Wakilii

Kasibante Moses v Electoral Commission (Election Petition Application No. 07 of 2012)

Court of Appeal · [2012] UGCA 52 · 2012 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out an election petition appeal for failure to take essential steps within the prescribed time
Decision
Application allowed; Election Petition Appeal No. 47 of 2011 struck out with costs to the applicant

Observed later treatment

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Holding

The Court of Appeal held that in computing the seven days for filing a written notice of appeal under Rule 29 of the Parliamentary Elections (Election Petitions) Rules, the date of delivery of judgment is excluded, so the respondent's notice was filed in time. However, the notice was served on the applicant a day late, the memorandum of appeal was filed a day out of time, and the record of appeal was never filed despite the certified proceedings being ready. As it is the intending appellant's duty to actively take steps to prosecute an election appeal expeditiously, and no extension of time was sought, the respondent failed to take essential steps. The court struck out the appeal with costs to the applicant.

Outcome

Application allowed; Election Petition Appeal No. 47 of 2011 struck out with costs to the applicant

Facts

Parliamentary elections for Rubaga North Constituency were held on 18.02.2011. The applicant, Kasibante Moses, was declared winner on 20.02.2011. The runner-up sought a recount, which was allowed, and after the recount conducted on 28.02.2011, the Electoral Commission declared Hon. Katongole Singh Marwaha the winner on 01.03.2011. The applicant petitioned the High Court, which on 24.10.2011 decided in his favour. The Electoral Commission lodged Election Petition Appeal No. 47 of 2011. The applicant applied to strike out that appeal, contending the respondent filed the notice of appeal out of time, served it late, filed the memorandum of appeal late, and failed to file any record of appeal. Certified copies of proceedings had been forwarded to the Court of Appeal by 16.01.2012, yet the respondent never requested the record from the trial court, never filed a record of appeal, and never applied for extension of time.

Issues

  1. Whether the respondent failed to take any essential step to prosecute Election Petition Appeal No. 47 of 2011 within the prescribed time.
  2. Whether the date of delivery of judgment is excluded when computing the seven days for filing a notice of appeal.
  3. Whether the notice and memorandum of appeal were served and filed within the prescribed time.

Orders

  • The application is allowed and Election Petition Appeal No. 47 of 2011 is struck out.
  • The respondent to pay the costs of the application to the applicant.

Rules and key headnotes

Computation of Time — Exclusion of the Day of the Event — Notice of Appeal under Election Petition Rules
In computing the seven days within which a written notice of appeal must be filed under Rule 29 of the Parliamentary Elections (Election Petitions) Rules, the date of delivery of judgment is excluded, in accordance with section 34(1)(a) of the Interpretation Act and Rule 4(a) of the Judicature (Court of Appeal Rules) Directions.
Election Petition Appeals — Duty of Intending Appellant to Take Essential Steps Expeditiously
It is the duty of an intending appellant, and in election petition appeals a heightened duty given that time is of the essence, to actively take all essential steps to prosecute the appeal; it is not the duty of the court or any other person to perform those steps on the appellant's behalf.
Striking Out Appeal — Failure to Take Essential Step within Prescribed Time — Rule 82 Court of Appeal Rules
Where an intending appellant fails to serve the notice of appeal, file the memorandum of appeal within time, and file the record of appeal at all, and has not sought any extension of time, the court may strike out the appeal under Rule 82 of the Court of Appeal Rules for failure to take essential steps.
Record of Appeal — Burden on Appellant to Request Certified Proceedings — No Duty on Registrar to Notify
An intending appellant cannot rely on the Registrar to notify him of the readiness of certified proceedings where he never wrote to the trial court requesting to be supplied with the record; the burden lies on the appellant to actively obtain the record and file it within the prescribed time.

Legislation cited (16)

Cases cited (4)

  • Cecilia Gathoni Harun v George Kabugu (Civil Application No. 72 of 1999)
  • Bakaluba Mukasa Peter & Another v Nalugo Mary Margaret Sekiziyivu (Election Petition Application No. 24 of 2011)
  • Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
  • S.B. Kinyatta & Another v Subramanian & Another (Civil Application No. 108 of 2003)

Full judgment

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Kasibante Moses v Electoral Commission (Election Petition Application No. 07 of 2012) [2012] UGCA 52 (30 April 2012)
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.