Wakilii

Kalibbala v Electral Commission (Misc Cause 93 of 2021)

High Court · [2024] UGHCCD 12 · 2024 Application Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review challenging the Electoral Commission's decision to nullify the applicant's nomination as a candidate for local council elections
Decision
Application struck out as incompetent for failure to exhaust statutory remedies

Observed later treatment

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Holding

Held that an application for judicial review is incompetent where the applicant failed to exhaust existing statutory remedies before seeking judicial review. The applicant did not lodge a written complaint with the Electoral Commission as required under Article 61(f) of the Constitution and Section 15 of the Electoral Commission Act before bringing the application. Judicial review is a remedy of last resort and where Parliament has provided statutory appeal procedures, a party must exhaust those procedures before resorting to judicial review. The application was struck out as premature and incompetent, with each party bearing their own costs given the Electoral Commission's failure to communicate its decision to the applicant in a timely manner.

Outcome

Application struck out as incompetent for failure to exhaust statutory remedies

Facts

The applicant was nominated by the Electoral Commission on 23 September 2020 as a candidate for local council elections sponsored by the National Unity Platform (NUP). On 25 January 2021, election day, the applicant discovered his name and photograph did not appear on the ballot paper. The applicant claimed he complained through his lawyers on the same day, but the Electoral Commission denied receiving that complaint. The Electoral Commission averred that on 27 October 2020, NUP informed them that the applicant's party endorsement had been obtained fraudulently and substituted another candidate. The applicant brought this judicial review application seeking declarations of illegality, refund of fees, and damages totalling UGX 248,000,000. The Electoral Commission raised preliminary objections that the applicant failed to exhaust statutory remedies under the Electoral Commission Act and that the application was an abuse of process based on fraud.

Issues

  1. Whether the application is competent before the court?
  2. Whether the impugned decision and actions of the Respondent were illegal, irrational or procedurally improper?
  3. What remedies are available to the parties?

Orders

  • Application struck out as incompetent and premature.
  • Each party to bear their own costs of the application.

Rules and key headnotes

Judicial Review — Exhaustion of Remedies — Statutory Appeal Procedures
Judicial review is a remedy of last resort. Where Parliament has provided statutory appeal procedures, those procedures must be exhausted before an application for judicial review can be entertained by the court. Non-exhaustion of existing remedies is a complete bar to an application for judicial review.
Electoral Law — Pre-Polling Complaints — Mandatory Procedure under Electoral Commission Act
Any complaint alleging irregularity with any aspect of the electoral process arising before and during polling must first be submitted in writing to the Electoral Commission under Article 61(f) of the Constitution and Section 15(1) of the Electoral Commission Act. Only after the Commission has examined and decided the complaint may a dissatisfied party appeal to the High Court under Section 15(2). Failure to lodge such a complaint renders any subsequent judicial review application premature and incompetent.
Administrative Law — Alternative Remedies — Effectiveness and Appropriateness
Where there exists an alternative remedy through statutory law or procedures within a public body, that alternative remedy should be pursued first unless it is shown to be ineffective or inappropriate to address the substance of the complaint. The alternative remedy must be legally provided for and as or more effective than judicial review.
Civil Procedure — Costs — Discretion Where Neither Party Entirely Innocent
While costs ordinarily follow the event under Section 27 of the Civil Procedure Act, the court may order each party to bear their own costs where neither party is entirely innocent. Where an administrative body's failure to communicate a decision in a timely manner contributes to the bringing of premature litigation, the court may depart from the general rule on costs.

Legislation cited (16)

Cases cited (6)

  • Fredrick Zabwe v Orient Bank Ltd (Supreme Court Civil Appeal No. 4 of 2006)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Leads Insurance Company Ltd v Insurance Regulatory Authority (Court of Appeal Civil Appeal No. 237 of 2015)
  • Mujuni Nicodemus and 3 Others v Umeme (High Court Miscellaneous Application No. 56 of 2015)
  • Leads Insurance Limited v Insurance Regulatory Authority and Another (Court of Appeal Civil Appeal No. 237 of 2015)
  • Ssemakula William George v Electoral Commission (High Court Miscellaneous Cause No. 94 of 2021)

Full judgment

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

Kalibbala v Electral Commission (Misc Cause 93 of 2021) [2024] UGHCCD 12 (15 January 2024)
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.