Wakilii

Sekabira v Mulema and Another (Election Petition Appeal No. Miscellaneous Application No. 186 of 2022)

High Court · [2023] UGHCCD 20 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out notice of appeal and proposed memorandum of appeal arising from election petition appeal
Decision
Application dismissed; notices of appeal and proposed memorandum remain valid

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where respondents filed a notice of appeal and requested a certified record of proceedings within time, but the record was not availed to them by the trial court, time stops running until the record is supplied. An application to strike out the notice and memorandum of appeal for failure to prosecute fails where the delay was caused by the court's failure to certify and serve the record. A memorandum labelled 'proposed' that meets all statutory requirements under Order 43 rule 1 of the Civil Procedure Rules is valid and requires no further validation.

Outcome

Application dismissed; notices of appeal and proposed memorandum remain valid

Facts

The Applicant successfully petitioned in an election case at the Chief Magistrates Court of Luweero. On 3 November 2021, the Respondents filed notices of appeal and requested a certified record of proceedings. The 1st Respondent also filed a proposed memorandum of appeal on 18 November 2021. Despite repeated requests, the lower court did not provide a complete certified record to the Respondents. Eight months later, the Applicant brought an application to strike out the notice of appeal and memorandum for failure to prosecute within the statutory 30-day period. When the matter came before the High Court on 19 September 2022, the Court noted that no complete certified record had been served on the Respondents and directed the Registrar to ensure proper certification and service.

Issues

  1. Whether the affidavit in reply deposed by the 1st Respondent is competent before the court.
  2. Whether the Notice of Appeal and the proposed Memorandum of Appeal ought to be struck out.
  3. Whether the Applicant is entitled to the remedies claimed.

Orders

  • Application dismissed with costs to the Respondents.

Rules and key headnotes

Civil Procedure — Appeals — Preliminary Objections — Requirement for Evidence
A matter that requires evidence to be proved cannot be entertained as a preliminary objection. A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit.
Electoral Law — Election Appeals — Limitation Period — Applicable Rules
Where the Local Governments Act makes no provision for timelines within which an appeal from a lower court may be instituted in the High Court, the Court will adopt the timelines provided for under the Civil Procedure Rules, including the 30-day period under Section 79(1) of the Civil Procedure Act.
Civil Procedure — Appeals — Limitation Period — Exclusion of Time
Under Section 79(2) of the Civil Procedure Act, in computing the period of limitation for filing an appeal, the period taken by the court in making a copy of the decree, order and proceedings on which the appeal is founded shall be excluded. Time stops running once a notice of appeal and request for a certified record are filed, and does not resume until the certified record is availed to the appellant.
Civil Procedure — Appeals — Memorandum of Appeal — Form and Validity
A memorandum of appeal that is signed by the appellant or his advocate, is presented to the court, and sets forth concisely and under distinct heads the grounds of objection to the decree appealed from, satisfies the requirements of Order 43 rule 1 of the Civil Procedure Rules. The mere labelling of such a memorandum as 'proposed' does not render it invalid or require validation, particularly where it was filed before receipt of the certified record of proceedings.

Legislation cited (5)

Cases cited (7)

  • Lweza Clays & Another v Tropical Bank & Another (SC Misc. Appeal No. 31 of 2018)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Wanume David Kitamirike v Uganda Revenue Authority (Civil Application No. 138 of 2010)
  • Makatu Augustus v Weswa David & Another (EPA No. 13 of 2016)
  • Kwoba Herbert v Ssebugwawo Tadeo (EPA No. 108 of 2016)
  • Bandikubi Boniface Musisi & Ors v Sserwanga William Tom & Anor (EPA No. 110 of 2016)
  • Mpanga Farouq v Ssenkubuge Isaac & Anor (EPA No. 13 of 2021)

Full judgment

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

Sekabira v Mulema and Another (Election Petition Appeal No. Miscellaneous Application No. 186 of 2022) [2023] UGHCCD 20 (17 February 2023)
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.