Sitenda Sebalu v Hon. Sam K. Njuba & Anor (Civil Application 12 of 2009)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On an application for leave to file a memorandum and record of appeal in an election petition matter, the single judge held that there is a void because no rules specifically regulate the institution of election petition appeals to the Supreme Court. Following his earlier ruling in Joy Kabatsi Kafura, the judge held that in such a situation the Rules of the Supreme Court apply. On that basis the appeal had in fact been filed within the period stipulated by the existing Rules of the Court, rendering the application superfluous, but the application was nonetheless allowed.

Outcome

Application allowed; applicant ordered to serve the memorandum and record of appeal on the respondents within ten days

Facts

The applicant, Sitenda Sebalu, had filed a memorandum and record of appeal in an election petition appeal (Supreme Court Civil Appeal No. 6 of 2009) within less than 30 days, before realising he may have done so out of time. He brought a notice of motion seeking leave to file the memorandum and record of appeal. The applicant relied on two earlier decisions of the Court to argue that there were no suitable rules governing the institution of election petition appeals to the Supreme Court, and that he had acted promptly. The first respondent opposed the application on the ground that the applicant's affidavit was bad in law; the second respondent filed no affidavit in reply. The respondents asked that the application be dismissed with costs and that the memorandum and record of appeal already lodged be struck out.

Issues

1. Whether, in the absence of rules specifically regulating the institution of election petition appeals to the Supreme Court, the Rules of the Supreme Court apply to govern the time for filing such an appeal.
2. Whether the applicant should be granted leave to file the memorandum and record of appeal.

Orders

• The application succeeds.
• The applicant must serve the memorandum of appeal and the record of appeal upon the two respondents within ten (10) days from the date of the ruling.
• Costs of this application shall abide the final decision of the Court in the appeal.

Rules and key headnotes

Legislation cited (5)

• Supreme Court Rules r.5
• Supreme Court Rules r.42(2)
• Supreme Court Rules r.42(3)
• Parliamentary Elections (Election Petitions) Rules (SI 141-2) r.34
• Parliamentary Elections (Election Petitions) Rules (SI 141-2) r.36

Cases cited (2)

• Loy Kageni Kiryapawo v Gole Nicholas Davis (Civil Application No. 15 of 2007)
• Joy Kabatsi Kafura v Anifa Kawoya Bangirana (Civil Application No. 30 of 2007)

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