Nyanzi Sentamu v The Electoral Commission and 2 Others (Miscellaneous Application No. 10 of 2021 & Election Petition Appeal No. 20 of 2021)

Observed later treatment

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 allowed the appeal, holding that although the third Respondent was not served personally as required by Rule 6(3) of the Parliamentary Elections (Election Petitions) Rules, the service effected by leaving the petition at his residence, at Parliament and by WhatsApp was effective because it made him aware of the petition. Applying the effective-service principle from Geoffrey Gatete v William Kyobe and Order 5 rule 15 CPR, the Court found the petition competent. It also held that the Electoral Commission had locus standi to raise a preliminary objection on non-service, and that advocates who filed a notice of instructions could not refuse service by claiming lack of instructions. The petition was reinstated for hearing before another judge.

Outcome

Appeal allowed; election petition reinstated and remitted for hearing before another judge of the High Court

Facts

The Appellant contested the parliamentary seat for Kampala Central Constituency in elections held on 14 January 2021. The third Respondent was returned as the elected member with 16,998 votes against the Appellant's 15,975 votes. The Appellant petitioned the High Court challenging the results. He filed an application for enlargement of time and substituted service on the third Respondent; the court granted enlargement but denied substituted service. Attempts to serve the third Respondent personally at his Bugolobi residence, Parliament, and his offices failed. A process server left the petition at his residence and sent it by WhatsApp to his phone. When advocates who had filed a notice of joint instructions were approached, they denied having instructions. At the hearing before a different judge, a preliminary objection was raised that the third Respondent had not been personally served, and the petition was struck out as incompetent. The Appellant appealed against both the ruling striking out the petition and the earlier refusal of substituted service.

Issues

1. Whether counsel for the first and second Respondents had locus standi to raise a preliminary objection about non-service of the petition on behalf of the third Respondent.
2. Whether the third Respondent was validly served with the petition and notice of presentation, including by delivery at his residence and by WhatsApp.
3. Whether it was sufficient to leave a copy of the petition at the third Respondent's residence and to transmit it electronically as effective service.
4. Whether Order 5 rule 15 CPR applies together with Rule 6(3) of the Parliamentary Elections (Election Petitions) Rules.
5. Whether the third Respondent, by instructing advocates who filed a notice of instructions, waived the right to be served.
6. Whether the trial judge rightly denied the application for substituted service.

Orders

• Appeal allowed.
• The hearing at the trial Court to proceed before another Judge.
• Any further court process to be effected on counsel on court record namely M/s Nsereko Mukalazi Advocates, M/s Maldes Advocates and M/s Arcadia Advocates.
• Costs to the Appellant.

Rules and key headnotes

Legislation cited (15)

• Parliamentary Elections Act s.61(1)(c)
• Parliamentary Elections Act s.62
• Parliamentary Elections Act s.66(3)
• Judicature Act s.6
• Judicature (Court of Appeal Rules) Directions Rule 30(1)
• Judicature (Court of Appeal Rules) Directions Rule 80
• Parliamentary Elections (Election Petitions) Rules Rule 6(3)
• Parliamentary Elections (Election Petitions) Rules Rule 19
• Civil Procedure Rules Order 5 rule 15
• Civil Procedure Rules Order 9 rule 2
• Constitution of Uganda 1995 Article 61
• Constitution of Uganda 1995 Article 62
• Electoral Commission Act s.13
• Advocates (Professional Conduct) Regulations Regulation 2
• Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) Practice Directions 2019

Cases cited (18)

• Paul Mwiru v Igeme Nabeta and Others (Election Petition No. 6 of 2011)
• Mukasa Harris v Dr. Lulume Bayiga (supra)
• Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2006)
• Bater v Bater [1950] 2 All ER 458
• Sarah Bireete and Another v Bernadette Bigirwa and Electoral Commission (Election Petition Appeal No. 13 of 2002)
• Sengendo v Attorney General [1972] 1 EA 140
• Ikiror Kevin v Orot Ismael (Election Petition No. 8 of 2016)
• Dr. Runumi Mwesigye v Returning Officer, The Electoral Commission and Adson Kakuru (Election Case No. 2 of 2002)
• Mbabali Jude v Electoral Commission (Election Petition Appeal No. 3 of 2006)
• Besweri Lubuye v Electoral Commission (Election Petition Appeal No. 2 of 1999)
• Abela and Others v Baadarani [2013] UKSC 44
• Eliakanah Omuchilo v Ayub Machiwa [1966] EA 229
• Geoffrey Gatete and Another v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)
• St Aubyn v Attorney General [1951] 2 All ER 473
• Ejab Family Investments and Trading Company Ltd v Centenary Rural Development Bank Ltd (High Court Civil Suit No. 44 of 2017)
• Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Supreme Court Election Petition No. 17 of 2007)
• Waira James Kyewalabye Majegere Sitingo v Kubeketerya James (Election Application No. 38 of 2022)
• Eunice Wairimu Muturi and Another v Ruth Nyambura Chuchu and 2 Others [2013] eKLR

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Rwenzori Commodities Limited v Dr. Sam Mayanja (HCT-01-CV-MC-0004-2026)

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