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Mwiru Paul v Igeme Nathan Samson Nabeta and Another (Election Petition Application No 039 of 2022)

Court of Appeal · [2022] UGCA 399 · 2022 Application Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for extension of time to serve notice of appeal and validation of late service, arising from an election petition appeal
Decision
Application struck out as unnecessary, with costs to the respondents

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Holding

The Court held that rule 29 of the Parliamentary Elections (Election Petitions) Rules permits notice of appeal to be given either orally at the time judgment is given or in writing, but not both. An oral notice need not comply with the contents prescribed for written notices under rule 76(3) of the Court of Appeal Rules, as rule 29 is a self-contained provision prescribing no particular form. Since the applicant gave a valid oral notice of appeal indicating intention to appeal the entire judgment, he had elected and waived his right to proceed by written notice. His application for extension of time to serve or validate the written notice was therefore unnecessary and was struck out with costs.

Facts

The applicant was dissatisfied with the judgment dismissing his High Court election petition at Jinja. At the time judgment was delivered on 18 October 2021, his counsel gave an oral statement that the applicant intended to appeal the entire judgment and orders. The applicant subsequently filed a written notice of appeal on 22 October 2021, but the signed and sealed copies were obtained after the seven-day statutory period for service. He therefore applied for extension of time to serve the written notice of appeal and for validation of its late service. The first respondent opposed the application, contending the oral notice did not comply with rule 76(3) of the Court of Appeal Rules, while the second respondent contended that having elected the oral mode, the applicant could not also pursue the written notice. The memorandum of appeal was lodged within time, eleven days after the oral notice.

Issues

  1. Whether the oral notice of appeal given under rule 29 of the Parliamentary Elections (Election Petitions) Rules was valid in law.
  2. Whether an oral notice of appeal must comply with the contents prescribed for written notices under rule 76(3) of the Judicature (Court of Appeal Rules) Directions.
  3. Whether, having given a valid oral notice of appeal, the application for extension of time to serve the written notice of appeal was necessary and competent.

Orders

  • Application struck out with costs to the respondents.

Key headnotes

Election Petitions — Notice of Appeal — Oral Notice under Rule 29
Rule 29 of the Parliamentary Elections (Election Petitions) Rules is a self-contained provision permitting a notice of appeal to be given orally at the time judgment is delivered, and prescribes no particular form or contents for such oral notice.
Election Rules — Oral Notice Need Not Comply with Written Notice Requirements
The contents prescribed for a written notice of appeal under rule 76(3) of the Judicature (Court of Appeal Rules) Directions do not apply to an oral notice of appeal given under rule 29 of the Parliamentary Elections (Election Petitions) Rules; the Court of Appeal Rules make no provision for an oral notice given at the time judgment is delivered.
Election Petitions — Modes of Appeal — Election and Waiver
By using the disjunctive 'either' and 'or', rule 29 requires an intending appellant to elect one of two mutually exclusive modes of giving notice of appeal; a party who gives an oral notice of appeal waives the right to proceed by written notice, and the two routes carry different timelines for filing the memorandum of appeal.
Applications — Mootness — Application Rendered Unnecessary by Valid Prior Step
Where a party has given a valid oral notice of appeal, an application for extension of time to serve or to validate late service of a written notice of appeal is unnecessary and may be struck out with costs as an abuse of process.

Legislation cited (10)

  • Judicature (Court of Appeal Rules) Directions r.2(2)
  • Judicature (Court of Appeal Rules) Directions r.5
  • Judicature (Court of Appeal Rules) Directions r.43(1)
  • Judicature (Court of Appeal Rules) Directions r.43(2)
  • Judicature (Court of Appeal Rules) Directions r.43(3)
  • Judicature (Court of Appeal Rules) Directions r.44(1)
  • Judicature (Court of Appeal Rules) Directions r.76
  • Parliamentary Elections (Election Petitions) Rules r.29
  • Parliamentary Elections (Election Petitions) Rules r.30
  • Parliamentary Elections (Election Petitions) Rules r.36

Cases cited (4)

  • Kenya Capital Corporation Vs John Ndung'u; Civil Appeal No. 163 of 1997
  • Kubeketerya James v Waira Kiwalabye and Electoral Commission (Election Petition Appeal No. 97 of 2016)
  • Banning v Wright (Inspector of Taxes) [1972] 2 All ER 987
  • Ross T. Smith & Co Ltd v T.O. Bailey Son & Co. [1940] 3 All ER 60
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.