Wakilii

Tom A mooti v Birihairwe (Election Petition Application No. 43 of 2022)

Court of Appeal · [2022] UGCA 147 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out an election petition appeal for failure to file the memorandum of appeal within the prescribed time
Decision
Application allowed; Election Petition Appeal No. 81 of 2021 struck out as incompetent for late filing of the memorandum of appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that citing the wrong law does not invalidate an application where the correct jurisdiction-conferring provision (Rule 82) is also cited and no party is prejudiced, and that an affidavit in support is itself a pleading, so no summary of evidence was required. Rule 82 permits striking out at any time, so the application was not time barred. On the merits, the respondent filed the memorandum of appeal 24 days after the notice of appeal, outside the seven-day period under Rule 30(b) of the Parliamentary Elections (Election Petitions) Rules, and offered no sufficient reason nor sought extension of time. The Court allowed the application and struck out Election Petition Appeal No. 81 of 2021 as incompetent.

Outcome

Application allowed; Election Petition Appeal No. 81 of 2021 struck out as incompetent for late filing of the memorandum of appeal

Facts

The applicant and respondent contested the 2021 parliamentary election for Kyaka Central County constituency, Kyegegwa District, held on 14 January 2021. The applicant was declared the elected Member of Parliament. The respondent challenged the nomination and declaration in High Court Election Petition No. 10 of 2021, which was decided in the applicant's favour on 29 October 2021. On the same day the respondent filed a notice of appeal. He filed the memorandum of appeal on 22 November 2021, 24 days after the notice of appeal. The applicant applied to strike out the resulting Election Petition Appeal No. 81 of 2021 on the ground that the memorandum of appeal was filed outside the seven-day period prescribed by Rule 30(b) of the Parliamentary Elections (Election Petitions) Rules and that the respondent had not sought an extension of time. The respondent maintained the memorandum was filed within time and raised preliminary objections on wrong citation of law, omission of a summary of evidence, and that the application was time barred.

Issues

  1. Whether the application to strike out the appeal was incompetent for being brought under the wrong law and for omitting a summary of evidence.
  2. Whether the application under Rule 82 was time barred because it was filed after conferencing and during the hearing.
  3. Whether the memorandum of appeal was filed out of the time prescribed by law.

Orders

  • The preliminary objections raised by counsel for the respondent are dismissed for lack of merit.
  • The application is allowed.
  • Election Petition Appeal No. 81 of 2021 is struck out for being incompetent.
  • Costs of this application and in the court below awarded to the applicant.

Rules and key headnotes

Civil Procedure — Applications — Citation of Wrong Law — Curable Irregularity
Where an application omits to cite any law or cites the wrong law, but the jurisdiction to grant the order sought exists and the correct law is also cited, the irregularity may be ignored and the application is not rendered a nullity unless the defective act is of the most fundamental nature causing prejudice.
Civil Procedure — Pleadings — Affidavit Evidence as a Pleading — Summary of Evidence
Where an application is supported by affidavit evidence which is itself a pleading containing all the evidence, there is no need to attach a summary of evidence, and its absence occasions no injustice or trial by ambush.
Civil Procedure — Striking Out Appeal — Rule 82 — No Time Limitation
An application under Rule 82 of the Court of Appeal Rules to strike out a notice of appeal or appeal may be made at any time, whether before or after institution of the appeal, and is not barred merely because it is filed after conferencing or during the hearing.
Electoral Law — Election Petition Appeals — Timelines — Late Filing of Memorandum of Appeal
A memorandum of appeal in an election petition appeal must be filed within seven days after a written notice of appeal under Rule 30(b) of the Parliamentary Elections (Election Petitions) Rules; failure to file within time, absent an application for extension or leave to validate, renders the appeal incompetent and liable to be struck out.
Electoral Law — Duty of Diligence — Expeditious Prosecution of Election Appeals
An intending appellant in an election petition appeal bears a higher duty to actively and expeditiously take every necessary step to prosecute the appeal, because election matters must be heard and disposed of quickly under Article 140 of the Constitution and the Parliamentary Elections Act.

Legislation cited (19)

Cases cited (13)

  • Kasibante Moses v Electoral Commission (Election Petition Application No. 07 of 2012)
  • Abiriga Ibrahim v Musema Mudathir Bruce (Election Petition Application No. 24 of 2016)
  • Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
  • Kasirye & Byaruhanga & Co. Advocates vs. Uganda Development Bank, S.C.C.A No.2 of 1997
  • Mulindwa George William v Kisubika Joseph (Civil Appeal No. 12 of 2014)
  • Horizon Coaches Ltd v Edward Rutangaranga (Civil Application No. 18 of 2009)
  • Pamento Senalulu vs. Nakito, Civil Appeal No.04 of 2008
  • Miramira David v Centenary Rural Development Bank (Miscellaneous Application No. 1849 of 2013)
  • Makula International Ltd vs. His Eminence Cardinal Nsubuga & Anor (1982) HCB 11
  • Sorowen James Kapkis vs. Cherop Stephen HCT-04-CV-CR-067-2015
  • Saggu vs. Road Motor Cycles (U) Ltd. [2002] 1 E.A 258
  • Nanjibhai Prabhudas and Company Limited vs. Standard Bank Limited [1968] EA
  • S.B. Kinyatta v Subramanian (Civil Application No. 108 of 2003)

Full judgment

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

Tom A mooti v Birihairwe (Election Petition Application No. 43 of 2022) [2022] UGCA 147 (26 April 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.