Wakilii

Nelson Sande Ndungo v Electoral Commission (HCT - 01 - CV - EP - 0004 of 2006) (HCT - 01 - CV - EP - 0004 of 2006)

High Court · [2006] UGHC 22 · 2006 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal by way of petition from Electoral Commission decision disqualifying petitioner from standing for election as LC.III Chairperson
Decision
Petitioner reinstated as duly nominated candidate and Electoral Commission directed to proceed with election

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that Rule 7 of the Parliamentary Elections (Appeals to the High Court from Commission) Rules, requiring the Electoral Commission to file an affidavit within three days after service of a petition, is mandatory not directory. The Electoral Commission's affidavit filed eight days after service was struck off. The court declined to exercise discretion to extend time where no reasons for the five-day delay were advanced and the application came only after the petitioner had filed all pleadings. With no opposing affidavit on record, the petition was allowed and the petitioner reinstated as a duly nominated candidate. Damages were refused.

Outcome

Petitioner reinstated as duly nominated candidate and Electoral Commission directed to proceed with election

Facts

The petitioner was nominated on 28 December 2005 to stand for election as Chairperson of Kasese Town Council. He attached to his nomination paper lists of at least 20 registered voters from each of the 16 electoral areas as required by section 111(4)(f) of the Local Governments Act. The Electoral Commission received a complaint from one Buduwe Maseb alleging that the petitioner's list contained non-eligible voters, deceased voters, and voters from outside Kasese Town Council. The Commission investigated and on 3 March 2006 disqualified the petitioner. The petitioner filed his petition on 9 March 2006. The Electoral Commission was served on 15 March 2006 but did not file its affidavit in reply until 23 March 2006, eight days after service instead of within the three days required by Rule 7.

Issues

  1. Whether the Electoral Commission's affidavit in reply, filed eight days after service of the petition instead of within three days as required by Rule 7, should be struck off as filed out of time.
  2. Whether Rule 7 of the Parliamentary Elections (Appeals to the High Court from Commission) Rules is mandatory or merely directory.
  3. Whether the court should exercise its discretion to grant the Electoral Commission extension of time to file the affidavit out of time.
  4. Whether the petitioner is entitled to damages for inconvenience suffered due to disqualification.

Orders

  • Preliminary objection upheld.
  • The Electoral Commission's affidavit and all documents annexed thereto struck off as filed out of time.
  • Petition allowed.
  • The decision of the Electoral Commission disqualifying the petitioner as a candidate for election of Chairperson of Kasese Town Council set aside.
  • Petitioner reinstated as a duly nominated candidate for Chairperson of Kasese Town Council.
  • Electoral Commission directed to proceed with the election of the Chairperson of Kasese Town Council.
  • Any orders or directives of the Electoral Commission contrary to this directive declared null and void.
  • Prayer for damages rejected.
  • Petitioner awarded half of the taxed costs of the petition.

Rules and key headnotes

Electoral Law — Election Petitions — Procedural Compliance — Mandatory Time Limits
Rule 7 of the Parliamentary Elections (Appeals to the High Court from Commission) Rules, requiring the Electoral Commission to file an affidavit within three days after service of a petition, is mandatory and not merely directory. The provision imposes a duty to perform a certain act within a specified time, and the absence of the words 'so far as possible' distinguishes it from directory provisions such as Rule 10.
Civil Procedure — Time Limits — Mandatory versus Directory Provisions — Statutory Interpretation
Where statutory rules impose a duty to perform an act within a specified time using clear and unambiguous language without qualifying words such as 'so far as possible', the provision is mandatory. The absence of an express sanction clause does not render the provision merely directory. Provisions must be given their natural meaning.
Civil Procedure — Extension of Time — Exercise of Judicial Discretion — Grounds for Refusal
Before a court exercises its discretion to extend time for filing pleadings out of time, it must consider the extent of the delay, the reasons for the delay, and the likely prejudice to the other party. Where no reasons are advanced for a delay of five days beyond a three-day time limit, the application is made after the other party has filed all pleadings, and granting the application would cause injustice, the court will decline to extend time.
Administrative Law — Constitutional Interpretation — Article 126(2)(e) — Substantive Justice versus Procedural Rules
Article 126(2)(e) of the Constitution, which enjoins courts to apply the law without undue regard to technicalities, is not intended to do away with rules of procedure. Applying rules of procedure regarding time limits is not an exercise in legal technicalities. Courts must enforce procedural rules where compliance is required by law.
Electoral Law — Election Petitions — Consequences of Striking Off Affidavit — Unopposed Petition
Where the Electoral Commission's affidavit in reply to an election petition is struck off for non-compliance with mandatory procedural rules, and no other opposing affidavit is on record, the petition remains unopposed and must be allowed. Election petitions are disposed of by way of affidavit evidence.
Electoral Law — Damages — Speculative Loss — Campaign Expenses
A petitioner who is reinstated as a duly nominated candidate after successful challenge to disqualification is not entitled to damages for campaign expenses where there is no guarantee of electoral success and the expenses would have been incurred regardless of the disqualification. Claims for speculative losses in the context of election petitions will be rejected.
Civil Procedure — Preliminary Objections — Timing — Costs Consequences
A preliminary objection ought to be raised at the earliest opportunity, as its determination may dispose of the suit. Where a preliminary objection is raised only after scheduling conferences and adjournments that could have been avoided, the successful party will be awarded only half of the taxed costs.

Legislation cited (7)

Cases cited (2)

  • Kyabogo Kakiiza Fred v Tinkamanyire George and Electoral Commission (Election Petition No. 2 of 2006)
  • Utex Industries Ltd v Attorney General (SCCA No. 52 of 1995)

Full judgment

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

Nelson Sande Ndungo v Electoral Commission (HCT - 01 - CV - EP - 0004 of 2006) (HCT - 01 - CV - EP - 0004 of 2006) [2006] UGHC 22 (16 June 2006)
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.