Wakilii

Kolu v Ossiya Alemu (Election Petition Application No. 03 of 2023)

Court of Appeal · [2024] UGCA 364 · 2024 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out a Notice of Appeal arising from an election petition appeal
Decision
Notice of Appeal struck out; respondent ordered to pay the costs of the application

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Holding

The applicant sought to strike out the respondent's Notice of Appeal against the dismissal of an election petition, alleging dilatory failure to lodge a memorandum and record of appeal. The court held that the Notice of Appeal had been lodged on 30 January 2023, ten days after the High Court judgment of 20 January 2023, outside the seven days prescribed by rule 29 of the Parliamentary Elections (Election Petitions) Rules, and was therefore invalid. An invalid notice could not be withdrawn under rule 94, which applies only to instituted appeals. With an invalid document on its record, the court's only option was to strike it out. The Notice of Appeal was struck out and the respondent ordered to pay the costs of the application.

Facts

The applicant won the 2021 parliamentary election for Toroma County, Katakwi District, and was gazetted as Member of Parliament. The respondent, a defeated candidate, challenged the result by Election Petition No. 2 of 2021 in the High Court at Soroti, which was dismissed on 20 January 2023. On 30 January 2023 the respondent lodged a Notice of Appeal and requested the record of proceedings, which were served on the applicant's lawyers on 6 February 2023. The respondent took no further step to lodge a memorandum or record of appeal. Although the certified proceedings were ready for collection from 29 March 2023 and the respondent's advocates were informed by the Registrar on 17 April 2023, no appeal was filed. The respondent claimed to have withdrawn the Notice of Appeal, the Notice of Withdrawal being received by the Registrar on 28 April 2023, but there was no evidence it was served on the applicant or his advocates.

Issues

  1. Whether the respondent's Notice of Appeal should be struck out for failure to take essential steps in instituting an appeal within the prescribed time.
  2. Whether rule 94 of the Court of Appeal Rules, which governs withdrawal of an instituted appeal, applies to the withdrawal of a Notice of Appeal.
  3. Whether the application was overtaken by events by reason of the respondent's purported withdrawal of the Notice of Appeal.

Orders

  • Notice of Appeal struck out.
  • Respondent to pay the costs of the application.

Key headnotes

Electoral Law — Appeals — Notice of Appeal — Statutory time limit under rule 29
A Notice of Appeal in an election matter must be lodged within the seven days prescribed by rule 29 of the Parliamentary Elections (Election Petitions) Rules; a Notice of Appeal lodged outside that period is invalid.
Civil Procedure — Striking out — Invalid Notice of Appeal cannot be withdrawn
An invalid Notice of Appeal cannot be the subject of a valid withdrawal; where such an invalid document is on the court's record, the court's only option is to strike it out.
Civil Procedure — Withdrawal of appeal — Rule 94 confined to instituted appeals
Rule 94 of the Court of Appeal Rules governs the withdrawal of an appeal that has been instituted under rule 83 and does not apply to the withdrawal of a mere Notice of Appeal where no appeal has been instituted.
Civil Procedure — Default in instituting appeal — Deemed withdrawal and mandatory costs under rule 84
Where an intending appellant fails to institute an appeal within the prescribed time after lodging and serving a Notice of Appeal, the notice is deemed withdrawn under rule 84 and the appellant is liable to pay the resulting costs, which are mandatory and waivable only by order of the court.

Legislation cited (11)

  • Parliamentary Elections (Interim Provisions) (Election Petitions) Rules S.I 141-2 rr.30, 31, 36
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 rr.43(1), 43(2), 82, 88
  • Parliamentary Elections Act s.66(2)
  • Parliamentary Elections (Election Petitions) Rules rr.29, 30(b), 31, 33, 34
  • Court of Appeal Rules r.3(b)
  • Court of Appeal Rules r.3(c)
  • Court of Appeal Rules r.76
  • Court of Appeal Rules r.82
  • Court of Appeal Rules r.83
  • Court of Appeal Rules r.84
  • Court of Appeal Rules r.94

Cases cited (5)

  • Geoffrey Omara v Charles Andiro Gutomoi Abacacon & Another (Election Petition Appeal No. 042 of 2017)
  • Wakayima Musoke Nsereko Hannington & Electoral Commission v Hamisi Musoke Walusimbi (Election Petition Appeals Nos. 1, 2 and 35 of 2022)
  • Kirumira Hassan v Magara Patricia (Election Petition Appeal No. 13 of 2021)
  • Igeme Nathan Samson Nabeta v Mwiru Paul (Election Petition Appeal No. 046 of 2022)
  • Kagyerero Ronald v Muwuma Milton Kalulu & Another (Election Petition Appeal No. 24 of 2021)
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.