Nyanzi Sentumu v Electoral Commission (Election Petition Appeal 20 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 Electoral Commission, as a party to an election petition, has locus standi to raise a preliminary objection about non-service of the petition on the winning candidate. Applying the Supreme Court's distinction between personal and effective service, the Court held that although service on the third Respondent was not personal, it was effective because he was made aware of the petition through delivery at his residence, WhatsApp, and his advocates who unreasonably refused service. Under Order 5 rule 15 CPR, affixing a copy at a conspicuous place after diligent efforts amounted to effective service. The appeal was allowed and the matter remitted for hearing before another judge.

Outcome

Appeal allowed; the election petition remitted to the High Court for hearing before another judge

Facts

The Appellant contested the seat of Member of Parliament for Kampala Central Constituency in elections held on 14 January 2021. The third Respondent was returned as the winner with 16,998 votes against the Appellant's 15,975 votes. The Appellant petitioned the High Court challenging the results. He applied for enlargement of time and substituted service to serve the third Respondent, having failed to effect personal service. The court granted enlargement of time but declined substituted service. Process servers attempted service at the third Respondent's Bugolobi residence, Parliament and his offices, left copies at his gate, and sent a WhatsApp message. Affidavits indicated a police officer chased away the LC1 chairperson. The third Respondent's three instructing advocates later refused to accept service, claiming no instructions. At the hearing, the first and second Respondents raised a preliminary objection that the petition was incompetent for non-service on the third Respondent, and the trial judge struck it out.

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 the third Respondent.
2. Whether the third Respondent had been effectively served with the petition and notice of presentation, including by leaving copies at his residence and by WhatsApp.
3. Whether the trial judge erred in holding that Order 5 rule 15 of the Civil Procedure Rules was not applicable together with Rule 6(3) of the Parliamentary Elections (Election Petitions) Rules.
4. Whether the third Respondent, by instructing advocates who filed a notice of instructions, waived his right to be served.
5. Whether the trial judge rightly denied the appellant an order of substituted service.

Orders

• The Appeal is allowed.
• The hearing at the trial Court proceed but before another Judge.
• Any further Court process 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 (16)

• Parliamentary Elections Act s.66(3)
• Parliamentary Elections Act s.61(1)(c)
• Parliamentary Elections Act s.62
• Parliamentary Elections Act s.61(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 reg.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 vs 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 EC 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)
• Geoffrey Gatete and Another v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)
• St. Aubyn (LM) v A.G (1951) 2 ALL ER 473
• Abela and others v Baadarani, Trinity Term (2013) UKSC 44
• Eliakanah Omuchilo v Ayub Machiwa (1966) EA 229
• Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Supreme Court Election Petition No. 17 of 2007)
• Ejab Family Investments and Trading Company Ltd v Centenary Rural Development Bank Ltd (High Court Civil Suit No. 44 of 2017)
• Waira James Kyewalabye Majegere Sitingo v Kubeketerya James (Election Application No. 38 of 2022)
• Eunice Wairimu Muturi & anor V Ruth Nyambura Chuchu & 2 Ors [2013] eKLR

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