Kirumira Hassan v Magara Patricia (Election Petition Application No 13 of 2021) [2022] UGCA 353 (6 May 2022)

Full Case Text

# THE REPUBLIC OF UGANDA,

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(CORAM: EGONDA NTENDE, MADRAMA AND LUSWATA JJA)

### ELECTION PETITION APPLICATION NO 13 OF 2021

KIRUMIRA HASSAN} . APPLICANT

### VERSUS

MAGARA PATRICIA} 1 RESPONDENT

### RULING OF CHRISTOPHER MADRAMA, JA

15 The applicant filed this application under the provisions of rules 30, 31 and 36 of the Parliamentary Elections (Election Petition) Rules S I 141 - 2 and rules 43 (1), (2), 82 and 88 of the Judicature (Court of Appeal) Rules for an order that the Notice of Appeal be struck out on the ground that several essential steps have not been taken or taken within the prescribed time and for an order that the costs of the application is provided for.

20 The application is further supported by the affidavit of Geoffrey Komakech an advocate of the courts of judicature practising with Victoria Advocates & Legal Consultants in which he deposed that:

He is an advocate of the courts of judicature and his firm jointly represented the applicant with Ruhinda & Company Advocates in the High Court. On 14lh September 2021, the Respondents petition was dismissed by the High Court.

- 25 On 2first September 2021, his firm Messieurs Victoria Advocates and Legal Consultants was served with a notice of appeal filed on behalf of the Respondent. They were however not served with the letter requesting for the record of proceedings. He checked the registry and the Court of Appeal and found that no memorandum of appeal had been filed within the time - 30 prescribed by law. Secondly, no record of appeal has been filed within the time prescribed by law. He notes that the notice of appeal was filed on 20th of September 2021 and it is now 47 days since and no other document was

5 filed. On that basis he believes that the Respondent has failed to take the essential steps of applying for the proceedings and has not taken two essential steps in the proceedings.

10 15 For hearing on 21st of March 2021, learned Counsel Mr Wandera Ogalo appeared for the applicant and submitted that the Respondent is represented by the firm of Turinawe Kamba and Company Advocates. This firm had filed a notice of appeal and the application was served upon them whereupon they acknowledged service. We were satisfied that the Respondent was served at the address for service disclosed in the notice of appeal with both the notice of motion and the hearing notice in this application and allowed the application to proceed ex parte rule 100 (3) of the Rules of this court. The applicant had already filed written submissions in support of the application on third March 2022 and the applicant's Counsel relied on those submissions.

20 In the written submissions, the applicant's Counsel addressed the court on three grounds namely:

- 1. Failure to file and serve a memorandum of appeal. - 2. Failure to file and serve the record of appeal. - 3. Failure to serve a copy of the letter requesting for proceedings.

25 30 35 In relation to the first ground of failure to file and serve the memorandum of appeal, the Appellants Counsel relied on Annexure "A" to the affidavit in support of the application attaches the notice of appeal which discloses that it was received by the High Court on 20th September and was also received in the Court of Appeal on 21s1 September 2021 respectively. It was served on both Counsel of the applicant on the same day. The applicant's Counsel submitted that a memorandum of appeal ought to have been filed on or before 27th September 2021 and it is now 5 months since the memorandum of appeal was due. In the premises, the applicant's Counsel submitted that the Respondent failed to take an essential step of filing a memorandum of appeal within 7 days as provided for by rule 30 of the Parliamentary Elections (Election Petitions) Rules which provides that a memorandum of

s appeal shall, where a written notice of appeal has been given, be filed within 7 days after notice was given.

On the second ground of failure to file and serve the record of appeal, the applicants Counsel relied on rule 31 of the Parliamentary Elections (Election Petitions) rules which provides that the Appellant must lodge the record of io appeal within thirty days after filing the memorandum of appeal. Further, that the memorandum of appeal ought to have been filed on 27th of September 2021. Secondly, the record of appeal ought to have been filed on or before 26th October 2021 but was not. Counsel relied on Baluba Mukasa Peter and Another v Nalunga Mary Margaret; Application No 24 of 2011 is where the Respondent failed to file the record of appeal within 30 days and this court held that rule 31 is couched in mandatory words and because it was not complied with, the notice of appeal was struck out. The applicant's Counsel submitted that failure to file the record of appeal rendered the Respondent's notice of appeal a nullity and the Respondent appears to have

20 no interest to pursue the appeal. Moreover, the Respondent has not even applied for extension of time to file the necessary documents.

On the third point, the applicants Counsel submitted that under rule 85 (3) of the Judicature (Court of Appeal) Rules, the applicant was required to serve a copy of the letter requesting for the record of proceedings of the 25 trial court which she did not do. He relied on Nyendwoha Birirwa Norah v The Returning Officer and Another (Civil Application No 233 of 2011) [2012] UGCA 9 where it was held by this court that failure by the Respondent to serve the applicant with a copy of the letter requesting for the proceedings immediately it was written to the court amounted to failure by the 30 Respondent to take an essential step in prosecuting the appeal. Such a failure was fatal and the final result was that the applicant's application was allowed and the Respondent's notice of appeal was struck out. Counsel also relied on the Kenyan decision of Mae Properties Ltd v Joseph Kibe and another, Court of Appeal; Civil Appeal (Application) No 201 of 2016 for the

35 holding that the notice of appeal dies a natural death after the expiry of 60 days unless it's life should be sooner extended by the lodgement of the

- 5 appeal within 60 literal days or such longer time as may still amount to 60 days by operation of the proviso to rule 82 (1) on exclusion. It may also be resuscitated by an order extending time for lodging of the appeal. In the absence of those circumstances, the notice of appeal dies in the eyes of the law. The applicants Counsel submitted that rule 82 (1) of the Kenyan Court - 10 of Appeal Rules is in *pari materia* with the Ugandan rule 83 (1) of the Rules of this court.

In the circumstances the Appellant prayed that the notice of appeal is struck out with costs for 2 Counsel.

# Consideration of application

- 15 I have carefully considered the application and it discloses that the notice of appeal was filed in the High Court of Uganda on 20th September 2021 showing that the Appellant was dissatisfied with the decision of Hon Lady Justice Margaret Apiny delivered on 14lb September, 2021 and intended to appeal to the Court of Appeal of Uganda against the whole decision. It is - 20 further indicated that the address for service of the Appellant is Messieurs Turinawe, Kamba & Company Advocates, Plot 88 Ben Kiwanuka Street, Master Plaza, Suite F6 and F7. The notice also discloses that it was intended to serve the notice of appeal on two firms of advocates namely Messieurs Ruhinda & Co Advocates and Messieurs Victoria Advocates. The notice of - 25 appeal Annexure "A" is acknowledged by Messieurs Victoria Advocates & Legal Consultants on 21st September 2021. It was lodged in the High Court on 20 September 2021 and filed in the Court of Appeal on 21s1 September 2021.

30 Since that time, there is no evidence that the applicant complied with other procedural steps of filing a memorandum of appeal and the record of appeal.

The Parliamentary Election (Interim Provisions) Rules S I 141 - 2 rule 29 provides as follows:

Notice of appeal shall be given either orally at the time judgment is given or in writing within 7 days after the judgment of the High Court against which the appeal is being made.

The facts disclosed are that a decision of the High Court was delivered on 14lh of September 2021 and the intending Appellant duly filed a notice of appeal which was lodged in the High Court on 20th September 2021 and served on the Respondent's Counsel on 21s' September 2021.

The notice of appeal was therefore filed in time. Secondly, rule 30 of the Parliamentary Elections (Interim Provisions) rules provides that:

30. Memorandum of appeal.

A memorandum of appeal shall be filed with the registrar -

- (a) in a case where or notice of appeal has been given, within 14 days after the notice was given; and - (b) in a case where a written notice of appeal has been given, within 7 days after notice was given. - 20 According to the affidavit in support of Mr. Geoffrey Komakech and paragraph 6 thereof, discloses that he checked at the Court of Appeal Registry and found that no memorandum of appeal had been filed within the time prescribed by law. Secondly, no record of appeal had been filed within the time prescribed by law. The affidavit was deposed to on 8,h November - 25 30 2021. Accordingly, where a written notice of appeal has been given as in this case, the memorandum of appeal shall be filed with the registrar of the Court of Appeal within 7 days after the notice was given. 7 days after 20,h of September 2021 is 27th September, 2021. By 8th of November 2021, when the deponent found that no memorandum of appeal had been filed, it was already way out of time and therefore no essential step prescribed by the rules had been taken.

Secondly, it's a requirement under the Rules that the record of appeal has to be filed within 30 days after the filing of the memorandum of appeal. No memorandum of appeal was filed. Nonetheless, I have considered rule 31 of

#### 5 the Parliamentary Elections Act (Interim Provisions) Rules which provides that:

The Appellant shall lodge with the registrar the record of appeal within 30 days after the filing by him or her of the memorandum of appeal.

10 Further, rule 36 of the Parliamentary Elections (Interim Provisions) Rules provides that:

> Subject to such modifications as the court may direct in the interests of justice and the expedition of the proceedings, any rules regulating the procedure and practice on appeal from decisions of the High Court to the Court of Appeal in civil matters shall apply to appeals under this part of these rules.

15 20 The question is what happens where an intending Appellant does not comply with rules 30 and 31 of the Parliamentary Elections (Interim Provision) Rules which have been reproduced above. Resort can be had to the Court of Appeal Rules under rule 36 of the Parliamentary Elections (Interim Provisions) Rules. Rule 82 of the Judicature (Court of Appeal Rules) Directions provides that:

82. Application to strike out the notice of appeal or appeal.

A person on whom a notice of appeal has been served may at any time, either before or after the institution of the appeal, apply to the court to strike out the notice of the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time.

30 35 Clearly no essential step in the proceeding had been taken by lodging of the memorandum of appeal within 7 days after the notice of appeal was lodged in the High Court and further no essential step was taken by the filing of a record of appeal after a memorandum of appeal was filed. No memorandum of appeal was filed and therefore the essential step of filing the memorandum of appeal is sufficient to apply rule 82 of the Rules of this court to strike out the notice of appeal. A memorandum of appeal ought to have been filed by 27th of September 2021. Rule 82 of the Rules of this court was applied in Geoffrey Omara v Charles Andiro Gutumoi Abacacon and the

- 5 Electoral Commission; Election Petition Appeal No 106 of the 16 and Election Petition Application No 042 of 2017 arising from Election Petition No 006 of 2016. In that matter the decision of the High Court was delivered on 13lh June 2016 dismissing the petition. The intending Appellant filed a notice of appeal on 24th of June 2016 and served it on the applicant on 1st July 2016. The - 10 Respondents to the intending appeal objected to the appeal on the ground that no essential step required by the law had been taken or taken within time. The Court of Appeal noted that the rule 82 of the Rules of this court provides for two instances where a person served with a notice of appeal can move court to strike out the notice of appeal or the appeal itself. The - 15 first one is that on the ground that no appeal lies. The second ground would be that the person served claimed that the intending Appellant has not taken an essential step at all in the proceedings or had taken the step outside the time prescribed by the rules. The court noted that the Judgment appealed against was delivered on 13th June 2016 and the Appellant filed a notice of - 20 appeal on 24th of June 2016 and the notice was endorsed by the Registrar on 29lh of June 2016. A notice of appeal had to be given within 7 days after the judgment of the court against which the appeal is being made. The Appellants notice of appeal was lodged outside the time of 7 days in contravention of rule 29 of the Parliamentary Elections (Interim Provisions) - 25 30 Rules. Secondly, having filed a notice of appeal, the intending Appellant failed to comply with other requirements in pursuit of the appeal by lodging the memorandum of appeal within 7 days after filing the notice of appeal and lodging the record of appeal within 30 days after filing the memorandum of appeal and serving the Respondents in time. The duty was on the Appellant to be vigilant in the pursuit of his appeal. They found that - the Appellant fell short of carrying out that duty. The court allowed the application to strike out the notice of appeal with costs.

In Bakaluba Mukasa Peter and Electoral Commission v Nalugo Mary Margaret Sekiziyivu; Election Petition Application No. 24 of 2011, the Court

35 of Appeal allowed a similar application to strike out the appeal and stated that:

- 5 Delay in taking the right step in the litigation at the right time hinders successful parties from enjoying the fruits of their Judgment which was obtained in their favour. The Respondent has delayed in taking the right step at the right time with the result that the application would be allowed and the notice of appeal would be struck out with each party bearing its costs. - io The facts of this appeal are that the Respondent who is the intending Appellant, after filing a notice of appeal within time, neither filed the memorandum of appeal pursuant to rule 30 nor the record of appeal pursuant to rule 31 of the Parliamentary Elections (Interim Provisions) Rules respectively and thereby failed to take essential steps prescribed by 15 the Rules. In the premises, the notice of appeal is struck out for failure to take the essential steps as set out above.

Secondly, the notice of appeal was served on two firms of advocates. The notice of motion to strike out the appeal was drawn and filed by Messieurs Victoria Advocates & Legal Consultants but the written submissions were

- 20 jointly drawn and filed by Messieurs Victoria Advocates & Legal Consultants and R. M Ruhinda Advocates & Solicitors. However, the intending Appellant never took any further steps or proceedings after lodging and serving the notice of appeal and even the current application was unopposed by her. I would in the circumstances find there was no work which required two 25 Counsel and none requiring two Counsel was done. In the premises, I would disallow the prayer for certification of costs for two Counsel. Nevertheless, - costs follow the event under section 27 (2) of the Civil Procedure Act and I would strike out the Respondent's Notice of Appeal with costs.

Ruling delivered at Kampala on the day of ' ' 2022

Christopher Madrama

Justice of Appeal

# **THE REPUBLIC OF UGANDA**

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

# **[CORAM: EGONDA NTENDE JA, CHRISTOPHER MADRAMA JA & JUSTICE EVA K. LUSWATA JA**

# **ELECTION PETITION APPLICATION NO. 013 OF 2021**

**KIRUMIRA HASSAN I::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

### **VERSUS**

**MAGARA PATRICIA ::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

### **RULING OF EVA K. LUSWATA JA**

- 1] I have equally had the opportunity to read the draft judgment prepared by Christopher Madrama JA. 1 do agree with his findings and decision, and have nothing to add - 2] I would dismiss this application with costs. - 3] I find no merit in the application for a certificate of two counsel. I would deny it.

**SIGNED,** dated and delivered at Kampala this day of Ap-rw 2022.

Eva K. Luswata.

**Justice of Appeal**

# **THE REPUBLIC OF UGANDA,**

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

# **(CORAM: Egonda-Ntende, Madrania & Luswata, JJA)**

# **ELECTION PETITION APPLICATION NO 13 OF 2021**

**KIRUM IRA HASSAN==============—===APPLICANT**

### **AND**

**M AGA RA PATR1 CIA==========RESPONDENT**

# **RULING OF FREDRICK EGONDA-NTENDE, JA**

- [ 1 ] I have had the opportunity to read in draft the ruling by my brother, Madrania, JA. 1 agree with it and have nothing useful to add. - [2] As Kawuma Luswata, JA, also agrees this application is dismissed with costs. The application for a certificate oftwo counsel is denied.

*6* Signed, dated and delivered at Kampala this day of