Kakembo v Bikako and Another (Election Petition Application 32 of 2016) [2016] UGCA 91 (19 December 2016)

Full Case Text

## 5 **THE REPUBLIC OF UGANDA**

## **IN THE COURT OF APPEAL OF UGANDA AT KAMPALA**

# **ELECTION PETITION APPLICATION NO.32 OF 2016**

# **KAKEMBO MICHEAL ::APPLICANT**

## **VERSUS**

**io 1. ROSE TUMUSIIME BIKAKO**

**2. ELECTORAL COMMISSION RESPONDENTS**

### **CORAM: HON. MR. JUSTICE BARISHAKI CHEBORION, JA**

### **(SINGLE JUSTICE)**

### **15 RULING**

The Applicant and the Respondent participated in the General National Parliamentary Elections held 2016 where they contested for the position of Member of Parliament for Entebbe Municipality. The 1st Respondent was declared as the **20** validly elected Member of Parliament. The Applicant being petition in the High Courl. of on the 18th day of February dissatisfied with the result lodged «

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**5** not conducted in accordance with the principles laid down by the law. Uganda at Kampala contending that the election was

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On the 8th day of July 2016, Justice Henry I. Kawesa dismissed the petition with costs to the Respondents and upheld the election. The Applicant then commenced an Appeal.

**io** This application is brought under the provisions of Section 33 of the Judicature Act CAP. 13, Section 98 of the Civil Procedure Act and Rules 4, 43 and 44 of the Rules of this Court. It seeks for orders that the time within which to file the Memorandum of Appeal and Record of Appeal be extended and costs of this Application be **15** provided for.

The Application is based on 4 grounds set out in the Notice of Motion. They are expounded upon in the affidavit deponed by the applicant dated 17th August 2016. Briefly the grounds are that:

1. The failure to file the Memorandum of Appeal and the Record **20** caused by the delay of Appeal within the prescribed time was on part of the High Court of Uganda at Kampala to avail the

**5** Applicant with typed and certified copies of proceedings and judgment within time.

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- 2. The applicant has been vigilant in pursuing the appeal who, immediately after the delivery of the judgment took the necessary steps to obtain the certified copies of proceedings **10** and judgment. - 3. The intended appeal raises serious points of law requiring judicial interpretation and determination by a superior Court. - 4. The Applicant is likely to be prejudiced unless the time within which to file the Memorandum of Appeal and Record of Appeal **15** is extended.

The Respondents opposed the application in two affidavits in reply: Nakato Stella, Mugerwa and Ali Advocates. The affidavits set forth the following **20** grounds in opposition; one deponed by Rosemary Tumusime Bikako oand the second by a lawyer working with M/s Kabayiza, Kavuma,

i. That the Applicant filed a Notice of Appeal in election petition No.9 of 2016 on the 15th day of July 2016 but the same was

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**5** never served on the 2nd Respondent until the 18th day of August 2016

- ii. That the Record of proceedings and judgment were availed to the Applicant on the 27th day ofJuly 2016 - iii. That despite the Applicant having the record of proceedings **io** and judgment, he has never formulated the grounds of appeal and neither has he filed a memorandum of appeal to date. - iv. That the Applicant is guilty of dilatory conduct and negligence memorandum of appeal within the time stipulated by law. for failure to serve the notice of appeal and filing a - **15 v.** That the intended appeal has no merit and has no chance of failed to take essential steps in the appeal as required by law. success in this Honorable Court as the intended appellant has - vi. That it is fair, equitable and in the interest of justice that the dismissed with costs. application for extension of time within which to file a memorandum of Appeal is denied and the application

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- Kakembo Micheal and the other by Katumba Chrisestom in which they contend briefly that; In rejoinder, the Applicant filed two affidavits one deponed by - a) Whereas the Hon. Justice Isabirye Kawesa read the judgment on the 8th day of July 2016 from his laptop, no copy of the **io** same was availed to me or my counsel until the 5th day of August 2016. - b) It is true I ought to have filed a memorandum of appeal by the 22nd day of July 2016 but was not able to do so due to the fact that I did not have a copy of the judgment and record of **15** proceedings. - c) A copy of the Notice of appeal and a letter requesting for proceedings was served to the 1st Respondent who duly filed a notice of the 1st respondent's address of service. - d) Whereas the Registrar's letter was written on the 27th day of **20** July 2016. I only received the same on the 5th day of August 2016 despite several efforts to secure the same.

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- **5** e) The delay to file an application for extension of time was due to my lawyer's heavy involvement in a number of other petitions despite my constant reminders to him. - not an afterthought as stated but a decision taken in genuine search for justice which I still **10** yearn for. f) The filing of my application was - g) That my intended appeal has merit and deserves a chance to be heard on merit.

At the hearing of the application, the Applicant was represented by Hon. Medard Lubega Ssegona and Mr. Samuel Muyizi Mulindwa **15** while the 1st Respondent was represented by Mr. Thomas Ocaya and 2nd Respondent by Mr. Luo Jarvis holding brief for Mr. Bilan Kabayiza.

delivered on the 8th day of July 2016, the judge read it from his **20** laptop and the applicant only managed to secure a copy and the typed proceedings on the 5th day of August 2016. He had requested the 15th day of July 2016 and sent a reminder on the 28th of July 2016. Counsel for the same by a letter delivered to Court on Counsel for the Applicant submitted that whereas judgment was

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**5** submitted that he had been vigilant in pursuing the certified copy of the judgment and typed proceedings from Court but Court had not provided the same in time despite several reminders. He relied on the case of **Wakayima Musoke Nsereko V Hon. Kasule Robert Ssebunya Court Of Appeal Miscellaneous Application No. 10 of io 2016** where Justice Byabakama Mugenyi, JA stated that where the delay is attributable to Court then this amounts to sufficient reason.

Counsel further submitted that there was also delay on the part of the applicant's counsel. He invited court to look at paragraphs 7, **15** 8,9,10 and 11 of the Applicant's affidavit in rejoinder where he stated that he gave instructions to his lawyer tc file the application for extension of time and indeed signed the affidavit in support of **20** affidavit, he was informed by his lawyer a one Katumba Chrisestom that the delay in filing the application was due to the numerous election petitions he was involved in. He submitted that indeed there was some delay on the part of the Applicant's advocates the application on the 17th day of August 2016 but the same was not filed until 24th August 2016. Under paragraph 8 of the same

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**5** considering that election matters are time bound but the delay should not be treated as dilatory conduct and neither should the same be visited on the applicant who at all times kept on pursuing the case of **Kampala Capital City Authority V Kabandize & Others Supreme Court Civil io Application No.21 of 2014** where Okello, AG,JSC stated that "it is *now* well settled that omission, mistake or inadvertence of counsel constitute "sufficient reason" to justify extension of time." his lawyer. He relied on

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Counsel further argued that it is now settled law that an application for extension of time to file an appeal, the applicant must show **15** sufficient reason before Court can exercise its discretion. He argued that failure of- Court to avail the certified copy of the judgment and ; typed proceedings and the busy schedule of counsel a one Mr. Katumba Chrisestom who was involved in filing numerous election appeals hence the late filing of the application for extension of time **20** were sufficient grounds to warrant Court to exercise its discretion to extend time within which to file the Memorandum of Appeal and. Record of Appeal especially given that it doesn't occasion .any injustice to the other parties.

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5 Counsel for the 1st Respondent opposed the application and submitted that the wealth of authorities in the applications of such sufficient cause must be showed with elements of particularity. He further argued that election petitions are specialized proceedings **10** and have strict time lines to be followed. He relied on the case of **Kasibante Moses V Electoral Commission CA Election Petition Application No.7 of 2012** to buttress his submissions. nature require the applicant to show sufficient cause. That

Counsel further submitted that there are times lines required for **15** Election Petition Appeal. He argued that the Applicant filed the Notice of Appeal on the 15th day of July 2016; the Memorandum of Appeal is required to be filed within 7 days therefore it ought to have been filed by 22nd July 2016. The Record of Appeal should have been filed by the 22nd day of August 2016. He further argued **20** that the evidence of actual availability of the judgment is not as averred by the applicant and that the time within which the applicant had the judgment to formulate the grounds ■; for- the. Memorandum of Appeal was available. He further argued that the the filing of the necessary documentation for prosecution of an

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- **5** Record of proceedings was availed bn, the 27th of July 2016 and the j Applicant had until 22nd Augusbtb file the Record of Appeal and the Memorandum of Appeal has not been filed to date. - Counsel for the 2nd Respondent submitted that the Applicant failed to. exercise due diligence in the pursuit of his case and as such did **10** not take any essential steps as required by the law. He further argued that the Applicant and his lawyers were in the business of writing letters to the registrar to avail them with the record of proceedings instead of being diligent. Having failed to exercise due diligence between the 15th of July 2015 and the 28th of July 2016 **.15** when the next letter was written requesting for the record of proceedings, then they contributed to the delay.

**20** the reason why the Applicant has not filed the Memorandum of Appeal is because leave has to be granted by this Honourable Court. In rejoinder, counsel for the Applicant submitted that the rules of procedure which placed the time limits also placed exceptions where one can apply for extension of time. He further stated that

------------------:—*-r-* **5** I have read and considered the pleadings as well as submissions of both counsel for the applicant and the respondents.

**Rule 2(2) of the Judicature (Court of Appeal) Rules** which vests inherent powers in this Court to make such orders as are necessary to meet the ends ofjustice provides thus:

- **10** *affect the inherent power of the Court, or the High Court, to make such orders as may be necessary for attaining the ends ofjustice or to prevent abuse of the process of any such Court, and that power shall extend to setting aside Judgments which* **15** *have been proved null and void after they have been passed, and shall be exercised to prevent abuse of the process of any "Nothing in these Rules shall be taken to limit or otherwise Court caused by delay."* - **Rule 5 of the Judicature (Court of Appeal) Rules** gives Court discretion for sufficient reason to extend time limited by the Rules **20** for doing any act authorized by the Rules whether before or after the expiration of that time and whether before the act. or after the doing of

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**5** Rule 30 of the Parliamentary Elections (Election Petitions) Rules requires that a Memorandum of Appeal in election Appeals to be filed within seven (7) days after the Notice of Appeal has been given.

**Rule 31 of the Parliamentary Elections (Election Petition)** io **Rules,** requires the Respondent to file the Record of Appeal within thirty (30) days after the filing of the Memorandum of Appeal.

The principles under which Courts discretion to extend time can be exercised where set out in **SHANTI V HINDOCHA AND OTHERS [1973] E. A 207 AT** 209 where it was held that:

**15** *different from, that of an application for leave to appeal. He is concerned with showing "sufficient reason" why he should show, as in Bhat's case (1962) E. A 497, is that the delay has* **20** *not been caused or contributed to by dilatory conduct on his part. be given more time and the most persuasive reason he can "The position of the applicant for extension of time is entirely*

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**5** delivered on the 8th day ofJuly 2016, the applicant only managed to secure the judgment and the typed proceedings on the 5th day of Court on the 15th day of July 2016 and sent a reminder on the 28th io of July 2016. Counsel argued that he had been vigilant in pursuing the certified copy of the judgment and typed proceedings from Court but Court had not provided the same within the stipulated time despite several reminders. August 2016. He had requested for the same by a letter delivered to Counsel for the Applicant submitted that whereas judgment was

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**In WAKAYIMA MUSOKE NSEREKO V HON. KASULE ROBERT 15 SSEBUNYA COURT OF APPEAL MISCELLANEOUS APPLICATION** *officials have been held to be sufficient grounds for granting extension of time to an applicant to file his or her appeal out* **20** *Courts". of time if the delay was duly attributable entirely to the* **NO. 10 OF 2016,** Court stated that *''errors or mistakes of Court*

According to **Rule 2 of the Parliamentary Elections (Election Petitions) (Production of Records of Appeals) Direction, SI 141-** 4, the trial Court is required to ensure that the proceedings are

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Record of Appeal. typed and produced in time for the expeditious production of the

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The party who seeks that Court exercises its discretion to extend time must be diligent in making the application without undue delay. The reason given for the delay ought to relate to the inability **10** or failure to take the particular step and the responsibility is on the applicant to prove to the satisfaction of Court that for sufficient reason it was not possible for the particular step to be taken within the time prescribed by law. On its part, the Court ought to exercise the discretion judicially after analyzing the facts and the law.

?.■ Memorandum of Appeal and the Record of Appeal within the prescribed days provided for by the. law. It is for these reasons that the Applicant failed to file a

The purpose of Rule 5 is to preVent denial ofjustice to an applicant *(* on ground of technicalities where sufficient reason has been shown. **20** What constitutes sufficient reason depends on the circumstances of each case. In **UGANDA COMMERCIAL BANK V SEVERIO ORYEDA COURT OF APPEAL CIVIL APPLICATION NO.3 OF 1986,** Lubogo Ag. JA stated that **"it** *would appear to me that a refusal to*

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**5** *grant leave to extend time to file an appeal would cause the delay was caused by the Court in injustice especially as this case"*

I agree with the conclusion that if the delay is caused by the Court as it is in this case, then refusal to grant the extension would cause an injustice to the Applicant.

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In **MUGO & OTHERS V WANJIRU & ANOTHER (1970) E. A 481, Spry V-P** stated that *"I would agree to this extent, that I do not think the fact that an appeal appears likely to succeed can of* **15** *sufficient reason must relate to the inability orfailure to take the particular step in time, but I am not prepared to say that no other consideration may be invoked" itself amount to a "sufficient reason". Normally, I think,*

The Applicant had done eveiything possible to file his appeal. He the 15th of July 2016 and served the **20** respondents. On the same day he applied for the typed and certified Memorandum and Record of Appeal. The same were availed to him filed a Notice of Appeal on copies of proceedings and judgment to enable him file a

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on the 5th day of August 201'6: long after the time for filing the Memorandum of Appeal had lapsed.

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evidence where needed should ^appreciated by the Courts. the challenges it comes with such as getting material for use as The judge read the judgment from his laptop on the 8th day of July 2016. The parties could not therefore; access signed hard copies of the judgment there and thejj&fTWile advancement and use of emerging technology is appreciated and should be grasped by all,

obtain the judgment and the ■Record of proceedings from Court, **15** however Court availed the same bn the 5th day of August 2016 long *attributable entirely to the Courts.* I am satisfied that the Applicant took all the necessary steps to after the time for filing the Memorandum of Appeal had passed. In BHATT V TEJWART SINGH (1962) EA 497, *Court decided that there was "sufficient reason" where the delay had been*

memorandum and record of appeal. He actually swore an affidavit In paragraphs 7, 8, 9, 10 and 11. of the applicant's affidavit in rejoinder, he avers that he gave: instructions to his lawyers to file an application for extension of time within which to file the

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**5** in support of the application on the 17th day of August 2016 but his lawyer Katumba Chrisestom concedes that because of numerous election petitions he application. While it is unethical for counsel to take on too much work than he can handle, the consequence of his inaction that is **io** failure to file the application should not be suffered by the applicant. It would amount to an injustice to make the applicant suffer for a fault he did not contribute to. was handling he was unable to file the

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I agree that election petitions are specialized proceedings and should be handled expeditiously but where delays are caused by **15** the Courts and Advocates who themselves are officers of Court; unknowledgeable clients who depend on them should not be made to suffer.

This Court finds that failure of the lower Court to avail the certified copy of the judgment and typed proceedings and the busy schedule **20** of counsel a one Mr. Katumba Chrisestom who was involved in filing numerous election appeals hence the late filing of the application for extension of time were sufficient grounds to warrant

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Court to exercise its power to extend time within which to file the 5 Memorandum of Appeal and Record of Appeal.

In conclusion, the application for extension of time within which to file the Memorandum of Appeal and Record of Appeal is granted to the Applicant.

Each party shall bear its own costs. $10$

I so order. day of.. Dated this 15 HON. MR. JUSTICE. CHEBORION BARISHAKI, JA Registrat 20 $\theta$

Late Samuel Ting's for Apploancy. $\alpha$ $\gamma$ cc $\iota$ s titles . $\mathcal{Z}$ CERT. FIED IN Registral Orde