Wakilii

Kabatsi v Kawooya and Another (Civil Application 30 of 2007)

Supreme Court · [2007] UGSC 27 · 2007 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion for extension of time to validate a notice of appeal and to file the intended election petition appeal out of time
Decision
Application allowed; notice of appeal validated and time extended to lodge the record of appeal

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The single judge held that, by virtue of section 101(3) of the Parliamentary Elections Act 2005 and Rule 36 of SI 141-2, SI 141-2 and the Supreme Court Rules together govern election petition appeals to the Supreme Court, with the Supreme Court Rules applying with necessary modification. As SI 141-2 contains no rule directly applicable to such an application, the motion was competently brought under Rule 5 of the Supreme Court Rules and was not incompetent. Although ignorance of the law is no defence, the absence of clear rules regulating election petition appeals to the Supreme Court engaged the interest of justice. The application was allowed, the notice of appeal validated and time extended to lodge the record of appeal.

Facts

The applicant and the first respondent contested the Sembabule district woman Member of Parliament seat on 23 February 2006. The second respondent, the Electoral Commission, declared the first respondent the winner. The applicant petitioned the High Court at Masaka, which allowed the petition and ordered a by-election. The first respondent appealed to the Court of Appeal, which on 5 October 2007 allowed the appeal, set aside the High Court judgment and dismissed the petition. Dissatisfied, the applicant filed a purported notice of appeal in the Court of Appeal on 16 October 2007, intending to appeal to the Supreme Court, and requested a copy of the proceedings the same day. The applicant and her former lawyers believed the appeal was governed by the Supreme Court Rules, which allow fourteen days. After the Supreme Court's ruling in Kiryapawo (holding that SI 141-2 governs such appeals, with a seven-day period that had expired) was drawn to her attention, she applied for leave to validate the notice and institute the appeal out of time.

Issues

  1. Whether the Parliamentary Elections (Election Petitions) Rules SI 141-2 apply to parliamentary election petition appeals to the Supreme Court.
  2. Whether the application for extension of time was competent, having been made under Rule 5 of the Supreme Court Rules.
  3. Whether the applicant had shown sufficient grounds, in the interest of justice, to justify an extension of time to validate the notice of appeal and institute the appeal out of time.

Orders

  • The notice of appeal filed on 16th October 2007 is deemed to have been properly filed and served on the respondents and is validated.
  • The applicant must institute the intended appeal by lodging the record of appeal within seven days from the date of the ruling, the period 22nd to 26th December 2007 being excluded.
  • The costs of the application shall abide the outcome of the intended appeal.

Key headnotes

Electoral Law — Parliamentary Election Petition Appeals — Rules Applicable to Appeals to the Supreme Court
By virtue of section 101(3) of the Parliamentary Elections Act 2005 and Rule 36 of SI 141-2, the Parliamentary Elections (Election Petitions) Rules SI 141-2 and the Supreme Court Rules together regulate election petition appeals to the Supreme Court, the Supreme Court Rules applying with such modification as the interest of justice and expedition require until fresh rules are made.
Civil Procedure — Competence of Application — Choice of Enabling Rule
Where SI 141-2 contains no rule directly applicable to the institution of an application for extension of time, such an application is competently and correctly brought under Rule 5 of the Supreme Court Rules, which confers authority to enlarge time.
Civil Procedure — Extension of Time — Interest of Justice and Mistake of Counsel
Although ignorance of the law is not a defence, the absence of clear rules regulating the filing of election petition appeals in the Supreme Court, coupled with a mistake of the applicant's former counsel as to the applicable law, may engage the interest of justice so as to justify an extension of time.

Legislation cited (15)

  • Parliamentary Elections Act 2005 s.66
  • Parliamentary Elections Act 2005 s.66(3)
  • Parliamentary Elections Act 2005 s.93
  • Parliamentary Elections Act 2005 s.93(1)
  • Parliamentary Elections Act 2005 s.93(3)
  • Parliamentary Elections Act 2005 s.101
  • Parliamentary Elections Act 2005 s.101(3)
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 r.19
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 r.36
  • Supreme Court Rules r.2(2)
  • Supreme Court Rules r.5
  • Supreme Court Rules r.42
  • Supreme Court Rules r.72
  • Supreme Court Rules r.4(e)
  • Interpretation Act

Cases cited (1)

  • Loi Kagen Kiryapawo and Another v Gole Nicholas Davis (Civil Application No. 15 of 2007)
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.