Lubadde v Nsubuga and Another (Election Petition Appeal No. Miscellaneous Application No. 19 of 2021)

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 of Appeal held that the applicant and his counsel exercised sufficient diligence in pursuing the lower court record of proceedings, and sufficient reason existed to extend time and validate the record of appeal filed two days late. However, the applicant showed no sufficient reason for late service. His averment that a lawyer's clerk fell sick was hearsay: the source of information was not disclosed and the clerk swore no affidavit, rendering it inadmissible. In any event, service of court process is not the monopoly of one person. The application was dismissed with costs. As service was not effected within time, Election Petition Appeal No. 032 of 2021 was incompetent and was struck out.

Outcome

Application dismissed and Election Petition Appeal No. 032 of 2021 struck out for want of timely service

Facts

The applicant and the 1st respondent, together with others, contested the parliamentary seat of Busiro County North Constituency, Wakiso District. The 1st respondent was declared elected. The applicant challenged the result in Election Petition No. 008 of 2021, which the High Court dismissed on 24 September 2021. The applicant filed a Notice of Appeal on 30 September 2021 and requested the record of proceedings the same day, then filed a Memorandum of Appeal on 7 October 2021. A follow-up letter was written on 5 November 2021, the day after the Registrar had notified counsel the record was ready. The 30-day period for filing the record of appeal expired on Saturday 6 November 2021. The applicant filed the record on Monday 8 November 2021 (two days late) and served it on the respondents on 18 November 2021, outside the 7-day service period. The applicant attributed late service to the sickness of his counsel's clerk, who had collected the record but failed to serve it.

Issues

1. Whether the applicant showed sufficient reason for failing to file the record of appeal within the statutory 30 days to justify extension of time.
2. Whether the applicant showed sufficient reason for failing to serve the record of appeal on the respondents within the statutory 7 days.
3. Whether hearsay averments about the sickness of counsel's clerk, unsupported by an affidavit from the clerk, could establish sufficient reason for late service.

Orders

• The application for extension of time to serve the record of appeal is dismissed with costs to the respondents.
• Election Petition Appeal No. 032 of 2021 is struck out for incompetence, with costs to the respondents.
• The applicant shall bear the costs in the lower court.

Rules and key headnotes

Legislation cited (17)

• Constitution of Uganda Article 140(1) and (2)
• Constitution of Uganda Article 86(1)
• Interpretation Act s.34
• Parliamentary Elections Act s.66(2)
• Parliamentary Elections Act s.63(2)
• Parliamentary Elections Act s.66(4)
• Parliamentary Elections (Election Petitions) Rules r.31
• Parliamentary Elections (Election Petitions) Rules r.33
• Parliamentary Elections (Election Petitions) Rules r.36
• Parliamentary Elections Petitions Rules r.13
• Judicature (Court of Appeal Rules) Directions r.5
• Judicature (Court of Appeal Rules) Directions r.88
• Judicature (Court of Appeal Rules) Directions r.83
• Judicature (Court of Appeal Rules) Directions r.4
• Judicature (Court of Appeal Rules) Directions r.42
• Judicature (Court of Appeal Rules) Directions r.43
• Civil Procedure Rules Order 19 rule 3

Cases cited (18)

• Rosette Kizito v Administrator General and Others (Supreme Court Civil Application No. 9 of 1986)
• Sabiiti Kachope and 3 Others v Margaret Kamuje (Supreme Court Civil Application No. 31 of 1997)
• Seperia Kyamulesiire v Justine Bikanshire Bagambe (Civil Appeal No. 20 of 1995)
• Hon. George Patrick Kassajja v Frederick K. Ngobi Gume and Another (Court of Appeal Civil Application No. 56 of 2016)
• Tiberio Okeny and Another v Attorney General and 2 Others (Civil Appeal No. 51 of 2001)
• Bakaluba Mukasa Peter and Electoral Commission v Nalugo Mary Margret Sekiziyivu (Election Petition Application No. 24 of 2011)
• Edward K. Wesonga v Electoral Commission and Others (Election Petition Appeal No. 17 of 1997)
• Electoral Commission and Another v Piro Santos (Civil Application No. 22 of 2011)
• Muiya vs Nyangah and others, (2003) 2 EA 616 C.H.C.K
• Ikiror Kevin v Orot Ismael (Court of Appeal Election Petition Appeal No. 105 of 2011)
• Katatumba v Waheed Karim (Supreme Court Civil Appeal No. 27 of 2007)
• Kubeketerya James v Waira Kyewalabye and Electoral Commission (Court of Appeal Election Petition Appeal No. 97 of 2016)
• Kasibante Moses v Katongole Singh Murwaha (Election Petition 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 (Civil Application No. 108 of 2003)
• Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 16 of 2016)
• Muhindo Rehema v Winfred Kiiza and Another (Election Petition Appeal No. 29 of 2011)
• Eric Tibebaga v Narsensio Begumisa and Others (Supreme Court Civil Application No. 18 of 2002)

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