Wakilii

Robert Kitariko v David Twino Katama [1982] UGSC 1

Supreme Court · 1982 Application Granted — Notice of Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out a notice of appeal filed against an interlocutory order made by an election court
Decision
Notice of appeal struck out; deemed withdrawn under rule 82

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that an interlocutory order made by an election judge in an election petition is appealable with leave, by virtue of sections 68 and 77 of the Civil Procedure Act and O.40 r.1(2); only the final determination on the validity of an election is barred from appeal under article 51 of the Constitution and section 66 of the National Assembly (Elections) Act. However, the appellant failed to institute the appeal within 60 days, applied for the record out of time, and did not serve a copy of the application on the applicant's advocates. He therefore could not rely on the proviso to rule 81(1), and under rule 82 the notice of appeal was deemed withdrawn and was struck out.

Outcome

Notice of appeal struck out; deemed withdrawn under rule 82

Facts

At the trial of an election petition on 4 November 1981, the election judge ordered the list of objections struck out. The respondent obtained leave to appeal and filed a notice of appeal on 11 November 1981, but thereafter took no further step to prosecute the appeal. The applicant applied to strike out the notice of appeal on two grounds: that no appeal lies from an order made in an election petition, and alternatively that any appeal had not been instituted within 60 days of filing the notice. The respondent applied in writing for a copy of the proceedings only on 12 March 1982, well outside the 30-day period, and did not send a copy of that application to the applicant's advocates. The respondent conceded the application was out of time and offered no explanation for the delay.

Issues

  1. Whether an appeal lies to the Court of Appeal from an interlocutory order made by an election court in an election petition.
  2. Whether the appeal was validly instituted within the time prescribed by rule 81 of the Rules of the Court of Appeal.
  3. Whether the respondent could rely on the proviso to rule 81(1) to exclude time taken to prepare the record of proceedings.

Orders

  • First ground (that no appeal lies) fails.
  • Notice of appeal struck out.
  • Costs to the applicant and the Returning Officer.

Rules and key headnotes

Election Petitions — Appeals — Interlocutory Orders Distinguished from Final Determination
An interlocutory order made by an election judge in an election petition is appealable with leave of the court under sections 68 and 77 of the Civil Procedure Act and Order 40 rule 1(2) of the Civil Procedure Rules; only the final determination of the validity of an election is barred from appeal by article 51 of the Constitution and section 66 of the National Assembly (Elections) Act.
Appeals — Time for Institution — Failure to Institute Within 60 Days
Where a party who has lodged a notice of appeal fails to institute the appeal within 60 days as required by rule 81(1), rule 82 deems the notice of appeal to have been withdrawn, and no valid notice of appeal remains on the record.
Appeals — Extension of Time — Reliance on Proviso to Rule 81(1)
A party cannot rely on the proviso to rule 81(1) to exclude time taken to prepare the record where the application for the copy of proceedings was made outside the 30-day period and a copy of that application was not served on the opposing advocates as required by rule 81(2).
Rules of Court — Extension of Time — Requirement of Material to Exercise Discretion
The rules of court must prima facie be obeyed, and to justify an extension of time there must be some material on which the court can exercise its discretion; a party in breach has no unqualified right to an extension.

Legislation cited (17)

Cases cited (3)

  • Mudavadi v. Kibisu (1070) E.A. 585
  • C. Devan Nair v Yong Kuan Teik [1967] 2 AC 31
  • Ratnam v Cumarasamy [1964] 3 All ER 933

Full judgment

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

Robert Kitariko v David Twino Katama [1982] UGSC 1 (9 November 1982)
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.