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Sabila and 28 Others v Electoral Commissioner and 2 Others (Civil Application 348 of 2021)

Court of Appeal · [2022] UGCA 321 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for extension of time within which to serve the Notice and Memorandum of Appeal in an election petition appeal.
Decision
Application dismissed and appeal struck out for being incompetent, with costs to the respondents.

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

  1. Whether the applicants were prevented by sufficient cause from serving the Notice and Memorandum of Appeal in time.
  2. Whether the Memorandum of Appeal was properly and timeously filed in accordance with rule 30(b) of the Parliamentary Elections (Election Petitions) Rules.
  3. 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

Election Petition Appeals — Memorandum of Appeal — Mandatory Filing Timelines under Rule 30(b)
A Memorandum of Appeal in an election petition appeal where written notice of appeal has been given must be filed within seven days after the notice, and this timeline is couched in mandatory terms; a Memorandum filed outside that period is incompetent.
Essential Steps — Failure to Take Essential Step Renders Prior Process a Nullity
Taking an essential step is the performance of a fundamentally necessary action demanded by the legal process; where such action is not performed as prescribed by law, whatever legal process preceded it becomes a nullity against the party who had the duty to perform it.
Extension of Time — Court Cannot Act on Own Motion to Remedy Unclaimed Omission
Where a party omits to take an essential step in prosecuting an appeal and neglects to apply for an order to remedy the omission, the court has no basis to issue such an order unless there is express statutory provision permitting it to act on its own motion.
Sufficient Cause — Availability of Electronic Filing Negates COVID-19 Lockdown as Excuse
A party alleging inability to physically access the court registry due to COVID-19 lockdown restrictions cannot rely on that as sufficient cause where electronic filing was permitted under the Constitution (Integration of ICT into Adjudication) Practice Direction 2019 and Judiciary contingency guidelines, and the party failed to utilise it.
Election Petitions — Strict Timelines Reflecting Public Importance and Expeditious Disposal
Election petitions are matters of great public importance and are subject to very strict statutory timelines; all pleadings with supporting affidavits must be filed within the time prescribed by law, and Article 126(2)(e) of the Constitution does not cure the incompetence arising from failure to file within the mandatory period.

Legislation cited (15)

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

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

Sabila and 28 Others v Electoral Commissioner and 2 Others (Civil Application 348 of 2021) [2022] UGCA 321 (12 July 2022)
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.