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Kyagulanyi v Museveni & 2 Others (Miscellaneous Application 4 of 2021)

Supreme Court · [2021] UGSC 69 · 2021 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion for extension of time to file additional affidavits in a pending presidential election petition.
Decision
Application for extension of time dismissed; the applicant was not granted leave to file the additional affidavits.

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Holding

The applicant sought to enlarge time to file over 200 additional affidavits in his presidential election petition. The Supreme Court held that an extension under Rule 17 of the Presidential Elections (Election Petitions) Rules is a discretion that must be exercised judiciously and requires the applicant to demonstrate special circumstances, assessed against the constitutional 45-day limit for determining the petition (Article 104; section 59(3)). The applicant's explanations for delay were not credible, he was guilty of dilatory conduct, and granting the application would prejudice the respondents (left only six days to answer 200 affidavits) and deprive the Court of adequate time to give a reasoned judgment. The application was dismissed by a majority of 8 to 1, with costs in the cause.

Facts

General elections were held in Uganda on 14 January 2021, and the Electoral Commission declared the first respondent the validly elected President on 16 January 2021. The applicant filed Presidential Election Petition No. 1 of 2021 on 1 February 2021 challenging the result. At a scheduling conference on 11 February 2021 the Court directed the applicant to file all affidavits by Sunday 14 February 2021, the respondents to reply by 20 February 2021, and any rejoinder by 23 February 2021, and instructed the Registry to reject documents filed out of time. The applicant filed 53 affidavits on 14 February 2021 and attempted to file further affidavits on 15 February 2021, which the Registrar rejected as out of time. On 17 February 2021 the applicant applied to enlarge time to file and serve over 200 compiled affidavits, citing difficulties such as witnesses held in detention, a military siege of party offices lifted only on 14 February, and obstruction of his evidence-gathering. The respondents opposed the application, alleging dilatory conduct and falsehoods in the supporting affidavits.

Issues

  1. Whether the applicant had established that special circumstances existed to warrant an extension of time for filing additional affidavit evidence, given the 45 days prescribed under section 59(3) of the Presidential Elections Act for determining the petition.

Orders

  • Application dismissed by a majority of 8 to 1.
  • Costs in the cause.

Key headnotes

Extension of Time — Special Circumstances — Judicial Discretion
The power to enlarge time under Rule 17 of the Presidential Elections (Election Petitions) Rules is a judicial discretion that must be exercised judiciously and in accordance with reason and justice; the party seeking the extension bears the burden of demonstrating that special circumstances exist making it expedient for the court to grant it.
Presidential Election Petitions — 45-Day Constitutional Timeframe (Article 104)
The 45-day period for determining a presidential election petition fixed by Article 104 of the Constitution and section 59(3) of the Presidential Elections Act is mandatory and the court has no power to extend it; any application to enlarge time for filing evidence must be weighed against that fixed constraint.
Extension of Time — Dilatory Conduct
A party who undertakes to file evidence, delays filing until the last moment, and then fails to apply for an extension at the earliest opportunity after his documents are rejected is guilty of dilatory conduct that disentitles him to an extension of time.
Pleadings Distinguished from Affidavit Evidence
An affidavit is evidence, not a pleading; the close of pleadings (the petition and the answers thereto) is distinct from the filing of affidavit evidence, so an assertion that pleadings remain ongoing cannot justify the late filing of affidavits.
Additional Affidavits — Prejudice and Proportionality
In deciding whether to admit further affidavits in an election petition the court must consider the nature, context and extent of the new material; where the volume is so substantial as to make it difficult for the opposing party to respond within the statutory timeframe, the court must exercise its discretion with abundant caution and may refuse the application.
Supreme Court Rules — Scope of Application
Rule 13 of the Supreme Court Rules does not apply to presidential election petitions because Rule 2(1) limits the scope of those Rules to appeals from the Court of Appeal and the Constitutional Court, so the Registrar has no power under that Rule to receive documents outside the time set by the court.

Legislation cited (13)

  • Civil Procedure Act s.98
  • Civil Procedure Act s.100
  • Presidential Elections (Election Petitions) Rules 2001 r.5
  • Presidential Elections (Election Petitions) Rules 2001 r.8
  • Presidential Elections (Election Petitions) Rules 2001 r.14
  • Presidential Elections (Election Petitions) Rules 2001 r.15
  • Presidential Elections (Election Petitions) Rules 2001 r.17
  • Supreme Court Rules r.2(1)
  • Supreme Court Rules r.2(2)
  • Supreme Court Rules r.13
  • Constitution of the Republic of Uganda art.104
  • Constitution of the Republic of Uganda art.128(2)
  • Presidential Elections Act s.59(3)

Cases cited (7)

  • Joseph Initiative Ltd v Akugizibwe Joselyne (Miscellaneous Application No. 51 of 2018)
  • Molly Kyalikunda Turinawe and 4 Others v Engineer Ephraim Turinawe and Another (Civil Application No. 27 of 2010)
  • Uganda v Ntambi (Criminal Application No. 8 of 2019)
  • Sirasi Bitaitana and 4 Others v Emanuel Kananura (Civil Appeal No. 47 of 1976)
  • Anthony Okello v Ojok B. Leo and Others (Miscellaneous Application No. 261 of 2006)
  • Raila Odinga and 5 Others v Independent Electoral and Boundaries Commission and 3 Others (Petition Nos. 5, 3 & 4 of 2013)
  • D.Venkata Reddy v R. Sultan & Ors, 1976 SCR (3) 445
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.