Wakilii

Kyagulanyi Ssentamu Robert v Yoweri Museveni Tibuhaburwa and Others (Miscellaneous Application 4 of 2021)

Supreme Court · [2021] UGSC 77 · 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 presidential election petition
Decision
Application for extension of time dismissed by a majority of 8 to 1; the applicant subsequently withdrew the petition before judgment.

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Holding

The applicant sought an extension of time to file approximately 200 additional affidavits in his presidential election petition, after filing affidavits late. By a majority of eight to one, the Supreme Court dismissed the application. It held that no special circumstances existed to justify exercising its discretion under Rule 17 of the Presidential Elections (Election Petitions) Rules: the applicant's explanations lacked credibility, he was guilty of dilatory conduct in not applying earlier, and an affidavit is evidence rather than a pleading. Granting the extension would prejudice the respondents and erode the strict 45-day constitutional timeframe under Article 104 and section 59(3) of the Presidential Elections Act, which the Court has no power to extend.

Facts

General elections were held in Uganda on 14 January 2021, with the applicant and the 1st respondent among eleven candidates. On 16 January 2021 the Electoral Commission declared the 1st respondent the validly elected President. The applicant filed Presidential Election Petition No. 1 of 2021 on 1 February 2021, challenging the result. Pleadings closed on 6 February 2021. At a scheduling conference on 11 February 2021 the Court set timelines, directing the applicant to file all affidavits by 14 February 2021 and reminding the parties of the 45-day constitutional limit. The applicant filed 53 affidavits at the last hour on 14 February. He attempted to file further affidavit volumes on 15 February, which the Registrar rejected as out of time. On 17 February 2021 he lodged this application seeking extension of time to file about 200 additional affidavits gathered from witnesses across the country, some allegedly detained.

Issues

  1. Whether the applicant had established that special circumstances existed to warrant the extension of time for filing additional 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 eight to one.
  • Costs in the cause.

Key headnotes

Electoral Law — Presidential Election Petitions — Strict 45-Day Constitutional Timeframe
Under Article 104 of the Constitution and section 59(3) of the Presidential Elections Act, a presidential election petition must be inquired into and determined within 45 days of filing, and the Court has no power to extend that period.
Civil Procedure — Extension of Time — Special Circumstances and Judicial Discretion
Rule 17 of the Presidential Elections (Election Petitions) Rules confers a discretion to enlarge time only where special circumstances exist, and that discretion must be exercised judiciously; the burden lies on the applicant to satisfy the Court that such special circumstances exist.
Civil Procedure — Extension of Time — Dilatory Conduct
An applicant who delays filing despite having the means to act, and who fails to apply for an extension at the earliest opportunity after his documents are rejected, is guilty of dilatory conduct that disentitles him to the Court's discretion.
Civil Procedure — Pleadings Distinguished from Evidence — Affidavits
An affidavit is evidence and not a pleading; accordingly the continued filing of affidavit evidence does not keep pleadings open once the petition and answers have been filed.
Supreme Court Rules — Scope of Application — Rule 13
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.

Legislation cited (12)

  • Civil Procedure Act s.98
  • Civil Procedure Act s.100
  • Presidential Elections (Election Petitions) Rules r.5
  • Presidential Elections (Election Petitions) Rules r.8
  • Presidential Elections (Election Petitions) Rules r.14
  • Presidential Elections (Election Petitions) Rules r.15
  • Presidential Elections (Election Petitions) Rules r.17
  • Supreme Court Rules r.2
  • Supreme Court Rules r.13
  • Constitution of Uganda Article 104
  • Constitution of Uganda Article 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 & 5 Ors v The Independent Electoral and Boundaries Commission & 3 Ors, Petition No. 5, 3 & 4 of 2013 (Supreme Court of Kenya)
  • 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.