Kamana Wesonga v Interim Electoral Commission and Others (Civil Application No. 22 of 1996) [1997] UGCA 24 (21 February 1997)

# THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

#### AT KAMPALA

| CERTIFIED TRUE COPY OF THE ORIG | |-----------------------------------------------------------------------------------------------------------------------------------------------------| | Juroma<br>$\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$<br>Registrar of the Carry of appeal. Ur- | | |

# CIVIL APPLICATION NO. 22 OF 1996

HON. MANYINDO, D. C. J. CORAM:

EDWARD KAMANA WESONGA....................................

#### VERSUS

INTERIM ELECTORAL COMMISSION.................................. & 2 OTHERS.

#### Ruling of Manyindo, DCJ:

This is an application, brought by Notice of Motion under Rule 4 of the Rules of this court, for extension of time within which to file The applicant and the third respondent, Sylvester an appeal. vied for the Bubulo West Constituency Wasieba Wanjusi, Parliamentary seat in the June, 1996 elections. The third respondent was declared the winner.

The applicant contested the election result in the High Court. The petition has brought against the present respondents – the Interim Electoral Commission, the Returning Officer, Mbale and the third respondent in that order. Before the petition was heard, the third respondent successfully moved the High Court for an order striking out the petition on the ground that it was incompetent as the applicant lacked capacity to bring it as he had not been validly nominated and, therefore, he was not a losing candidate. The petition was struck out by Kania, Ag. J.(as he then was) on 18.10.96. That Ruling in effect disposed of the petition, it became a final order.

The applicant now wishes to appeal against that order. The application for extension of time is based on the grounds(a) that the

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applicant's Advocate, Mr. Sam Ringwegi, fell sick before the Ruling of the trial Judge was delivered and remained sick for a long time after the Ruling had been delivered so that the appeal was not filed and (b) that the appeal is likely to succeed. The application is supported by the affidavits of Peter Ringwegi a brother of Sam Ringwegi and one Oketch Venji who is stated to be a law clerk in the chambers of Advocate Sam Ringwegi.

Time can only be extended if sufficient cause is shown.

The sufficient cause must relate to the inability to take the necessary step within the prescribed time – Mugo and others Wanyiru and Another, [1970] E. A. 481 at 483, and Clouds 10 Ltd v Standard Chartered Bank (U) Ltd., Civil Appeal No. 35 of 1992, Supreme Court (unreported).

If the applicant is found to be guilty of dilatory conduct then the time will not be extended – Shanti v Hindocha and others [1973] E. A. 207 and Nabatanzi v Binsobedde, Civil Application No. 6 of 1987, Supreme Court (unreported). It is not necessary for the applicant to establish that the appeal has good chances of success but where that fact is established the court will normally take it into account – Shanti (supra).

In the case before me it is not disputed that Sam Ringwegi represented the applicant in the High Court. According to the affidavit of his brother, Peter Ringwegi, he fell sick in October 1996, before the Ruling was given. He was even in a state of coma for sometime and was certainly in that state in December, 1996. There is evidence that the applicant and Peter Ringwegi made several attempts to trace the applicant's case file in the chambers of Sam Ringwegi in vain. It was not until 29.11.96 that the file was discovered in the house of Sam Ringwegi by peter Ringwegi. According to Peter Ringwegi he handed that file to the applicant on that very day.

It is also not disputed that as soon as he recovered the file the applicant instructed his present Advocates to pursue the matter of appeal which they did. In those circumstances I cannot agree with Counsel for the respondents that the applicant did not act diligently

ERTIFIED TRUE COPY Registrar of the C

in this matter. By their own nature, Election petitions are matters of public importance which would normally amount to sufficient cause - Esso Standard v Income Tax [1971] E. A. 127.

I am satisfied that the delay in this case was due to the sickness of the applicant's previous counsel. The applicant and his present Advocate acted diligently in the matter of appeal as soon as the file was recovered from the house of Mr. Sam Ringwegi. I do not find it necessary to consider whether the appeal is likely to succeed. In the result, I allow this applicant. The applicant shall file the appeal within 14 days from today.

The applicant shall have his costs of the application from the third respondent.

Dated at Kampala of... $\overline{F}$ eby named $\overline{F}$ .................................... Kampala

this

$21$ <sup>st</sup>...day

S. T. MANYINDO DEPUTY CHIEF JUSTICE.

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