Sabila and 28 Others v Electoral Commissioner and 2 Others (Civil Application 348 of 2021)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The Court declined the application for extension of time to serve the Notice and Memorandum of Appeal. It found that the applicants filed their Memorandum of Appeal 13 days out of the mandatory 7-day period under rule 30(b) of the Parliamentary Elections (Election Petitions) Rules, and never applied to extend time to file it. Since the applicants failed to take the essential step of timely filing and did not seek to remedy the omission, the Court had no basis to act on its own motion. The late Memorandum rendered the appeal incompetent. The application was dismissed and the appeal struck out with costs to the respondents.
Outcome
Application dismissed and appeal struck out for being incompetent, with costs to the respondents.
Facts
The 1st applicant, the 2nd respondent and another candidate contested the Member of Parliament election for Kongasis County, Bukwo District, held on 14 January 2021. The Electoral Commission declared the 2nd respondent the winner. The 3rd respondent, a registered voter, filed Election Petition No. 13 of 2021 challenging the result, but withdrew it. The applicants sought to reinstate the petition and be substituted as petitioners, but their application was dismissed on a preliminary point of law. The applicants filed Civil Appeal No. 223 of 2021 and lodged a Notice of Appeal on 2 July 2021, serving it on the 2nd and 3rd respondents on 8 July 2021. They filed the Memorandum of Appeal on 22 July 2021 and served all respondents on 2 August 2021. The applicants attributed delay in service to the nationwide COVID-19 lockdown restricting inter-district travel. They then applied for extension of time within which to serve, but never applied to extend time to file the Memorandum, which was filed outside the mandatory 7-day period.
Issues
- Whether the applicants were prevented by sufficient cause from serving the Notice and Memorandum of Appeal in time.
- Whether the Memorandum of Appeal was properly and timeously filed in accordance with rule 30(b) of the Parliamentary Elections (Election Petitions) Rules.
- Whether, absent an application to extend time to file the Memorandum of Appeal, the Court could grant extension of time to serve it.
Orders
- The applicants' Memorandum of Appeal, filed 13 days late, is incompetent.
- The applicants' appeal is incompetent and is struck out with costs to the respondents.
- Civil Application No. 269 of 2021 seeking to strike out the appeal is overtaken by events.
- The applicants shall pay the costs of this application to the respondents.
Rules and key headnotes
Legislation cited (15)
- Judicature (Court of Appeal Rules) Directions SI 13-10 rule 5
- Judicature (Court of Appeal Rules) Directions SI 13-10 rule 43
- Judicature (Court of Appeal Rules) Directions SI 13-10 rule 44
- Judicature (Court of Appeal Rules) Directions SI 13-10 rule 76
- Judicature (Court of Appeal Rules) Directions SI 13-10 rule 78
- Judicature (Court of Appeal Rules) Directions SI 13-10 rule 83
- Judicature (Court of Appeal Rules) Directions SI 13-10 rule 88
- Parliamentary Elections (Election Petitions) Rules SI 141-1 rule 30
- Parliamentary Elections (Election Petitions) Rules SI 141-1 rule 30(b)
- Parliamentary Elections (Election Petitions) Rules SI 141-1 rule 31
- Parliamentary Elections (Election Petitions) Rules rule 22
- Judicature Act s.33
- Constitution of the Republic of Uganda 1995 Article 28
- Constitution of the Republic of Uganda 1995 Article 126(2)(e)
- Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Direction 2019
Cases cited (8)
- Boney M. Katatumba v Waheed Karim (Supreme Court Civil Appeal No. 27 of 2007)
- Utex Industries Ltd v Attorney General (Supreme Court Civil Appeal No. 52 of 1995)
- Abiriga Ibrahim v Musema Mudathir Bruce (Election Petition Application No. 24 of 2016)
- Kasibante Moses v Electoral Commission (Election Petition Appeal No. 8 of 2012)
- Bakaluba Mukasa Peter and Another v Nalugo Mary Margaret Sekiziyivu (Election Petition Appeal No. 24 of 2011)
- Inror Kevin ys Orot Ismael, CA EPP No. 105 of 2011
- Igeme Nathan Samson Nabeta v Mwiru Paul (Election Petition Appeal No. 65 of 2022)
- Attorney General v Male H. Mabirizi K. Kiwanuka (Miscellaneous Application No. 843 of 2021)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.