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Kasule v Ruyonga and Another (Civil Application 692 of 2022)

Court of Appeal · [2024] UGCA 132 · 2024 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by Notice of Motion to review and set aside the Court of Appeal's own decision in a parliamentary election petition appeal
Decision
Application for review dismissed; the Court of Appeal's judgment in Election Petition Appeal No. 39 of 2021 stands

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Holding

The applicant sought review of the Court of Appeal's decision dismissing his parliamentary election petition appeal, contending it was per incuriam, null and void, and rendered without a fair hearing. The Court held that it is not a court of unlimited jurisdiction and has no power to sit on appeal in or review its own decision; rule 2(2) of the Court of Appeal Rules does not confer such jurisdiction absent grounds rendering a judgment null and void. The applicant had been heard at every stage, so his right to a fair hearing under Article 28(1) was satisfied, and the impugned judgment was neither per incuriam nor null and void. Invoking the principle of finality of litigation, the Court dismissed the application.

Facts

The applicant and the first respondent contested the seat of directly elected Member of Parliament for Hoima West Constituency in the elections of 14 January 2021. The Electoral Commission returned the first respondent as validly elected with 6,369 votes against the applicant's 6,212. The applicant's application for a recount at the Chief Magistrate's Court was dismissed. He petitioned the High Court at Masindi, where several interlocutory applications, including one for discovery, were dismissed and additional affidavits struck out; the petition itself was dismissed. His Election Petition Appeal No. 39 of 2021 to the Court of Appeal was dismissed with costs, the court declining to consider grounds 1 to 7 on the basis that they offended the rules requiring separate appeals within seven days of interlocutory rulings. The applicant then applied to the Court of Appeal to review and set aside that judgment, alleging it was per incuriam and rendered in breach of his right to a fair hearing.

Issues

  1. Whether the Court of Appeal has jurisdiction to review and set aside its own judgment under rule 2(2) of the Judicature (Court of Appeal) Rules.
  2. Whether the Court of Appeal's decision in Election Petition Appeal No. 39 of 2021 was per incuriam and null and void for striking out grounds 1 to 7.
  3. Whether the applicant was denied his right to a fair hearing under Article 28(1) of the Constitution.
  4. What remedies, if any, are available to the applicant.

Orders

  • Application dismissed.
  • No order as to costs.

Key headnotes

Civil Procedure — Review — Jurisdiction of the Court of Appeal to review its own decision
The Court of Appeal is not a court of unlimited jurisdiction and has no power to sit on appeal in, or review and set aside, its own concluded decision; rule 2(2) of the Judicature (Court of Appeal) Rules does not confer jurisdiction to re-open a judgment absent grounds establishing that it is null and void.
Constitutional Law — Fair Hearing — Article 28(1)
The right to a fair hearing under Article 28(1) of the Constitution is satisfied where a party has been afforded, at every stage of the proceedings, the opportunity to present arguments and respond to allegations; the right is not breached merely because the party was unsuccessful and has alleged no bias or lack of independence.
Civil Procedure — Per Incuriam — Inherent Power under Rule 2(2)
A decision is per incuriam where it ignores a binding precedent or statutory provision in force; the inherent power under rule 2(2) to set aside null and void judgments is exercised only in exceptional circumstances and not to alter a judgment so as to give effect to what was not the intention of the court when it was given.
Electoral Law — Parliamentary Election Petitions — Finality of Court of Appeal Decisions
By section 66(3) of the Parliamentary Elections Act 2005, decisions of the Court of Appeal in parliamentary election petitions are final and mark the end of litigation, notwithstanding section 6 of the Judicature Act.
Civil Procedure — Finality of Litigation — Competing Principles
An application for review engages the competing principles of finality of litigation and the justice principle; allowing review without sufficient justification would open the floodgates to challenges to the court's decisions and defeat the finality of litigation.

Legislation cited (20)

  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.44(c)
  • Constitution of Uganda 1995 art.134
  • Judicature (Court of Appeal) Rules SI 13-10 rule 2(2)
  • Judicature (Court of Appeal) Rules SI 13-10 rule 35
  • Court of Appeal Rules rule 86(1)
  • Civil Procedure Act s.77
  • Civil Procedure Act s.80
  • Judicature Act s.6
  • Judicature Act s.10
  • Parliamentary Elections Act 2005 s.66
  • Parliamentary Elections Act 2005 s.66(1)
  • Parliamentary Elections Act 2005 s.66(3)
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 rule 29
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 rule 30
  • Evidence Act s.73
  • Evidence Act s.76
  • Oaths Act s.5
  • Oaths Act s.6
  • Civil Procedure Rules Order 19 rules 1 and 3

Cases cited (12)

  • Otim v Uganda (Supreme Court Criminal Appeal No. 14 of 2018)
  • Returning Officer Kampala and 2 Others v Catherine Naava Nabagesera (Civil Appeal No. 39 of 1997)
  • Musiitwa Herbert Mulasa v Electoral Commission and Hajji Jakira Mohamed (Court of Appeal Election Petition Application No. 6 of 2006)
  • Somani v Shirinkhanu (No. 2) 1971 EA 79
  • Serebe Apollo v Electoral Commission (Election Petition Application No. 1 of 2021)
  • National Social Security Fund and Another v Alcon International (Supreme Court Civil Appeal No. 15 of 2009)
  • Ms Fang Min v Belex Tours and Travels Limited (Supreme Court Civil Appeal No. 6 of 2013)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Makula International v H.E Cardinal Nsubuga [1982] HCB
  • Mohamed Hamid v Roko Construction (Supreme Court Civil Appeal No. 1 of 2003)
  • Lakhamshi Brothers Ltd v R. Raja and Sons 1966 EA 313
  • Benjoh Amalgamated Ltd & Muljibhai Coffee Estate Ltd v Kenya Commercial Bank Limited, Court of Appeal of Kenya: Civil Application No. Sup. 16 of 2012
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.