Electoral Commission v Lubega (Election Petition Appeal 17 of 2022)

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.

Holding

The Court held that a notice of appeal is duly lodged upon its presentation in duplicate under Rule 76(1), not upon the registrar's later endorsement; the registrar's duty under Rule 11 is merely to endorse the date of lodging. Time for service under Rule 78(1) therefore ran from presentation on 4 October 2021, so service on 13 October 2021 was out of time. The respondent bore the burden of proving timely service, filed no affidavit in reply, and made no application to extend time despite that remedy being available. The Court struck out Election Petition Appeal No. 36 of 2021 for failure to take an essential step, ordering each party to bear its own costs given the slim vote margin.

Outcome

Application allowed; Election Petition Appeal No. 36 of 2021 struck out

Facts

George Willy Lubega, Josephat Tumwesigye and Leonard Mbazira contested the parliamentary election for Bugangaizi South Constituency held on 14 January 2021. Tumwesigye was declared elected with 12,801 votes against Lubega's 12,331. Lubega petitioned the High Court at Masindi challenging Tumwesigye's qualifications and the result; the petition was dismissed on 28 September 2021. Lubega lodged Election Petition Appeal No. 36 of 2021. He presented his notice of appeal at the High Court at Masindi on 4 October 2021, but the registrar endorsed it as lodged on 6 October 2021. He served the endorsed notice on the Electoral Commission on 13 October 2021. The Electoral Commission applied to strike out the appeal, contending the notice was served outside the seven days prescribed by Rule 78(1). Lubega argued time ran only from the registrar's endorsement and filed no affidavit in reply.

Issues

1. When a notice of appeal is deemed to have been duly lodged under the Court of Appeal Rules — upon presentation or upon endorsement by the registrar.
2. Whether the respondent served the notice of appeal within the seven days prescribed by Rule 78(1) of the Court of Appeal Rules.
3. Whether the election petition appeal should be struck out under Rule 82 for failure to take an essential step within the prescribed time.

Orders

• Election Petition Appeal No. 36 of 2021 is struck out for failure by the Respondent to take an essential step in its institution.
• Each party to bear its own costs in the Court of Appeal and the High Court.

Rules and key headnotes

Legislation cited (18)

• Judicature (Court of Appeal Rules) Directions SI 13-10 r.43(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.43(2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.78(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.82
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.10(3)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.11
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.13
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.76(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.83(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.104(1)
• Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.29
• Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.31
• Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.36
• Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.27
• Parliamentary Elections Act s.66(2)
• Parliamentary Elections Act s.62
• Parliamentary Elections Act s.93
• Civil Procedure Act s.27(2)

Cases cited (11)

• Kasibante Moses v Electoral Commission (Election Petition Application No. 7 of 2012)
• Kubeketerya James v Waira Kyewalabye & Another (Election Petition Appeal No. 97 of 2016)
• Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
• S. B. Kenyatta & Another v Subramanian & Another (Civil Application No. 108 of 2003)
• Ebil Fred v Ocen Peter (Election Petition Applications No. 17 & 24 of 2017)
• Banco Arabe Espanol v Bank of Uganda (Civil Application No. 8 of 1998)
• Sanjay Tanna & Another v Ofwono Yeri Apollo (Election Application No. 8 of 2006)
• Sitenda Sebalu v Sam K. Njuba & Another (Election Appeal No. 26 of 2007)
• Regina v Soneji & Another [2005] UKHL 49
• Wilfred Nuwagaba & Another v Protazio Begumisa (Election Petition Appeals No. 9 & 10 of 2022)
• Aisha Kabanda Nalule v Lydia Daphine Mirembe & 2 Others (Election Petition Appeal No. 90 of 2016)

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