Wakilii

Komol Emmanuel v Hon. Lokeris Samson (Election Petition Application No. 21 of 2022)

Court of Appeal · [2022] UGCA 398 · 2022 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out an election petition appeal for failure to take essential steps
Decision
Application to strike out the appeal dismissed; the appeal to proceed to be heard on its merits

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Holding

The Court dismissed an application to strike out an election petition appeal for failure to take essential steps. It found the Memorandum of Appeal was filed within the prescribed 7 days, the fees being paid on the last day. The Record of Appeal was filed on the last day of the 30-day period, evidenced by stamped copies in the respondent's possession; the registry's apparent absence of a copy did not prove non-filing. On service, the applicant had not lodged a notice of address for service under rule 80, so he fell within the second category under rule 88(2), for which no court-directed timeline existed. All grounds failed.

Facts

In the parliamentary elections held on 14 January 2021, the applicant was declared the validly elected member of Parliament for Dodoth East County Constituency, Kaabong District, by a margin of 11 votes over the respondent. The respondent challenged the result in Election Petition No. 1 of 2021 in the High Court at Soroti, which was dismissed with costs on 31 August 2021 following a successful preliminary objection. The respondent appealed to the Court of Appeal (Election Petition Appeal No. 9 of 2021). He filed a Notice of Appeal on 2 September 2021, the Memorandum of Appeal stamped received on 8 September 2021 with fees paid on 9 September 2021, and the Record of Appeal stamped received on 8 October 2021. The applicant applied to strike out the appeal, alleging the Memorandum was filed late, the Record of Appeal was never filed, and it was not served on him within the prescribed time. The Record was served on the applicant's counsel on 22 February 2022.

Issues

  1. Whether the respondent filed the Memorandum of Appeal within the time prescribed by the rules.
  2. Whether the respondent failed to file the Record of Appeal within the prescribed time.
  3. Whether the respondent failed to serve the Record of Appeal on the applicant within the prescribed time.

Orders

  • The application is dismissed.
  • Costs of the application awarded to the respondent.
  • The appeal to be disposed of on its merits at a date to be subsequently notified to the parties.

Key headnotes

Election Petition Appeals — Filing of Memorandum of Appeal — Computation of Time
Where a written notice of appeal has been given, the Memorandum of Appeal must be filed within 7 days after the notice was given, the date of the notice being excluded in computation; a Memorandum stamped received and with fees paid on the last day is filed within time.
Striking Out Appeals — Proof of Non-Filing — Record of Appeal
The absence of a copy of the Record of Appeal on the court file when an applicant checks the registry does not by itself prove that the appellant failed to file it; documented stamped copies in the appellant's possession may establish, on a balance of probabilities, timely filing, as a litigant has no control over registry handling of documents.
Service of Record of Appeal — Categories of Respondents under Rule 88
A respondent entitled to service of the Record of Appeal within 7 days under rule 88(1) must have lodged and served a notice of address for service under rule 80; a party to the original proceedings who did not do so falls within rule 88(2), for which service timelines are set only by court direction.

Legislation cited (11)

  • Judicature (Court of Appeal) Rules r.2(2)
  • 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.80
  • Judicature (Court of Appeal) Rules r.83(1)(b)
  • Judicature (Court of Appeal) Rules r.88
  • Parliamentary Elections (Election Petitions) Rules S.I. No. 141-2 r.30
  • Parliamentary Elections (Election Petitions) Rules S.I. No. 141-2 r.31
  • Parliamentary Elections (Election Petitions) Rules S.I. No. 141-2 r.36
  • Interpretation Act Cap. 3 s.34(1)(a)

Cases cited (4)

  • UNTA Exports Ltd Vs Customs [1970] 1EA 648
  • Kasibante Moses v Electoral Commission (Election Petition Application No. 7 of 2012)
  • Bakiite Leonard v Ampaire Kizito Nseko & 2 Ors (Election Petition Appeal No. 27 of 2022)
  • Electoral Commission v Mwosuko Jacob (Election Petition Appeal No. 42 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.