiring two counsel had been done.

Facts

The respondent, Magara Patricia, had her election petition dismissed by the High Court on 14 September 2021. Dissatisfied, she lodged a notice of appeal in the High Court on 20 September 2021, which was filed in the Court of Appeal on 21 September 2021 and served on the applicant's counsel the same day. The notice of appeal was therefore filed within time. However, the intending appellant took no further procedural steps: no memorandum of appeal was filed within seven days of the notice (due by 27 September 2021), and consequently no record of appeal was lodged. By the time the supporting affidavit was deposed on 8 November 2021, no such documents had been filed and no extension of time had been sought. The applicant accordingly applied to strike out the notice of appeal. The respondent did not oppose the application and did not appear, the matter proceeding ex parte.

Issues

1. Whether the intending appellant's notice of appeal should be struck out for failure to file a memorandum of appeal within the time prescribed by the Parliamentary Elections rules.
2. Whether failure to file the record of appeal and to serve the letter requesting proceedings amounted to failure to take essential steps.
3. Whether the applicant was entitled to a certificate of costs for two counsel.

Orders

• The respondent's notice of appeal is struck out.
• Costs awarded to the applicant.
• Application for a certificate of costs for two counsel denied.

Key headnotes

Legislation cited (11)

• Parliamentary Elections (Election Petition) Rules S.I 141-2 r.30
• Parliamentary Elections (Election Petition) Rules S.I 141-2 r.31
• Parliamentary Elections (Election Petition) Rules S.I 141-2 r.36
• Parliamentary Elections (Interim Provisions) Rules r.29
• Judicature (Court of Appeal) Rules r.43(1)
• Judicature (Court of Appeal) Rules r.43(2)
• Judicature (Court of Appeal) Rules r.82
• Judicature (Court of Appeal) Rules r.85(3)
• Judicature (Court of Appeal) Rules r.88
• Judicature (Court of Appeal) Rules r.100(3)
• Civil Procedure Act s.27(2)

Cases cited (4)

• Bakaluba Mukasa Peter and Electoral Commission v Nalugo Mary Margaret Sekiziyivu (Election Petition Application No. 24 of 2011)
• Nyendwoha Birirwa Norah v The Returning Officer and Another (Civil Application No. 233 of 2011)
• Mae Properties Ltd v Joseph Kibe and another, Court of Appeal; Civil Appeal (Application) No 201 of 2016
• Geoffrey Omara v Charles Andiro Gutumoi Abacacon and the Electoral Commission; Election Petition Appeal No 106 of the 16 and Election Petition Application No 042 of 2017 arising from Election Petition No 006 of 2016