Balikwa Nixon Kalungi and Another v Electoral Commission (Miscellaneous Cause No 180 of 2023) [2025] UGHCCD 81 (11 June 2025)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF KAMPALA AT KAMPALA**

### **CIVIL DIVISION**

#### **MISCELLANEOUS CAUSE NO 180 OF 2023**

### **1. BALIKOWA NIXON KALUNGI(REPRESENTATIVE OF THE LATE MPOLOGOMANKADDE SEWAVA KIGIMU)**

## **2. OKORI HENRY OKUMU:::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS (THE PROMOTERS OF YOTE AZALE PARTY)**

### **VERSUS**

### **THE ELECTORAL COMMISSION:::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **BEFORE HON. JUSTICE BONNY ISAAC TEKO**

#### **RULING**

This Application for Judicial Review was brought by the Applicants under section 98 of the Civil Procedure Act Cap 71, section 36(a),(b),(c)&(d) of the Judicature Act Cap 13, Rules 3(1),(2),(4)&(6) of the (Judicature Review) Rules 2009, The Judicature (amendment) Rules 2002. The Judicature (Judicial Review) (Amendment) Rules 2019 and section 36 of the Judicature Act Cap 13 for:

- 1) An Order of **Mandamus** be issued against the Respondent compelling and directing it to register the **Yote Azale Party.** - 2) Costs of the Application. - 3) Any other reliefs deemed fit by court.


#### 11th June,2025

The grounds of the Application as deposed in the Affidavit of **Okori Henry Okumu** are briefly that in September 2020 the applicants applied to register a Political Party to be called **Yote Azale Party** but the Respondent has been reluctant and adamant to carry out its **statutory duty** of registering the applicant's political party despite the Applicants having fulfilled whatever requirements are provided under the law.

### **Introduction /Background**

In September 2020, **Mr. Mpologomankadde Sewava Kigimu** and the 2nd Applicant **Okori Henry Okumu** applied to the Respondent to register a political party as called Yellow **Action Party of Uganda.** At the behest of the Respondent the Applicants changed the name from **Yellow Action Party of Uganda** to **Yote Action Party** in **May 2021**.

The Applicants through another letter dated 2nd June 2021, wrote to the Respondent requesting it to register the name **Yellow Action Party** stating the meaning of the name, its symbols, colors and Slogan, the Respondent received the letter but did not take any step as requested by the Applicants.

The Applicants wrote another letter dated 16th June 2021, requesting the party name to be registered, but the Respondent declined to reply and did not take any action as mandated by the Political Parties and Organizations, Act 2005 (as Amended).

On the 5th October 2021 the Respondent informed the Applicants that the name **Yote Action Party** was similar to an already existing name of **National Action Party**, the Applicants on the 20th January 2022, decided to adopt the current name of **Yote Azale Party** which the Respondent accepted as proper together with the symbol, color and slogan, the Respondent however declined to register the said name on grounds that


the signatures required to register the Applicants' political party were falsified, that the Applicants had included incorrect administrative units, that the Applicants included dead people among their supporters and unknown supporters.

When the 1st Applicant **Mpologomankadde Sewava Kigimu** died, he was replaced by **Balikowa Nixon Kalungi** the current 1st Applicant.

The Applicants are aggrieved by the **inaction** of the Respondent which they say offended the laws and procedures governing registration of Political Parties under the Political Parties and Organizations Act 2005 (as Amended), they thus seek a Judicial Review Order of **Mandamus** to compel the Respondent to execute its mandate and register **Yote Azale Party.**

## **Representation and Hearing**

The Applicants were represented by **Sunday Mpagi** from **Mpagi Sunday & Co Advocates** while the **Legal Chambers of the Electoral Commission** represented the Respondent.

## **Issues for determination by the Court.**

Three **issues** for determination by the court are;

- 1) Whether the application is amenable for Judicial Review? - 2) Whether the application discloses any grounds for Judicial Review? - 3) Whether the decision of the Respondent rejecting to register **Yote Azale Party** offended the laws and procedures governing registration of Political Parties under the Political Parties and Organizations Act 2005 (as Amended), and thus were **illegal**, **irrational** and **procedurally improper.** - 4) What remedies are available to the parties?


## **Preliminary Objections.**

The respondent raised a **first** preliminary objection on the grounds that the person nominated to replace the late **Mpologomankadde Ssewava Kagimu** upon his death **Balikoowa Nixon Kalungi** was joined as a party to the application irregularly without any resolution, or proof of being a registered member of the party. That he never swore any affidavit to verify any facts in the application and that his presence as a replacement party to the application offended good practice and law.

In alternative, but without prejudice to the above, the respondent submitted a **second preliminary objection** to the effect that the Application was filed **out of the prescribed timelines** in contravention of Rule 5(1) of the Judicature (Judicial Review) Rules 2009.

These two infractions to the law the respondent averred were enough to render the application incompetent, bad in law and a classical waste of court's time thereby rendering the application subject to prompt dismissal. I shall handle the objections first.

The respondent submitted on the preliminary objection that the principles to follow in raising preliminary objections were well stated in the case of **Mukisa Biscuits Manufacturing Company Limited versus West End Distributors 1960 EA 696** where Law J at page 700 Court held that:

*…….. a preliminary objection consists of a point of law which has been pleaded or which arises by implication out of pleadings and which if argued as preliminary point may dispose of the suit'*


The respondent submitted that the applicants in their written submissions casually and simply stated and made reference to a signature book submitted by the applicants to the respondent alleging that **Balikoowa Nixon Kalungi's** names appear as one of the supporters of **Yote Azale Party** and that therefore the respondent ought to have consulted it and brought it to court for perusal because the applicants did not retain a copy.

The respondent further stated that the applicants by their letter dated 3rd of May 2022 and received by the respondent on 4th of May 2022 lists the document submitted to and received by the respondent with its stamp implying copies thereof were retained by the applicants as evidence of submission.

In civil matters the respondent submitted, the evidential burden rests on he who alleges the existence or non-existence of a fact to prove it and this burden does not shift in the instant case the fact that the applicants submitted the said record or compendium of signatures it was incumbent on them to adduce the same in court as an annexture to their application to substantiate their allegation.

The respondent reiterated its submissions that **Balikoowa Nixon Kalungi's** name is not among those submitted to it by the applicants for consideration. He was therefore an alien who has not even deposed any affidavit stating his interest in **Yote Azale Party**.

The applicants claimed that on page 22 of the compendium of signatures collected from Kampala, **Balikoowa Nixon Kalungi** is indicated as No 6 on the list. The Applicant did not attach any copy of the compendium as evidence but merely referred the Respondent


(and in extension court-now) to the compendium of signatures allegedly with the with the respondent.

The applicants alleged that the said Baliwoowa Nixon was listed as a resident of Kawempe North Sekati Zone Kampala.

The applicants further averred that even if the 1st Applicant Balikoowa was to be struck out, the suit would remain valid before the court because the pleadings survived in the person of **Henry Okori Okumu** (the 2nd Applicant) who deponed the Affidavit in support of the amended notice of Motion.

He averred further that **Order 1 rule 9** enjoins the court not to dismiss an application merely on the ground of a misjoinder or nonjoinder of parties…but to instead focus on the matters in controversy in so far as they relate to the rights and interest of the parties before it.

The applicants also argued that any person conversant with the matters in dispute can depone to those facts in an affidavit. They cited the case of **Mbarara Municipal Council v Jetha brothers Ltd. Supreme Court MA No 10 of 2021.**

# **Analysis**

I shall not Invest a lot of time on this issue of substitution of **Mpologomankadde Ssewava Kagimu** by **Balikoowa Nixon Kalungi**.

I am persuaded by the argument of the applicants and do not find that the joinder of Balikoowa Nixon Kalungi to the suit was fatal to


the application. If it was done haphazardly, its effect would have been to strike him off in any case not inflicting a mortal blow to the application itself.

Indeed, as cited by the applicants Order 1 rule 9 of the Civil Procedure Rules exhaustively handles issues related to misjoinder or non-joinder of parties. It provides that:

*No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.*

The court is enjoined to concentrate on the matters in controversy which relates to the rights and interest instead of the dwelling on misjoinder or non-joinder of parties.

On the issue of Balikoowa inheriting Mpologomankadde's position as 1st Applicant in the application hence the affidavit, the applicants argued that it was not fatal. They cited the case of **Mbarara Municipal Council Vs Jetha Brothers Ltd** (supra) where court held that any person with sufficient knowledge or on a set of matters can depone an affidavit to that effect. Balikoowa they insisted was possessed of sufficient knowledge and interest in the matters to be competent to depose an affidavit on his own or take up the pleadings of the late 1st applicant.

I agree with the submissions of the applicant and even though **Balikoowa Nixon Kalungi** were to be was struck off the application,


the essence of the application shall remain as the remaining single party **Henry Okori Okumu** who would be able to prosecute the case and arrive at the same reliefs sought if he were to be successful.

Having disposed of the first leg of the preliminary objection, I shall now proceed to handle the second leg which deals with *whether the application was filed outside timelines and was thus time barred.*

I shall merge the issues of the application being amenable to Judicial Review with the issue of filing the application out of timelines as the two issues are related in a way, and the issue of time can affect the amenability to Judicial Review.

# **1. Whether the application is amendable for Judicial review**

The applicants submitted that the **Judicature (Judicial Review) (Amendment) Rules, No. 32 of 2019**, introduces Rule 7A into the principle Rules. Thus Rule 7A (1) (a. b and c), lays down the factors to be considered by court in handling an application for Judicial Review which include that court must be satisfied;

- a) That the Application is amendable for judicial review; - b) That the aggrieved person has exhausted the existing remedies available within the public body or under the law and - c) That the matter involves an administrative public body or official

From the above, it's clear that the "**General Rule** "is that for an application of judicial review to be entertained, the Applicant must


provide that he or she has exhausted the existing remedies available within the public body or under the law.

The **Political Parties and Organizations Act 2005 (as amended), under section 3, 5, 6, 7 and 8 provides** for the procedure and the requirements for registering a Political Party and or organization, the said sections also stipulate the obligations of the Applicants (s) seeking his/her or their Political Party or organization to be registered as well as the obligations of the Electoral Commission in Registering a political party.

For the purpose this issue as to whether this Application is amendable for Judicial review, **Section 7 (12) (a & b) of the Political Parties and Organizations Act, 2005 (as Amended**), supra provides that;

Where-

- (a)the Registrar –General refuses to register a Political party or organization under this Act; or - (b)The Registrar –General fails to act on any Application, the Applicant may **appeal** to the High Court. (underlined for emphasis)

The understanding is that a person aggrieved by the decision of the Registrar-General in the process of registering a Political party or organization **may appeal** or take any other appropriate remedy and Judicial Review is one of the said options.


11th June,2025

Court in several Decisions has laid down exception where an Application for Judicial Review can be heard even where the Applicant has not exhausted the internal remedies within the Respondent body, thus in the case of, **Housing Finance Company of Uganda Ltd Vs. The Commissioner General URA, HC MC No 722 of 2005** in which court held and I quote:

*" I must hasten to add that there are exceptions to the 'rule' at hand. If a matter in question or decision in issue is a questioned on the basis of the same being Ultra vires or occurred by fraud, ill will or some other circumstances that makes it imperative that judicial review be embarked upon, leave may be granted regardless of the existence of an alternative remedy"*

Justice Musa Ssekana: In the case of **SalimAlibhai and others Vs. Uganda Revenue Authority HCMC No. 123of 2020**, quoted with approval in the case of **JohnSentongo vs. The Commissioner Land Registration & 4 others HMC No 13 of 2019**, Held that I quote

"the *Rule of exhaustion of alternative remedies is not cast in stone and it implies with necessary modifications and circumstances of the particular case… when an alternative remedy is available, the court may refrain from exercising jurisdiction, when such alternative, adequate and efficacious legal remedy is available but to refrain from exercising jurisdiction is different from saying that it has no jurisdiction.* Therefore, the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion in an appropriate case, in spite the availability of alternative remedy, the High Court may still exercise its discretionary jurisdiction or use Judicial Review, in at least three contingencies, namely:

- I. Where the Application seeks enforcement of any of the fundamental rights. - II. Where there is failure of natural justice or - III. The order or proceedings are wholly without jurisdiction or the ultra vires of an act is challenged. See **M. P State Agro Industries Development Corporation Ltd v Jehan Khan [2007] SCC 88"**

In the case **of John Sentongo versus The Commissioner Land Registration supra, justice Boniface Wamala** upon evaluating all the above cited authorities and in allowing an application for Judicial Review as amendable even without exhausting an appeal under section 91 (10) of the Land Act had this to say:

"*in the instant case, although the Applicant did not specifically plead any exceptional circumstances as to why he did not explore the existing alternative remedy, it is clear from the Application and the submissions by the Applicants' Counsel that the Application was brought upon the grounds of Illegality, ( Ultra Vires) and procedural impropriety. …"*

Applying all the above cited authorities the Applicants argued that it is clear that the Application is based on the illegalities committed by


the Respondent in reaching its decision of rejecting to register **Yote Azale Party,** the same is based on the ill will, lack of natural justice, lack of jurisdiction by the Respondent and procedural impropriety which all put this application under the exceptions to the General rule of " exhaustion of remedies," that being the case, the applicants pray that court finds that the Application is amendable for judicial review.

The Respondent submitted that the suit filed by the Applicants was incompetent, bad in law and a classical abuse of court process. This statement could mean that the respondent thought that the applicants' case deserves **NOT** to be heard by this Court.

## **Determination**

One of the critical requirements in amenability for Judicial Review is the aspect of promptness of filing of the application.

Rule 5(1) of the Judicature (Judicial Review) Rules, 2009 provides that an *"application for judicial review shall be made promptly and in any event within three months from the date when the grounds of the application first arose, unless the court considers that there is good reason for extending the period within which the application shall be made."*

The Respondent by a letter dated **28th February 2023** addressed to **Luzige, Lubega, Kavuma & Co. Advocates** communicated **its final position** for not registering the Applicants party and told the Applicants in the said letter that the only remedy which was available


to the Applicants and by which their political party was to be registered was to seek redress from court under the provisions of Section 7(13) of the Political Parties and Organizations Act 2005(as amended).

This section provides that a party who submits an objection in respect of the registration of a political organization and is aggrieved by the decision of the Electoral Commission for failure to act the objection may apply to the High Court.

The question therefore is when did the grounds for Judicial Review first arise?

It is Respondent's own submission that by a letter dated **28th February 2023** addressed to **Luzige, Lubega, Kavuma & Co. Advocates** the Respondent communicated its **final position** for not registering the Applicants party and told the Applicants that the only remedy which was available to the Applicants and by which their political party was to be registered was to seek redress from court under the provisions of Section 7(13) of the Political Parties and Organizations Act 2005(as amended).

The three months within which the application for Judicial Review should have been filed started running on the **29th February 2023** and was expected to end on **28th May 2023.**

The application was filed by the applicants on **11th August 2023** over three and a half months after the expiration of the 90 days (three


months) within which they should have filed the application namely **28th May 2023**.

There is no indication on file that the Applicants moved court to enlarge the time within which to file their application as is required by law.

In law, the grounds for judicial review first arise when the decision or act being challenged occurs. The settled position of the law is that provisions for time limitation are substantive and limitation of actions is not concerned with the merits of the case. In *Dawson Kadope v Uganda Revenue Authority, HCMA No. 40 of 2019* while citing the decision in *I. P Mugumya v Attorney General, HCMA No. 116 of 2015,* the court held that from the clear wording of the rule 5(1) of the Judicial Review Rules, failure to bring the application within the prescribed time and the failure to seek and obtain the court's order extending the time renders the application for judicial review time barred and therefore not amenable for Judicial Review. The court added that the general effect of the expiration of the limitation period is that the remedy is also barred. Thus, it is generally agreed that provisions as to time limitation are usually strict and inflexible; such that litigation is automatically stifled after the fixed time has elapsed, regardless of the merits of a particular case. Also See: *Hilton v Steam Laundry [1946] 1 KB 61 at p.81.*

In the instant case, the decision sought to be challenged is the denial by the respondent to register the political party of the applicant.


According to the evidence on record, the Respondent wrote a letter on the 29th November, 2022 informing the Applicants that it had verified 20 Districts out of the 98 Districts and that out of the verified Districts only one (1) District was compliant, and that the Applicants' particulars submitted from the rest of the Districts were noncompliant.

In the same letter the Respondent tasked the applicants to show cause why the registration process should not be discontinued. The Applicants by their letter dated 2nd December, 2022 replied and gave reasons why their party should be registered.

The Applicants through their lawyer on the 9th December 2022, wrote another letter to the Respondent inquiring about the registration status of their party and on the 4th January, 2023 the Applicants wrote another letter informing the Respondent why their party should be registered.

Where the law has set a time limit within which to bring an action, such time cannot be ignored or adjusted except in accordance with the law. Most especially, where the provision of the law gives a remedy as to what happens when a party is late, then such a party cannot ignore that remedy and cling onto invocation of the court's inherent power.

In the provision under consideration, it clearly gives a remedy to a party who is caught by time; which is, to move the court to consider extending the period within which to make the application. If an applicant indeed has reasonable cause to bring the application


outside the set time, the law has already catered for him/her, and he/she ought to make use of the official route that has been lawfully provided instead of attempting to go through the window of asking the court to exercise substantive justice by bending clear and substantive provisions of the law unnecessarily.

For all intents and purposes therefore, my finding is that the grounds for Judicial Review, in the instant case, first arose by **28th February 2023**. The three months' period therefore expired give or take by **28th May 2023** The application was filed on **11th August 2023** over three months outside time.

The present application for Judicial Review was brought outside time and without seeking and obtaining extension of time from the Court.

*Failure to bring the application within the prescribed time and the failure to seek and obtain the court's order extending the time, renders the application for Judicial Review time barred and therefore not amenable for Judicial Review*. The above finding makes the application **incompetent** before this court.

Once an application is found incompetent, nothing can be done under it. It would therefore be inconsequential to deal with the other aspects raised herein.

The application must therefore be struck out for being time barred and for failure to move court to enlarge the time for filing the application for good cause.


*Without prejudice to the foregoing*, even if the application was to considered on the merits, the position of the law is that Judicial Review is concerned not with the merits of the decision but the decision making process.

Essentially, judicial review involves an assessment of the manner in which the decision was made. The EC followed a pattern that they used for all registrations of political organisations.

There are correspondences on record from the EC indicating that they had approved the preliminary matters such as the party's name, the logo, the colors and had given the applicants introductory letters to the Districts to gather signatures and particulars from supporters as required by the law.

The various correspondences on record indicated a reasonable amount of goodwill to baby sit the applicants to enable them get registered.

No one can fault the respondent for not affording the applicants sufficient opportunity to put their house in order. That was emblematic of right to be heard and pursuance of the law. There is no evidence of any tinge of procedural impropriety by the respondent. The applicants were given all the opportunity necessary to put its house in order and present correct submission in support of their registration but they never rose to the occasion in my view.


11th June,2025

The Respondent in its affidavit in reply stated that it was still open to considering the application of the Applicants if they complied with the recommendations and corrected the anomalies identified to them.

The applicants instead of going back to the field to correct the anomalies identified by the respondent went ahead to submit more names and signatures from other Districts other than from those where their attention had been directed to anomalies. They thus jumped the gun and brought a pre-emptive and premature application hopping that court would compel the respondent to register their political party despite the shortages in compliance.

The Electoral Commission is a process based organization that endeavours to ensure that the processes which are so many especially of registration of a national political party are fully complied with. The EC cannot accept to register a party whose documentation and submissions have been found inconsistent, incomplete, incorrect and suspect.

**Procedural Impropriety** has been defined as "the failure to observe the basic rules of Natural Justice or failure to act with procedure fairness towards the person who will be affected by the decision, see the case of, **Council of Civil Union & others v Minister for the Civil Service (1985) AC 374.**

The respondent's rejection was a soft rejection based on the applicants' dilatory conduct of balking to mend the dents and inefficiencies identified in their submissions for registration. The respondent was kind enough to guide the applicant to seek alternative redress from the courts of law since it had failed at the Electoral Commission.

The EC did not wantonly and irrationally reject the submissions of the applicants without giving them a hearing or ample space and time to clean up their submissions. *Irrationality has been defined by court to mean gross unreasonableness in the decision taken or act done*, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision.

I did not find any evidence that the EC behaved irrationally or illegally or failed to follow any procedure to the detriment of the applicants. Evidence in the correspondences indicate that the applicants had not satisfied the requirements for the registration of their political party **Yote Azale Party.**

The rejection letter stated that **'**The Electoral Commission caused independent inquiries to ascertain the truth and the correctness of particulars submitted with the applicants under section 7 (3) under the Political Parties and Organizations Act it was established that the results were negative upon the **re-verification** exercise. Thus the justification for non-registration. There had been a first verification by the Districts Electoral Officials and upon complaint by the applicants the particulars were **re-verified** but still they were found to be unsatisfactory.

11th June,2025

If the court was to grant the prerogative order of **mandamus**, *the applicants would still be required to fulfil all the requirements as enunciated in the law leading to the same outcome as if the applicants had gone back to the field and corrected and perfected their submissions as had been directed by the respondent*.

The time the applicants have spent in court seeking for Judicial Review would have been sufficient for them to go back to the field to comply with section 7 of the Political Parties and Organisations Act 2005 which requires a promoter wishing to register a political party or organisation to attach to their application a list of *the full names and addresses of at least fifty members* of their political party from each of at least two thirds of all Districts in Uganda. According to the respondent, and there is evidence to that effect, the applicants failed to do that.

Whatever the case therefore, the application fails on the preliminary objection in the alternative on the ground of **NOT** being **amenable** to Judicial Review due to being **time barred.**

The application for Judicial Review is **Dismissed** and the order of **Mandamus** is denied

The costs are awarded to the Respondent.

**Bonny Isaac Teko JUDGE 11th June 2025**