Wakilii

Joy Kafura Kabatsi v Anifa Kawooya Bagirana (Miscellaneous Application 86 of 2016)

High Court · [2016] UGHC 28 · 2016 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of High Court ruling striking out election petition as premature
Decision
Application for review dismissed. The earlier ruling striking out the election petition as premature stands.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the court's earlier decision striking out the election petition as premature for being filed before publication of results in the Gazette was not an error apparent on the face of the record. Section 60(3) of the Parliamentary Elections Act prescribes the substantive legal position that jurisdiction to try an election petition is conferred upon publication of results. An election petition filed before gazetting is a nullity. The decision in Mulasa v Electoral Commission, holding that premature petitions are incompetent, applies with equal force to parliamentary election petitions. The applicant's remedy lay by way of appeal, not review. Application for review dismissed with costs.

Outcome

Application for review dismissed. The earlier ruling striking out the election petition as premature stands.

Facts

The parties contested for Woman Member of Parliament for Sembabule District in February 2016. The respondent was declared winner. On 21 March 2016, before publication of results in the Gazette (which occurred on 23 March 2016), the applicant filed an election petition challenging the results. The respondent subsequently filed Miscellaneous Application No. 66 of 2016 seeking dismissal of the petition as premature. The High Court struck out the petition for being incompetent, holding it was filed before the statutory requirement for gazetting was fulfilled. The applicant then filed the present application seeking review of that decision, arguing that Section 60(3) of the Parliamentary Elections Act is procedural and directory, not mandatory, and that the early filing was a curable irregularity.

Issues

  1. Whether the High Court erred in striking out the election petition for being filed prematurely before publication of results in the Gazette, such that the decision amounts to an error apparent on the face of the record justifying review under Order 46 rules 1 and 2 of the Civil Procedure Rules.
  2. Whether Section 60(3) of the Parliamentary Elections Act, requiring petitions to be filed within 30 days after publication of results in the Gazette, is a mandatory or directory provision.
  3. Whether the proper remedy for a party aggrieved by the striking out of a premature election petition is by way of review or appeal.

Orders

  • Application for review dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Review — Grounds for Review — Error Apparent on Face of Record
An error apparent on the face of the record must be an evident error which does not require any extraneous matter to show its incorrectness. It must be so manifest and clear that no court would permit such error to remain on record. Where an error can only be established by a long drawn process of reasoning or on points where there may conceivably be two opinions, it cannot be said to be an error apparent on the face of the record.
Civil Procedure — Review vs Appeal — Distinction
An erroneous view of evidence or of law is not a ground for review though it may be a good ground for an appeal. A point which may be a good ground of appeal may not be a ground for an application for review. Where a party is dissatisfied with the manner a court has interpreted a provision of law, the proper remedy is by way of appeal, not review by the same court.
Electoral Law — Election Petitions — Premature Filing — Competence
An election petition filed before publication of election results in the Gazette as required by Section 60(3) of the Parliamentary Elections Act is premature and incompetent. Jurisdiction to try and investigate an election is conferred on the court upon publication of the election results in the Gazette. A petition that is a nullity does not exist and cannot be fixed for hearing; the proper order is to strike it out.
Electoral Law — Election Petitions — Time Limits — Liberal Construction vs Jurisdictional Prerequisites
While courts should take a liberal view with regard to time limits set out in Part X of the Parliamentary Elections Act, utilizing Rule 19 of the Parliamentary Election Petition Rules to expand or abridge time for particular actions, such liberal approach to time is contingent on the competence of the action before the court. The requirement of gazetting results before filing a petition is a jurisdictional prerequisite, not merely a procedural time limit susceptible to liberal construction.

Legislation cited (7)

  • Parliamentary Elections Act No. 17 of 2005 s.60(3)
  • Parliamentary Elections Act No. 17 of 2005 s.62
  • Local Government Act s.138(4)
  • Civil Procedure Act s.82
  • Civil Procedure Rules O.46 r.1
  • Civil Procedure Rules O.46 r.2
  • Parliamentary Election Petition Rules r.19

Cases cited (10)

  • Francis Xavier Mulindwa and Another v Hajji Musa Sentongo (High Court Election Appeal No. 1 of 2002)
  • Sitenda Sebalu v Sam K Njuba and Another (Election Petition Appeal No. 26 of 2007)
  • Mukasa Anthony Harris v Dr Michael (Appeal No. 18 of 2007)
  • Thuo Mathenge v Nderitu Gachagua and 2 Others (Election Petition No. 1 of 2013)
  • Mohamed Allibhai v W E Bukenya and Another (SCCA No. 56 of 1996)
  • Abasi Balinda v Frederick Kangwamu and Another [1963] 1 EA 557
  • Kanyabwera v Tumwebaze [2005] 2 EA 86
  • Nyamogo and Nyamogo Advocates v Kogo [2001] 1 EA 173
  • National Bank of Kenya Ltd v Njau [1995-1998] 2 EA 249
  • Musiitwa Herbert Mulasa v Electoral Commission and Another (Court of Appeal Election Application No. 5 of 2006)

Full judgment

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

Joy Kafura Kabatsi v Anifa Kawooya Bagirana (Miscellaneous Application 86 of 2016) [2016] UGHC 28 (14 June 2016)
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.