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Kakembo v Nsensebuse and Another (Election Petition Application 75 of 2016; Election Petition Application No. 28 of 2017)

Court of Appeal · [2017] UGCA 179 · 2017 Application to Validate Dismissed; Application to Strike Out Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated applications to strike out a notice of appeal for failure to take essential steps, and to extend time and validate late filing of the record of appeal in an election petition appeal.
Decision
Application to validate the late record of appeal dismissed; notice of appeal struck out; the intended appeal held not to lie.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that an intending appellant in an election petition appeal bears a personal, heightened duty to actively and expeditiously prosecute the appeal and cannot leave matters entirely to counsel. Although the memorandum of appeal was filed one day late and the record of appeal over 270 days late—breaching both the Parliamentary Elections (Interim Provisions) Rules (applied via s.172 of the Local Governments Act) and, alternatively, Rule 83(1) of the Court of Appeal Rules—the delay was not solely counsel's fault. The applicant's own inaction over many months constituted gross negligence and inexcusable dilatory conduct. The application to validate the late record was dismissed; the application to strike out the notice of appeal was allowed, and no appeal lay.

Outcome

Application to validate the late record of appeal dismissed; notice of appeal struck out; the intended appeal held not to lie.

Facts

Following a High Court judgment of 12 August 2016 dismissing Election Petition No. 33 of 2016, Bogere Susan Nsensebuse filed a notice of appeal on 18 August 2016 and a memorandum of appeal on 26 August 2016. The certified record of proceedings was ready by 18 September 2016, and Bogere prepared and delivered the bound record to his lawyers around 19 September 2016. However, his lawyers (M/s Lukwago & Co. Advocates) mistakenly failed to file the record of appeal within the prescribed time. Bogere did not check on the status of his appeal until 5 June 2017, when prompted by a call from the Court of Appeal about a hearing the next day. He then learned his lawyers had failed to file the record and had withdrawn. The record was filed on 5 June 2017, over 270 days after the notice of appeal. Kakembo Mansur Jamir applied to strike out the notice and intended appeal; Bogere applied to extend time and validate the late filing. The two applications were consolidated.

Issues

  1. Whether the intended appellant failed to take the essential steps required to institute the appeal within the prescribed time.
  2. Whether time should be extended and the late filing of the record of appeal validated where delay was attributed to counsel's negligence.
  3. Whether the intending appellant himself was guilty of gross negligence and inexcusable dilatory conduct.

Orders

  • Application No. 28 of 2017 (to extend time and validate the late record of appeal) dismissed for lack of merit.
  • Application No. 75 of 2016 allowed.
  • The notice of appeal struck out, the intended appellant having failed to take necessary steps to prosecute the appeal.
  • No appeal lies.
  • Costs in Application No. 28 of 2017 to be paid by the applicant.
  • Costs in Application No. 75 of 2016 to be paid by the respondent in that application.

Rules and key headnotes

Electoral Law — Election Petition Appeals — Duty of Intending Appellant to Prosecute Expeditiously
In an election petition appeal, the intending appellant bears a personal and heightened duty to actively and expeditiously take every step required to prosecute the appeal, and cannot abdicate that responsibility to counsel or the court registry.
Civil Procedure — Extension of Time — Negligence of Counsel and Dilatory Conduct of Party
The negligence of counsel will not automatically excuse a party's delay where the party himself is also guilty of gross negligence and inexcusable dilatory conduct in failing to monitor the progress of his appeal.
Electoral Law — Applicable Rules — Local Government Elections Appeals
By virtue of section 172 of the Local Governments Act, the Parliamentary Elections (Interim Provisions) Rules apply to appeals arising from local government elections for any matter not otherwise provided for.
Civil Procedure — Record of Appeal — Time for Institution and Composition
Under Rule 83(1) of the Court of Appeal Rules, an appeal must be instituted within sixty days of lodging the notice of appeal by filing the record of appeal, which includes the memorandum of appeal; a memorandum of appeal cannot be filed as a stand-alone document.

Legislation cited (7)

  • Local Governments Act s.172
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.30
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.31
  • Court of Appeal Rules SI 13-10 r.83(1)
  • Parliamentary Elections Act s.66(2)
  • Parliamentary Elections (Election Petitions) Rules r.33
  • Parliamentary Elections (Election Petitions) Rules r.34

Cases cited (8)

  • Kasibante Moses v Katongole Singh Marwaha (Court of Appeal Election Application No. 8 of 2012)
  • Kasibante Moses v Katongole Singh (Court of Appeal Election Application No. 7 of 2012)
  • Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
  • S.B. Kinyatta and Another v Subramanian and Another (Court of Appeal Civil Application No. 108 of 2003)
  • Kirya Grace Wanzala v Daudi Migereko and Another (Election Reference Application No. 39 of 2012)
  • Bakaluba Mukasa Peter and Another v Nalugo Mary Margret Sekiziyivu (Court of Appeal Election Petition No. 24 of 2011)
  • Abiriga Ibrahim v Musema Mudathir Bruce (Court of Appeal Election Application No. 24 of 2016)
  • Paul Omara v Aeon Julius Bua and 3 Others (Court of Appeal Election Petition Application No. 346 of 2016)

Full judgment

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

Kakembo v Nsensebuse and Another (Election Petition Application 75 of 2016; Election Petition Application No. 28 of 2017) [2017] UGCA 179 (14 June 2017)
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.