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Sabila Nelson and 28 Others v The Electoral Commission and 2 Others (Civil Application No. 348 of 2021)

Court of Appeal · [2022] UGCA 377 · 2022 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for extension of time within which to serve Notice and Memorandum of Appeal in an election petition appeal
Decision
Application dismissed; the appeal struck out as incompetent with costs to the respondents

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Holding

The Court of Appeal held that the applicants' Memorandum of Appeal, filed 13 days late under rule 30(b) of the Parliamentary Elections (Election Petitions) Rules, was incompetent. The applicants failed to take an essential step by filing within seven days of the Notice of Appeal and never applied to extend time to file or validate it, ignoring the issue entirely. The Court could not act on its own motion to remedy an omission the applicants did not even acknowledge, particularly as electronic filing was available during the Covid-19 lockdown. Because the Memorandum of Appeal was incompetent, the underlying appeal was equally incompetent and was struck out with costs.

Facts

The 1st applicant and the 2nd respondent contested the Member of Parliament election for Kongasis County, Bukwo District, held on 14 January 2021. The Electoral Commission declared the 2nd respondent the winner. A registered voter (3rd respondent), supported by 540 voters including the 2nd–29th applicants, filed Election Petition No. 13 of 2021, but later withdrew it. The applicants sought to reinstate the petition and be substituted as petitioners, but that application was dismissed for lack of locus standi and failure to file a petition within time. The applicants appealed (Civil Appeal No. 223 of 2021), filing a Notice of Appeal on 2 July 2021 but only filing the Memorandum of Appeal on 22 July 2021—13 days out of time—and serving it on respondents on 2 August 2021. They sought extension of time to serve, attributing delay to the Covid-19 lockdown restricting inter-district travel. They did not seek extension of time to file the late Memorandum of Appeal.

Issues

  1. Whether the applicants were prevented by sufficient cause from filing and serving the Notice of Appeal and Memorandum of Appeal in time.
  2. Whether the Memorandum of Appeal, filed outside the prescribed time without an application for extension, was competent.
  3. Whether the Court could grant extension of time to serve where no application had been made to extend time to file the late Memorandum of Appeal.

Orders

  • The applicants' Memorandum of Appeal is incompetent for being filed out of time.
  • The applicants' appeal is struck out with costs to the respondents.
  • Civil Application No. 269 of 2021 is overtaken by events.
  • The applicants shall pay the costs of this application to the respondents.

Key headnotes

Election Petition Appeals — Memorandum of Appeal — Mandatory Filing Timelines
Under rule 30(b) of the Parliamentary Elections (Election Petitions) Rules, a Memorandum of Appeal must be filed within seven days after a written notice of appeal is given; the requirement is mandatory and failure to comply renders the memorandum incompetent.
Appeals — Essential Steps — Consequences of Failure
Taking an essential step is an act a party is bound by law to perform; if not performed as prescribed, the prior legal process becomes a nullity against the defaulting party, and an incompetent Memorandum of Appeal renders the appeal itself incompetent.
Extension of Time — Burden on Applicant — Court Acting on Its Own Motion
Where a party fails to take an essential step and neglects to apply for an order to remedy the omission, the court has no basis to grant relief on its own motion absent an express statutory provision; the applicant must, by application supported by affidavit, provide sufficient reason under rule 5.
Covid-19 Lockdown — Sufficient Cause — Availability of Electronic Filing
A nationwide Covid-19 lockdown does not constitute sufficient cause for delay in filing court documents where electronic filing and service were permitted under the Constitution (Integration of ICT into the Adjudication Processes) (Practice) Direction, 2019 and Chief Justice circular guidelines.

Legislation cited (8)

  • Judicature (Court of Appeal Rules) Direction, S.I 13-10 rr.5, 43, 44, 76, 78, 83, 88
  • Parliamentary Elections (Election Petitions) Rules r.30(b)
  • Parliamentary Elections (Election Petitions) Rules r.31
  • Parliamentary Elections (Election Petitions) Rules r.22
  • Judicature Act s.33
  • Constitution of the Republic of Uganda Article 28
  • Constitution of the Republic of Uganda Article 126(2)(e)
  • Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Direction, 2019 para.3

Cases cited (8)

  • Katatumba v Karim (Supreme Court Civil Appeal No. 27 of 2007)
  • Utex Industries Ltd v Attorney General (Supreme Court Civil Appeal No. 52 of 1995)
  • Abiriga v Musema (Election Petition Application No. 24 of 2016)
  • Kasibante Moses v Electoral Commission (Court of Appeal Election Petition Appeal No. 1 of 2012)
  • Bakaluba Mukasa Peter v Nalugo Mary Margaret Sekiziyivu (Court of Appeal Election Petition Appeal No. 24 of 2011)
  • Ikiror Kevin v Olot Ismael (Court of Appeal Election Petition Appeal No. 105 of 2011)
  • Attorney General v Mabirizi (Miscellaneous Application No. 843 of 2021)
  • Igeme Nathan Samson Nabeta v Mwiru Paul (Election Petition Appeal No. 46 of 2022)
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.