Wakilii

Bright Tom Amooti v Birihairwe Eryeza (Miscellaneous Election Petition Application No. 43 of 2022)

Court of Appeal · [2022] UGCA 150 · 2022 Application Granted — Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion to strike out an election petition appeal for failure to take an essential step within the prescribed time
Decision
Application allowed; Election Petition Appeal No.81 of 2021 struck out as incompetent with costs to the applicant

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court of Appeal held that an application to strike out an appeal is not rendered a nullity merely because it cites a wrong law where the correct law (Rule 82) is also cited and no party is prejudiced. Rule 82 imposes no time limit and a preliminary point of law may be raised at any time, including during hearing. Where a notice of appeal is in writing, the memorandum of appeal must be filed within seven days under Rule 30(b) of the Parliamentary Elections (Election Petitions) Rules. The respondent filed his memorandum 24 days after the notice, out of time, without seeking extension. The Court allowed the application and struck out the election petition appeal as incompetent.

Outcome

Application allowed; Election Petition Appeal No.81 of 2021 struck out as incompetent with costs to the applicant

Facts

The applicant and the respondent contested the 2021 parliamentary election for Kyaka Central County, Kyegegwa District, held on 14 January 2021. The applicant was declared the duly elected Member of Parliament. The respondent challenged the result in High Court Election Petition No.10 of 2021, which was decided in the applicant's favour on 29 October 2021. The respondent filed a notice of appeal on the same day (29 October 2021). The memorandum of appeal was due within seven days of the written notice, by 5 November 2021, but the respondent filed it on 22 November 2021, twenty-four days after the notice of appeal. The respondent did not apply for extension of time or seek leave to validate the late filing, instead maintaining that the memorandum had been filed in time. The applicant applied to strike out the resulting Election Petition Appeal No.81 of 2021 for failure to take an essential step within the prescribed time.

Issues

  1. Whether the application was incompetent for having been brought under the wrong law and without a summary of evidence, list of authorities, witnesses and documents.
  2. Whether an application to strike out an appeal under Rule 82 may be filed after conferencing or during the hearing.
  3. Whether the Memorandum of Appeal in Election Petition Appeal No.81 of 2021 was filed within the time prescribed by law.

Orders

  • The preliminary objections raised by counsel for the respondent are dismissed for lack of merit.
  • The application is allowed.
  • Election Petition Appeal No.81 of 2021 is struck out for being incompetent.
  • Costs of the application and in the court below to the applicant.

Rules and key headnotes

Civil Procedure — Citation of Wrong Law — Effect on Competence of Application
Where an application cites the wrong law or omits to cite any law but the court has jurisdiction to grant the order sought, the irregularity may be ignored and the correct law inserted, provided the error is not of a fundamental nature and causes no prejudice to the parties.
Civil Procedure — Affidavit Evidence as Pleading — Summary of Evidence Not Required
Where an application is supported by affidavit evidence which is itself the pleading and contains the full evidence relied upon, there is no need to attach a separate summary of evidence, and its absence occasions no injustice or trial by ambush.
Civil Procedure — Striking Out Appeal — Rule 82 Imposes No Time Limit
An application under Rule 82 of the Court of Appeal Rules to strike out a notice of appeal or an appeal may be brought at any time, either before or after the institution of the appeal, and is not barred by being filed after conferencing or during the hearing.
Electoral Law — Election Petition Appeals — Time for Filing Memorandum of Appeal
Where a written notice of appeal has been given, the memorandum of appeal in an election petition appeal must be filed within seven days after the notice under Rule 30(b) of the Parliamentary Elections (Election Petitions) Rules; failure to file within that time without sufficient reason or an application for extension renders the appeal liable to be struck out.
Electoral Law — Election Petition Appeals — Higher Duty of Diligence
An intending appellant in an election petition appeal bears an even higher duty to expeditiously pursue every step in the appeal, because election appeals are required to be heard and determined expeditiously; failure to take an essential step within the prescribed time renders any preceding legal process a nullity as against the defaulting party.

Legislation cited (21)

Cases cited (13)

  • Kasibante Moses v Electoral Commission (Election Petition Appeal No. 07 of 2012)
  • Abiriga Ibrahim v Musema Mudathir Bruce (Election Petition Appeal Application No. 24 of 2016)
  • Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
  • Kasirye Byaruhanga & Co. Advocates v Uganda Development Bank (Civil Appeal No. 2 of 1997)
  • Mulindwa George William v Kisubika Joseph (Civil Appeal No. 12 of 2014)
  • Horizon Coaches Ltd v Edward Rutangaranga (Civil Application No. 18 of 2009)
  • Pamento Senalulu v Nakito (Civil Appeal No. 04 of 2008)
  • Miramira David v Centenary Rural Development Bank (Miscellaneous Application No. 1849 of 2013)
  • Makula International Ltd v His Eminence Cardinal Nsubuga (1982) HCB 11
  • Sorowen James Kapus vs. Cherop Stephen HCT-04-CV-CR-067-2015
  • Saggu v Road Master Cycles (U) Ltd [2002] 1 EA 258
  • Nanjibhai Prabhudas and Company Limited vs. Standard Bank Limited [1968] EA
  • S.B. Kinyatta v Subrahanian (Civil Application No. 108 of 2003)

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Bright Tom Amooti v Birihairwe Eryeza (Miscellaneous Election Petition Application No. 43 of 2022) [2022] UGCA 150 (26 April 2022)
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.