Tumwesigye and Another v Mugyenyi (Miscellaneous Application 170 of 2019)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The respondent filed a notice of appeal within time but failed to file the Memorandum of Appeal and Record of Appeal within the periods prescribed by rules 30 and 31 of the Parliamentary Elections (Interim Provisions) Rules. The Court held that this constituted failure to take an essential step within the meaning of rule 82 of the Court of Appeal Rules, the duty being unaffected by the lower court's alleged failure to supply proceedings given the clear timelines for election appeals. The notice of appeal was accordingly struck out. On costs, the Court found no good reason to depart from the rule that costs follow the event under section 27(1) of the Civil Procedure Act, and awarded costs to the applicants who had incurred the expense of the application.

Outcome

Application allowed and the respondent's notice of appeal struck out with costs to the applicants

Facts

Mbarara High Court dismissed Election Petition No. 001 of 2018 with costs on 28 February 2019. Dissatisfied, the respondent filed a notice of appeal on 6 March 2019, within the time prescribed, which was served on the applicants. The respondent thereafter took no further step: she did not file a Memorandum of Appeal or a Record of Appeal as required by rules 30 and 31 of the Parliamentary Elections (Interim Provisions) Rules. On 30 May 2019 the applicants filed a notice of motion to strike out the notice of appeal. The respondent filed no affidavit in reply and neither she nor her counsel appeared at the hearing, though both sides had filed written submissions. The respondent's counsel attributed the delay to the lower court's failure to supply a copy of the decision and proceedings, conceded that the notice of appeal be struck out, but prayed that each party bear its own costs.

Issues

1. Whether the respondent's notice of appeal should be struck out for failure to take an essential step in the proceedings within the prescribed time.
2. Whether costs should be awarded against the respondent who failed to institute the appeal.

Orders

• Application allowed.
• Notice of appeal filed by the respondent struck out.
• Costs of the application awarded to the applicants.

Rules and key headnotes

Legislation cited (12)

• Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.2(2)
• Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.43(1)
• Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.44
• Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.82
• Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.84
• Parliamentary Elections (Interim Provisions) Rules S.I. 141-2 r.29
• Parliamentary Elections (Interim Provisions) Rules S.I. 141-2 r.30
• Parliamentary Elections (Interim Provisions) Rules S.I. 141-2 r.31
• Constitution of Uganda art.140
• Parliamentary Elections Act s.82(2)
• Parliamentary Elections Act s.85(2)
• Civil Procedure Act s.27(1)

Cases cited (5)

• Kasibante Moses v Electoral Commission (Election Petition Application No. 7 of 2012)
• Mayende v Ochieng Peter Patrick (Election Petition Application No. 33 of 2012)
• Utex Industries Ltd v Attorney General (Supreme Court Civil Appeal No. 52 of 1995)
• Andrew Maviri vs Jomayi Propefi Consultanfs Ltd, (supra)
• Bakaluba Mukasa Peter & Another v Nalugo Mary Margret Sekiziyivu (Election Petition Application No. 24 of 2011)

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