Tete Chelengat v Electoral Commission and Another (Election Petition Appeal No. 8 of 2022) [2022] UGCA 136 (6 May 2022)

Full Case Text

#### THE REPUBLIC OF UGANDA

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

[Coram: Egonda-Ntende, Madrama & Kawuma Luswata, JJA]

# ELECTION PETITION APPEAL APPLICATIONS NO. 08 OF 2022, 11 OF 2022 & 14 OF 2022

(Arising from Election Petition Appeal No. 84 of 2021)

(Arising from Election Petition No. 006 of 2021)

#### **BETWEEN**

Tete Chelengat Everline ================ Applicant /Respondent

### AND

Electoral Commission $==$ Respondent No.1

Chemutai Everlyn===========================Respondent No.2/Applicant

### RULING OF FREDRICK EGONDA-NTENDE, JA

### **Introduction**

- The applicant and respondent no.2 were candidates for the seat of the $[1]$ woman representative of Parliament for Bukwo District in the general elections held on 14th January 2021. The Electoral Commission returned respondent no.2 as the validly elected Woman representative of Parliament for the constituency. The applicant filed Election Petition No. 006 of 2021 at Mbale High court challenging the outcome of the election. - [2] On 19th October 2021, the High Court of Uganda at Mbale decided the petition in favour of respondent no.2 and dismissed it. On 26th October 2021, the applicant filed a notice of appeal and a letter requesting for a

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certified copy ofthe record ofproceedings which was served on the respondent no. 2 on 29tr' October 2021. The tnemorandum of appeal was flled on 28'r' December 2021 after the prescribed time within which to file the memorandum of appeal had elapsed. On 3 I '' January 2022, respondent no.2 flled Election Petition Application No. 08 of 2022 seeking to strike out the appeal on the ground that it is incurably incompetent for being filed out of time. The applicant filed Election Petition Application No. I I of 2022 seeking to adduce additional evidence on appeal. And on 8'h February 2022,the applicant filed Election Petition Application No. l4 of 2022 seeking to extend the time within which to appeal and to validate the Memorandum of appeal filed in this court outside the prescribed time.

t3] It is necessary that we dispose ofthe applications before the court before we consider the main appeal. Much as they are 3 applications in number I will resolve all of them in one joint ruling with subheadings for each application for clarity. I will start by considering Application No. l4 of 2022 though it was the last to be filed as doing so will not pre-empt the decision in relation to Application No. 1l of 2022 in particular. I will consider Application No. I I of 2022 last as it is pertinent to determine first ifthere is a competent appeal before this court before we can consider whether or not to admit additional evidence. I will therefbre consider Application No. 8 of 2022, last, after I have considered Application No. l4 of 2022

# Election Petition Application No. l4 of 2022

purposes of the Appeal.

t41 The grounds in Election Petition Appeal Application No. l4 of 2022 were set out as follows:

> 'i. The Applicant was dissatislled with the judgement and orders ofthe learned trial Judge in Mbale Election Petition No. 6 of 2021 . ii. 1'he Applicant filed her Notice of Appeal and a lelter requesting for the typed Record of Proceedings lbr

> > Page 2 of 31

iii. The Notice of Appeal and letter requesling for typed proccedings were flled and served on both ofthe Respondents within the stipulaled timelines.

iv. 1 he Appellant has complied with the necessary steps required to be taken in the pursuit ofan inlended appeal. v. The notice of appeal clearly cast that the grounds of Appeal shall be fbrmulated and lodged fbllowing the receipt olthe typcd proceedings fbrm the Iligh Court at Mbale.

vi. The typed proceedings were tinally ready and certified during the Chrislmas break by the Deputy Registrar at the High Courl in Mbale and received by the Applicanl's counsel on 27th Dccember. 2021 .

vii. The Memorandum olAppeal was filed on the 28rh day of December 2021 and served on the Respondents on 4rh January,2022.

viii. The Record of Appcal was tlled on 7'h January. 2022 and served on thc Respondents within the 30 day period granted fbr its filing.

ix. The Memorandum ofAppeal and Record ofAppeal already on the court record and served on the Respondents should be validated to hear the Election Petition Appeal on its merits.

x. The court should grant an extension of time within which to file and serve the Memorandum and Record ol Appeal on the Respondents.

xi. The application has been made without undue delay. xii. The respondents will not sul'fer any injuslice or prejudice il'the application is granted.

xiii. That this Apptication has been brought without undue delay to expedite the proceeding ofthe appeal. xiv. lt is in the interest of substantive iustice that this application be granted 1o enablc court examine the issues in contention.'

t51 Both the respondents opposed the application. Respondent no.2 filed an affidavit in reply to the application and Kugonza Enoch, the principal legal officer to the respondent deponed an affidavit in reply to the application on behalfof respondent no.l .

## Submissions of Counsel

- t6l At the hearing, the applicant was represented by Mr. Elijah Enyimu and Mr. Okiror Morris, respondent no. I was represented by Mr. Mwase Jude and respondent no.2 was represented by Mr. Ambrose Tebyasa, Mr. Evans Ochieng and Ms. Sandra Vicensia Namigadde. The parties opted to rely on their written submissions on record. - t7) Counsel for the applicant submitted that the notice ofappeal notified the respondents that the applicant intended to file the memorandum ofappeal upon receiving the certified copy ofthe record ofproceedings. The record of proceedings was ready on 2 I'r December 202 I during the Christmas break and the same was received by the applicant on 28tr' December 2022. The memorandum ofappeal was served on the respondents on 4'h January 2022 without protest. Counsel submitted that the record of appeal was then prepared and filed on 7'r'January 2022 and served on the respondents within the required 30 days. - t8] Counsel for the applicant submitted that Rule 5 of the Judicature (Court of Appeal Rules) Directions gives this court the discretion, for sufficient reason to extend time. Counsel relied on Ebil v Ocen I20r71 UGCA r06 where it was held that the reason advanced for extension of tilne must be one that is cogent and touching on the inability to take an appropriate step. - tgl Counsel for the applicant submitted, relying on Kajara v Mugisha [2017.l UGCA 122 that rule 82 (3) of the rules of this court pursuant to Rule 36 of the Election Petitions Rules provides that the time within which an appeal rnay be lodged can be extended if the appellant applied in writing for a copy ofthe record ofproceedings and served the respondent with a copy of the letter. - ! 01 Counsel for the applicants submitted that the applicant filed the memorandum of record out of time due to the delay in the preparation of the typed record of proceedings. The file had to be returned to Mbale High court fbr purposes of typing the proceedings since the judgment had been

delivered at Land division at Kampala. The draft of the typed record of proceedings had to be retumed to the commercial court as the new station of the trial judge tbr proof reading and finally returned to Mbale High couft for certiflcation. Counsel submitted that the memorandum and record ofappeal already form part of the record and have been served on and received by the respondents. Counsel for the applicant contended that no prejudice or injustice shall be occasioned to the respondents by the validation of the memorandum and the record of appeal.

- I l] On the other hand, counsel for respondent no.2 submitted in reply that the applicant had all the relevant materials by l9'r' October 2021 to commence the appeal. Counsel was in possession of the pleadings from both parties, the joint scheduling memorandum, submissions from both parties and the judgment. Counsel argued that the applicant was not vigilant because she was notified by court that the proceedings were ready for collection by l6'r' December 202 I but picked up the proceedings two weeks later. Counsel for respondent no.2 stated that the applicant was not vigilant and serious enough as a litigator in election matters should be and she deliberately avoided mentioning the said letter in order to conceal her dilatory conduct from court. - [2] Counsel submitted that for more than two months, the applicant never took steps to present and pursue her appeal apart fiom lodging and serving the notice of appeal and the letter requesting for proceedings. Counsel for respondent no.2 submitted that even after the applicant had filed the memorandum of appeal and later the record of appeal in court on 7th January 2022, she never served the same on respondent no.2 within 7 days as required by rule 88( I ) of the rules of this court and instead served respondent no.2 on l" February 2022 after the respondent had filed Election Petition No. 8 of 2022 to strike out the appeal. - [3] Counsel contended that it is settled law that in election petitions, the intending appellant has a heavier duty to be more keen and vigilant to commence and prosecute the appeal, relying on Kasibante Moses v Electoral Commission [20121 UGCA l0

- [4] Counsel for respondent no.2 submitted that the applicant in paragraphs 8, I0, I I and 12 of her affidavit in support ofthe application insisted that she had complied with the law and sought to exonerate herself by shifting blame on court for the alleged delay in availing her with the certified copies of the proceedings, however, the applicant did not dernonstrate that she was vigilant in pursuing the appeal. Counsel submitted that the appellant did not adduce any evidence proving that she took steps to follow up with court on the processing ofthe certified copies ofproceedings. - [ 5] Counsel for respondent no.2 further submitted that election petition appeals are not like ordinary appeals but are special proceedings with special laws and rules of procedure which must be strictly adhered to. Counsel relied on Otada v Tabani and Another t20l7l UGCA 224. Counsel prayed that this court flnds that the applicant never complied with the law and that she is bound by the wrong strategy and approach adopted by her counsel in presenting and prosecuting her appeal. The applicant having chosen to entrust her case with her lawyers is bound by their acts and omissions. Counsel cited Hadondi Daniel v Yolamu Egondi Court of Aopeal Civil Appeal No.67 of2003 (unreported)and Mohammed B Kasasa v Jasphar Buyonga Sirasi Bwoei [20091 UGCA 44. Counsel prayed that the appeal be struck out - [ 6] Counsel for respondent no.2 also submitted that the applicant cannot rely on Article 126(2) (e) of the constitution basing on the decision of this court in Abiriea v Muserna Mudathir 120 l7l UGCA 2 where it was held that Article 126(2) (e) is not a magical wand in the hands of defaulting litigants. An intending appel[ant, more pafiicularly in election petition matters, has a heavier duty to take all necessary steps in commencing and prosecuting the intended appeal and court would not invoke its inherent powers to f'avour a non-diligent litigant. CounseI relied on Kawombe Lameka v Kaf'eero Ssekitooleko Robert Election Petition Application No, l5 ol20l7 (unreported) to support the contention that this application does not disclose sufficient grounds fbr extension of time.

- [ 7] In rejoinder, counsel for the applicant submitted that the securing ofthe typed record of proceedings was in compliance with the requirements of rule 87( I ) (d) and (e) ofthe rules of this court and was relevant for the expedient determination of the appeal since there are grounds of appeal conceming the treatment accorded by the trial judge to the documents presented by the parties in the prosecution of the election petition' Counsel for the applicant submitted that contrary to the submissions of counsel for respondent no.2, a judgment is not the conclusive premise for examining the issues that arise in an appeal, that what transpired in the preliminary hearing like in the scheduling conference can also form the foundation ofa ground ofappeal. - [ 8] Counsel for the applicant submitted that the certifled copy of the record of proceedings was only ready on 2l '1 December 202 I which was within the Christmas break for couft in light of order 5l rule 4 of the Civil Procedure rules. The record was not ready on l6th December 2021 as stated by counsel for respondent no.2, the letter from the registrar clearly stated that the record would be ready upon the payment of requisite fees. Counsel submitted that the certified record of proceedings was accessed on 27'r' December 2021, after the Christmas break thus the applicant took all the necessary steps to present and prosecute the appeal. - [9] Counsel contended that none of the parties had applied for extension of time in the authorities that respondent no'2 seeks to rely on for striking out the appeal. Counsel referred to the Kasibante Moses v Electoral Commission (supra) where the respondent did not write the letter requesting tbr the record ofproceedings and did not apply for extension ol time to flle the notice and memorandum of appeal out of time. Counsel submitted that this was the same for the case o l'Abirisa v Mttsct'ttn Mudathir' (supra). Counsel for the applicant submitted that the case of Otada v Tabani (supra) relates to the merits of the appeal rather than the procedure in lodging the appeal whereas Hadondi Yolamu (supra) is not applicable to this case because it concerns a land dispute arising from the Local council courts.

- [20] Counsel for respondent no.l submitted that election petition appeals are governed by specialised procedures set out in rules 29, 30 and 3l of the Parliamentary (election petitions) Rules SI I 4 l -2. These procedures must be strictly observed and deviation from the same can only happen upon exhaustion all available avenues under the rules. Counsel relied on S eaker of National Assembly v Ngensa Karuoe I20081 I KLR 425 and Abiriea v Musema Mudathir (supra) to support this submission. - [2 l] Counsel submitted that an appeal filed out of time is incompetent and should be struck out. In this case, the record ofappeal and memorandum of appeal was filed out of time. In support thereof he ref'erred to Kubekete iI James v Waira Kyenalabye & Anor I20171 UGCA 107. Counsel contended that election petitions have to be handled expeditiously, the rules and timelines set fbr filing proceedings are couched in mandatory terms and must be strictly interpreted and adhered to. Counsel relied on Abiriea Ibrahim v Musema Mudathir (supra) to support this submission. - [22] Counsel contended, while relying on OmaravAcon&3Ors I 20I6I UGCA 22. that rule 83(2) and (3) of the rules of this court do not apply to institution of election appeals. Counsel submitted that the reasoning of the court in the case was that since parliamentary election petition rules provide for separately filing a memorandum and record of appeal unlike in ordinary civil appeals, an appellant who upon requesting for the record of proceedings which is not availed in time cannot resort to rule 83(2) and (3) because the memorandum ofappeal is an independent document strictly filed within 7 days after filing the notice of appeal and the record of appeal must strictly be flled in 30 days after filing the memorandurn of appeal. - [23] Counsel for respondent no.l contended that in this instant case, the applicant should not have waited for the registrar to avail the record of proceedings as claimed before filing the memorandum of appeal' The applicant had all the necessary documents to formulate the grounds of appeal and to prepare the record ofappeal in time. Counsel contended that in the event of any missing information, the applicant would have resorted

to rule 90(3) of the rules of this court that allows an applicant to frle a supplementary record of appeal.

- [24] Counsel fbr respondent no. I argued that both the applicant and her lawyers were negligent as they did not give the appeal the necessary attention and expedience hence they have notjustified the validation ofthe appeal. Counsel stated that the applicant is guilty ofdilatory conduct by failing to comply with the prescribed time which is inexcusable' Counsel for respondent no.l prayed that this court strikes out the notice and memorandum of appeal with costs. - [25] In rejoinder to counsel for respondent no. I's subrnissions, counsel for the applicant submitted that that rule 83 of the rules of this court is applicable to the election petition rules pursuant to rule 36 of the Parliamentary Elections (Election Petitions) appeal rules. Counsel relied on Ka ara v Mueisha (supra) to support this submission. Counsel submitted that none of the parties in the authorities that respondent no.l relies on applied for extension of time or validation of the appeal. Counsel submitted that in Abiriea v Musema Mudathir (supra), the respondent did not file the letter requesting for the record ofproceedings and did not apply fbr extension of time within which to file the memorandum and record of appeal while in Kubeketerya James v Kvenalabye (supra), the respondents did not apply for extension of time within which to file the memorandum of appeal. In Omara v Acon (supra), the applicant did not serve the notice of appeal on the respondent and the applicant did not show that he served the letter requesting for the record ofproceedings on the respondents. - 126) ln conclusion, counsel submitted that the applicant complied with rule 83 (2) and (3) ofthis courl and prayed that the applicant be allowed to prosecute its appeal in the interest ofjustice.

# Analysis

[27] This application is brought under rules 2(2), rule 5, rule 43( I ) and (2), and rule 83(2) and (3) of the Judicature (Court of Appeal) Directions S'l 13-10,

PaBe 9 of 31 rule 36 of the Parliamentary Election (Election Petition) Rules. Rule 2(2) of the Judicature (Court of Appeal Rules) rules vests in this courl discretionary powers to make such orders as are necessary to meet the ends ofjustice. It states:

'(2) Nothing in these Rules shall be taken to limit or otherwise affect the inherent power ofthe 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 ofany such court, and that power shall extend to setting aside judgments which have been proved null and void afier they have been passed, and shall be exercised to prevent abuse olthe process ofany court caused by delay.'

## [28] Rule 5 of the Judicature (Court of Appeal Rules) Directions S.l l3-10 states;

The court may, fbr sufficient reason, extend the time limited by these Rules or by any decision ofthe court or olthe High Court fbr the doing of any act authorised or required by these Rules. whether befbre or after the expiration of that time and whether belbre or afier the doing of the act; and any ref'erence in these Rules to any such time shall be construed as a ref'erence to the time as extended

[29] The power granted to this court under this rule is discretionary and can only be exercised upon the applicant satisfying court that there is sufficient cause for the extension of time. ln Shanti v Hindocha and others [ 1973] I EA207 at page 207,the court of appeal at Nairobi stated:

> 'The position of an applicant for an extension of time is entirely ditlerent from that of an applicant tbr leave to appeal. He is concerned with showing "sufficient reason" why he should be given more time and the most persuasive reason that he can show, as in Bhatl's case, is that the delay has not been caused or contributed to by dilatory conduct on his part. But there may be other reasons and these are all malters of degree. He does not necessarily have to show that his appeal has a reasonable

prospecl ol'success or even that hc has an arguable case but his application is likely to be viewed more sympathetically if he can do so and if he fails to comply with the requirement set oul abovc he does so at his peril.'

[30] The applicant in this case seeks to extend the time in which to file the memorandum and record ofappeal and consequently validate the appeal. Rule 29 of the Parliamentary Elections (lnterim Provisions) (Election Petitions) Rules Statutory Instrument 141-l requires an intending appellant to file the notice appeal, if it is in writing, within seven days after the judgment is passed. It states:

> 'Notice of appeal may be given either orally at the time judgment is given or in writing within seven days afier the judgment of the t'ligh Court against which the appeal is being made.'

- [3 I] The judgment that the applicant seeks to appeal against was passed on l9'r' October 202 L The applicant filed the notice of appeal in the High court on 26th October 2021 and served the same on respondent no.l on 28th October 2021 and respondent no.2 on 29'r' October 2021. This was done within the prescribed time. - l32l Rule 30 (b) of the Parliamentary Elections (lnterim Provisions) (Election Petitions) rules requires the intended appellant to file the memorandum of appeal within seven days in a case where the notice of appeal was in writing. Rule 30 states:

'A memorandum ol'appeal shall be flled with the registrar- (a) in a case where oral notice ofappeal has been given, within Iburteen days afler the notice was givenl and (b) in a case where a written notice ofappeal has been

given, within seven days aller notice was given.'

PaBe 11 of 31

- [33] The memorandum of appeal ought to have been filed by 3'd November 2021 but was filed in this court on 28th December 202, out of the prescribed time. - [3a]The record ofappeal should be lodged in court 30 days after the memorandum of appeal has been filed in court. Rule 3l provides:

'The appellant shall lodge with the registrar the record of appeal within thirty days afler the tiling by him or her of the memorandum of appeal.'

[35] The applicant lodged the record ofappeal in this court on 7th January 2022 which is also out of the prescribed time. The rules and timelines set out above are couched in mandatory terms. There is no doubt that election matters must be handled expeditiously thus the specialized rules of procedure and laws governing the hearing of such matters' This is premised on Article 140 of the Constitution which states:

> '( I ) Where any question is belbre the High Cou( Ibr delermination under Article 86 ( I ) of this Constitution. the Iligh Court shall procecd to hear and determine the question expeditiously and may, tbr that purpose suspend any olher matler pcnding hclbrc it.

> (2) This Article shall apply in a similar manner to the Court olAppeal and the Supreme Court when hearing and determining appeals on questions rei'erred to clause ( I ) of this article.'

- [36] The wording of the above provision is re-echoed in sections 63 (2) and 66 (2) of the Parliamentary Elections Act and Rules l3 and 33 of the Parliamentary Elections (lnterim Provisions) (Election Petitions) Rules. - [37] The applicant sought to rely on rule 83 (2) of the rules of this court which grants an automatic extension of time in consideration of the time taken to prepare and deliver the record of proceedings. Counsel for the applicant

contended that the applicant indicated in the notice ofappeal that she intended to file the memorandum of appeal upon receipt of the certitled copy of the record ofproceedings. Counsel also contended that the delay in filing the memorandum of appeal was occasioned by the delay in receiving the record of proceedings.

- t38] Much as rule 36 of the Parliamentary Elections (lnterim Provisions) (Election Petitions) Rules permits the application of civil procedure rules to election petition appeals to this court with such modifications as the court rnay consider necessary in the interests ofjustice and expedition ol proceedings, the preponderance ofauthority is that rule 83 (2) ofthe rules ofthis court is not applicable to election petition appeals. - [3e] In Paul Omara v Acon Julius Bua and 3 others Election Petition Aooeal Miscellaneous Application No. 346 ol20l6 ( unreported), Kakuru, JA stated:

'Rule 3l requires an intended appellant to lodge with the registrar of this court a record of appeal u ith 30 days of filing ofthe memorandum ol'appeal. 1'his procedure lundamenlalll' diff'ers lrom lhat set out under Rule 83 of the Court ot'Appeal Rules which stipulates as lbllows:- 83. lnstitution of appeals. (l) Subject to rule I l3 of these Rules, an appeal shall be instituted in the court by lodging in the registry, within sixty days after the date when the notice of appeal \* as lodged- (a) a memorandum of appeal, in six copies, or as the registrar shall direct; (b) the record of appeal, in six copies, or as the registrar shall direct; (c) the prescribed fee; and (d) security for the costs of the appeal. (2) Where an application for a copy of the proceedings in the High

Court has been made within thirty days after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the High Court as having been required for the preparation and delivery to the appellant of that copy. (3) An appellant shall not be entitled to rely on sub rule (2) of this rule, unless his or her application for the copy was in writing and a copy of it was served on the respondcnt, and the appellant has

retained proof of that service.

As clcarly set out in the Rule 83 of thc Court ol'Appcal Rules an intended appellant uho applies tbr a copy ol' I{igh Court proceedings within 30 day's of Judgement is grantcd a consequenlial extension ol'time until the t{igh Court has prcpared and delivcred to tho appellant a copy of cortifled I ligh Court record. Befbrc then time to file a record of appe'al does not begin to run. Again under Rule 83(l) ofthe Court ol'Appeal Rules an intending appellant must llle a memorandum of appeal togelher with the record ofappcal. This is not so under the elecloral lar.r as set out abovc in respcct of clcction pctitions.

In an election appeal a memorandum ol appeal is filed separately from the record and ditterent time fiames are set by law for the tiling the memorandum olappeal and fbr lodging a record ol'appeal. My humble understanding ofthe electoral law in this regard is that no consequential extension of time is provided lbr both the Iiling of thc memorandum ofappeal and record ofappeal. Each ol' these documcnts must be prepared and filed within thc time prescribed by the electoral set out above.'

[40] Further, this court in Kubeketerya v Waira Kyenalabye & Anor [2017] UGCA 107 stated:

'lt is conceded by the appellant that he f'ailed to comply with lhe above provisions. However. he appears to rely on Rule 83 of the Rules of this Court. which grants an automatic exlension of time. The question as to whether Rule 83 of the Rules of'this Court is applicable to Parliamentary election petition matters has been considered and determined by this Court in a number of petitions similar to this one betbre us.

In Kasibante Moses Vs Katongole Singh Marwaha, Court ol Appeal Election Petition Application No. 8 of 2012. stated as tbllows at page l2- l 3;-

'At any rate the rules of procedure dealing u'ith election litigation have no provision with writing of letters requesting fbr record of proceedings and the exclusion ol the period spent on compiling the record liom computalion olthe time within which to file the appeal. To allow an intending appellant to take his or her time to tile the record ofappeal outside the time set by the rules without exceptional circumstances being shown would defeat thc purpose ol'the time liame provided in the Conslitution, the Parliamentary Elections Act and the rules made there under Ibr the expeditious disposal ofelections matters. 'fhe respondent in his at-fidavit did not state the dales when he visited the civil registry and he did not give the names or names olthe oflicer who gave him information that the record ofproceedings was not ready to write letters and sit back without being vigilant, The registry stal1, in our view, has no interest whether or not an intending appellant liles the appeal within the time allowed by the rules.

Rule 83 of the Rules olthis Court is applicable only in respect of Local Council Elections and not in Parliamenlary election petitions. See: Wanyama Gilbert Mackmot Vs Hisa Albert and Electoral Commission, Court ofAppeal Election Petition No. 99 of20l6. ( lJnreported )'

Page l5 of 31

- [ l] No reason has been advanced to convince me that the foregoing interpretation of the law should be departed from. - [42] Secondly, it is clear that the Constitution, The Parliamentary Elections Act and the Rules made thereunder have introduced a statutory and procedural scheme that must ensure that election petition appeals are heard and determined within 6 months of filing, as part of that scheme set certain time lines that parties and the court ought to comply with. This scheme is dramatically different from that available for ordinary appeals. Even ifthe rules of this court in relation to ordinary appeals to this court applied it is with such modification and adaptations to fit in with the new scheme, not vlce versa. - t43] The applicant in this matter decided to ignore the scheme provided for election petition appeals and write his own rules aligned to the rules of this couft for ordinary appeals. ln doing so the applicant was in grave error. - [44] The only ground in the multitude of grounds raised by the applicant that explains the actual position of the applicant is (v) states,

'l'he noticc of'appeal clearly cast that the grounds of Appeal shall be tbrmulated and lodged lbllowing the receipt of'the typed proceedings fiom the High Court at Mbale .'

- t45l This applicant chose to set his own rules that he would follow, contrary to the Parliamentary Elections (lnterim Provisions) (Election Petition) Rules. Such an approach is simply wrong and unlawful. - [46] The applicant does not have the luxury of opting to file the memorandutn ofappeal upon receiving the certified copy ofthe proceedings. Rule 30 (b) of the Parliamentary Elections (lnterim Provisions) (Election Petitions) Rules is mandatory.

- [47] There is no justification to validate the memorandum of appeal flled out of time, and consequently there is no appeal before this court. - [48] Rule (2) of the Parliamentary Elections (Election Petitions) (Production ol Records of Appeals) Directions, S I l4 I -4 mandates the trial court to ensure that the record ofproceedings is typed and produced in time tbr the expeditious production of the record of appeal. Where the High Cour-t fails in its duty to produce the record ofproceedings in time as required by the aforesaid rules it would be possible in my view for this court to allow an applicant extension of time to file the record of proceedings. However, the court would have to bear in mind the overall statutory scheme for hearing of election petitions and determining them in a very limited period. - [49] Notwithstanding the foregoing, for purposes of this application, the lact that the applicant had f'ailed, without any justification, in complying with an earlier step of filing the memorandum of appeal, this point is rendered moot, as there is no appeal before this court. - [50] I am satisfied that the applicant, deliberately, did not take a necessary step to ensure that the appeal is lodged in time. I find that there is no suftlcient cause for extension of time. - [5 I] I would dismiss this application for lack of merit.

## Election Petition Appeal Application No.8 of 2022

## Introduction

[52] This application was instituted by respondent no.2 against the applicant under rule 2(2), rule0. 43( I ) and (2), rule 82 of the Judicature (Court of Appeal Rules) Directions and rules 30 and 3l of the Parliamentary Election (lnterirn Provision) (Election Petitions) rules. Respondent no.2 sought an order that the notice ofappeal, memorandum ofappeal and record of appeal be struck out.

t53] The grounds for the application were set out in the notice of motion as fo llows:

> 'a) That the Respondent's purported appeal offends the rules of this court. the provisions ofthe Parliamentary Elections Act and the rules made thereunder tbr tailure to take essential and necessary steps in filing, serving and prosecuting lhe appeal and the same is as such incompetent, bad in law and baned by law. b) That the Respondent lailed to flle and serve a Memorandum of Appeal within the time prescribed by law. c) That the Respondent lailed to file and serve a Record of Appeal within the prescribed time by law. d) l'hat it is in the interest ofjustice that the application is granted.'

t54] Mr. Okiror Morris Andrew, counsel for the applicant swore an af'fidavit in reply to the application. The grounds in opposition to the application as deduced from the affidavit were:

> '4. That the Notice ofAppeal and letter requesting tbr typed proceedings was filed with the Court of Appeal on 28th october. 2021 and served on the Applicant herein on 29th October. A copy of the duly served nolice of appeal and letter requesting fbr a typed record ofproceedings are altachcd hereto marked "A" and "B" respectively. 5. 'l-hat the notice of appeal clearly reflected thal the appellant (respondent herein) would file her memorandum of appeal atler receiving the typed record of proceedings fiom the trial court.

6. T'hat we retained prool of service on the Applicant of the notice of appeal and the letter requesting fbr a typed record of proceedings. A copy ol'the allldavit of service is atlached hereto marked "C".

7. 'l hal the respondent has duly complied with provisions ol'the law regarding lhe necessary steps required to be taken in the pursuit ofan intended appeal. 8. That the Judgment in Election Petition No.6 of'202 I was delivered by thc trial Judge at her primary station being the Land Division at Kampala.

9. That there were unavoidable delays in the preparalion of the typed record ofproceedings occasioned by the fact that the main llle in Eleclion Petition No. 6 ol'2021 had to be olficially moved fiom Kampala and retumed to Mbale High Court.

10. That this task olmoving the lile could only be executed by the Judiciary staff which further prolonged the delays.

I I . That after a draft of the record of proceedings was typed. the same had to be retumed for the perusal and approval of the trial judge who had now been transferred to the Commercial Division.

I2. That the certified typed record of proceedings was only made ready on the 21" day of December, 202 t during the Christmas break. A copy of the certilled record of proceedings is attached hereto marked "Dl".

13. Thal the same was only received by our office on the 271h day of December. 2021 due to the closure of the Registry at Mbale and the Christmas holiday.

14. That the proceedings/rulings made prior to scheduling by the learned trial Judge during the hearing ofthe Election petition were pertinent to the prosecution of the Appeal by the respondent hence the necessity for the securing the certitled lyped record ol proceedings fiom the trial court.'

#### Submissions of Counsel

- [55] At the hearing, the applicant was represented by Mr. Elijah Enyimu and Mr. Okiror Morris and respondent no.2 was represented by Mr. Ambrose Tebyasa, Mr. Evans Ochieng and Ms. Sandra Vicensia Namigadde. The parties opted to rely on their written submissions on record. - [56] I have considered the submissions filed by counsel for the applicant and respondent no.2. Both counsel more or less reiterated their submissions in

PaBe 19 of 31

Election Application Petition No. l4 of 2022. lt is therefore not necessary to reproduce the same submissions here.

### Analysis

[57] Rule 82 of the Rules of this Court provides:

'82. Application to strike out notice ofappeal or appeal. A person on whom a notice of appeal has been served may at any time, either belbre or afler the institution ofthe appeal. apply to the court to strike out the notice or 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.'

- [58] This rule permits an applicant who has been served with a notice of appeal to move court to strike out an appeal or notice ofappeal where the intending appellant has not taken an essential step in the proceedings within the prescribed time as in this instant case. I have already established in Election Petition Application No. l4 of 2022 that the applicant failed to file the memorandurn of appeal in time. That is sufficient ground to strike out the appeal. - t59] I would therefore allow this application and strike out the appeal with costs.

# Election Petition Appeal Application No. ll of 2022

[60] In light of the finding in Election Petition Applications No. l4 of 2022 and no. 8 of2022, it is not necessary to consider this application, as there is no appeal for which additional evidence can be called' However, for the beneflt ofthe applicant and his counsel that brought this application, I wilt consider the grounds he set forth.

[61] The applicant filed Election Petition Application No. I I of 2022 seeking to adduce additional evidence for the purpose of hearing Election Petition Appeal No. 84 of2022. The grounds for the application were set out as follows:

> 'i. The intended additional evidence was not available to the trial Judge during the adjudication of Mbale Election Petition No. 6 of 2021 .

ii. The intended additional evidence is credible. material and relevant to the issues in Election Appeal No.84 ol 2021.

iii. The additional evidence shall enable this Honorable Court to arrive at a balanced, fair and just decision. iv. The respondents will not sut'ter any injustice or prejudice if the application is granted.

v. That this Application has been brought without undue delay.

vi. It is in the interesl of substantive justice lhat this application be granted to enable court examine the issues in contention.'

[62] The applicant contended in paragraph 4-9 in her affidavit in support ofthe motion that:

> '4. That my lbrmer lawyers that prepared the Election Petition documents erroneously and negligently omitted to include the back pages of the Declaration of Result lbrms when compiling the Petition and supporting alfidavit. 5. That as a result the same were llled with one sided faces of the Declaration of Results tbrms relied on at the hearing of the election petition.

> 6. That at the preliminary mention my counsel sought leave to llle a supplemcntary trial bundle with the complete Declaration ol'Results lbrms which was opposed by the l" respondent's counsel.

7. That the trial Judge also declined to grant me the leave to present the complete declaration ofresult fbrms citing no new evidence will be allowed.

8. That this evidence could not be produced a1 the time of the petition in light ofthe Judge's ruling on my counsel's request.

9. That the trial court went ahead to make its findings without having the benefit olexamining the back pages ol the said declaration of result fbrms which were not available lo the trial iudge.'

[63] The respondents opposed the application' Kugonza Enoch, the principal legal officer for respondent no. I swore an affidavit in reply to the application on behalfof respondent no. I and respondent no.2 also swore an affidavit in reply in opposition to the application'

## Submissions of Counsel

- [64] At the hearing of the application, the applicant was represented by Mr' Elijah Enyimu and Mr. okiror Morris, respondent no. I was represented by Mr. Jude Mwase and respondent no.2 was represented by Mr' Ochieng Evans, Mr. Ambrose Tebyasa and Ms. Namigadde Vicensia Sandra' The pafties opted to adopt their written submissions on record' - I6sl Learned counsel for the applicant stated the principles and conditions upon which an appellate court can exercise its discretion to allow an application for adducing additional evidence as was stated in Kawooya v National Council for Hicher Education I2014] UGSC 132. Counsel submitted that the application satisfied all the conditions stated therein. Counsel for the applicant submitted that the applicant has new and important matters of evidence that could not be produced at the time of trial due to the circumstances she stated in paragraphs 4 to 9 of the afhdavit in support' counsel for the applicant contended that the evidence sought to be adduced is relevant to the issues in the appeal because the declaration of result fbrms sought to be adduced as additionat evidence are relevant in proving the election offences and malpractices which are the subject of the appeal. - [66] Counsel for the applicant contended that the complete declaration ofresults forms are credible since they are the original documents issued to the

applicant's polling agents during the voting process. Council contended that since one ofthe grounds ofappeal relates to wrong results or altered results on the declaration of results fbrms, the complete forms with the back side attached will have an influence on the determination of the election petition appeal. Counsel for the applicant submitted that annexure 'C'attached to the affldavit in support of the application constitutes the additional evidence that the applicant is seeking to adduce.

- [67] Counsel for the applicant further submitted that the application was brought without unreasonable delay. The application could only be filed afier 7'r' January 2022 when the record ofappeal had been filed and it was filed before the summons to appear for conferencing were issued on l0'l' February 2022in the appeal. The applicant prayed that this court grants the application since it is in the interest ofjustice ofhaving a balanced, fair and just decision in determining of the appeal. - [68] In reply, counsel for respondent no. I submitted that the applicant has not demonstrated any credible reason fbr grant ofthe leave sought. Counsel contended that the applicant did not change her lawyers since inception of the petition as alleged. The applicant and her lawyers neglected to photocopy both sides of the declaration of results forms that were in their possession as primary evidence during the preparation of the petition hence they cannot be claimed as new matters ofevidence on appeal. - [69] Counsel contended that the intended additional evidence is immaterial to the appeal since the issues to be resolved by this court revolve around the allegations of alteration, multiple voting, forgery and making wrong retums. counsel for respondent no.l contended that the applicant does not need the back pages of the declaration of results forms to prove her allegations since all relevant information to do with figures is found at the top face of the declaration form which is on record. Counsel for respondent no. I submitted that even if the documents were relevant to the case. respondent no. I's alfidavits in support ofthe answer to the petition contained certified double faced copies of all declaration of results forms being questioned by the applicant.

- [70] Counsel further submitted that the intended additional evidence is not credible because the applicant has not demonstrated that the forms originated from the Electoral Commission. There is no correlation between the top page and the purported back page ofthe declaration forms since they are separate. counsel submitted that in the absence ofthe original which is a single double faced form or one duly certified by respondent no. l, the two separate two-page declaration forms cannot be relied upon. Counsel for respondent no.l further submitted that it is trite law that public documents can only be proved by production ofthe original or certified copies which the applicant has not done. Counsel relied on sections 73 and 76of the Evidence Act and also submitted that presenting two separate pages ofa declaration form may risk the top and back pages being rn ismatched. - [71] Counsel for respondent no' I submitted that during the scheduling conference, leave was granted to the applicant's lawyers to certify all documents originating from the Electoral commission which included copies of the declaration ofresults forms in issue but the applicant elected to certify only packing lists that were adduced as additional evidence. - [72] Counsel for respondent no.2 reiterated the position of the law in Kawooya v National Council for Hieher Education (supra) and contended that the applicant had not demonstrated any sufficient reason for the grant ofthe application. Counsel contended that the evidence that the applicant seeks to adduce is not new as it was in possession of the applicant and her lawyers, afact that the applicant admitted to in paragraphs 6, 7 and 8 ofher affidavit in support of the aPPlication. - [73] Counsel contended that the applicant never sought leave ofcourt to file the complete declaration of results forms as alleged. Counsel ref'erred to the evidence on page 314 of the record proceedings to support this submission. Counsel contended that it was not negligence ofcounsel but it was a deliberate move by the applicant to file an incomplete declaration of results lamu Eqondi fbrms. Counsel for respondent relied on Hadondi Daniel v Yo

Court ofAppeal Civil Aooeal No.67 of2003 (unreported) and Mohammad B. Kasasa v Jasphar Buyons,a Sirasi Bwogi t20091 UGCA 44

- [74] Counset for respondent no.2 contended that the proceedings that the applicant attached to the application show that the applicant sought leave to flle the national voters' register for Kapkoloswa, Kaptererwa and Kapsarur in Kapnandi town council and also be allowed to number the pages of the petition. Counsel submitted that the trial court in its ruling granted leave to the applicant to file complete certified copies of documents attached but the applicant ignored the order. - [75] Counsel for respondent no.2 submitted that the applicant ought to have appealed against the ruling ofthe trial court if it were true that she indeed made the application instead of making an application to admit what the trial judge initially rejected. Counsel submitted that complete records of the declaration of results forms were produced by respondent no. I and admitted in evidence as exhibits and were analysed by the trial court in the determination of the appeal. - [76] Counsel for respondent no.2 further contended that the documents that the applicant intends to adduce into evidence as additional evidence are not credible because they are uncertified public documents. Counsel averred that the applicant has failed to prove to court how the admission of the additional evidence will influence the results of the case. Counsel contended that declaration of results forms is not evidence of mal practice in the absence of proof of alteration of results by relevant cogent, credible and independent evidence. Counsel for respondent no.2 further submitted that the applicant has failed to prove that the application was expeditiously filed in court because the applicant filed the application four months after the judgment was passed upon realising that respondent no.2 had applied to strike out the appeal. - [77] Counsel for the respondents prayed that this court dismisses the appeal with costs tbr lack of merit.

### A na lysis

[78] This application is brought under rule 2 (2), rule 30 (l) (b)' rule 43 (l ) and (2) of the Judicature (Court of Appeal Rules) Directions. Rule 30 ( I ) (b) vests in this court discretionary power to grant an application for adducing additional evidence. It states:

> '30. Power to reappraise evidence and to take additional evidence.

('l ) On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may-

(a) reappraise the evidence and draw inlbrences of t'act; and

(b) in its discretion, for sufficient reason, take additional evidence or direct that additional evidence be taken by the trial court or by a commissioner'

17e) In Attorney General v Paul K Ssemo qerere and Ors 12004 UGSC 3, the Supreme Court laid down the principles upon which courts should take consideration for the grant of an application fbr adducing additional evidence. It stated: I

> '-fhere are no authorities on what principlcs or conditions this Court may

allou an application such as the prcsent. but our opinion is thar authorities or decided cases which are relcvant to this Court's discretion to admit additional evidence on appeals to it do provide useful guidance ftrr that purposc. and are of'persuasive value. We have in mind: Ladd Vs Mashall (1954) 3 All ER 745 at 148 Skone Vs Skone (1971),2 All ER 582 at 586; Langdale Vs Danby (1982) 3 ALL ER. 129 at 137; Sadrudin Shariff Vs Tarlochan Singh (1961) EA.72, Elgood Vs Regina (1968) 8A274; American Express International Vs Atulkimar S. Patel' Application No.8B, of l9E6 (SCU) (unreported); Karmali Vs Lakhani (1958), E,A'567 and Corbett (r953),2 ALL ER, 69.

)

A summary ol'these authorities is that an appellate courl may exercise its discretion to admit additional evidence only in cxceptional circumstances, which include:

(i) Discovery of new and important matters of evidence which, after the exercise of due diligence, was not within the knowledge of, or could not have been produced at the time ofthe suit or petition by, the party seeking to adduce the additional evidence:

(ii) It must be evidence relevant to the issues;

(iii) It must be evidence which is credible in the sense that it is capable ol beliefl

(iv) The evidence must be such that. if given. it would probably have inlluence on the result ofthe case, although it need not be decisive:

(v) The affidavit in support ofan application to admit additional evidence should have attached to it. proof of the evidence sought to be given;

(vi) The application to admit additional evidence must be brought without undue delay.

These have remained the stand taken by the courts, fbr obvious reasons that there would be no end to litigation unless a courl can expect a party to put its full case before the cou(. We must stress that fbr the same reason, courts should be even more stringent to allow a party to adduce additional evidence to re-open a case, which has already been completed on appeal.'

[80] The appticant seeks leave to adduce copies ofback pages of the declaration of result forms attached to her affidavit in support of the application and marked as annexure 'C'. The applicant contended that her former lawyers negligently omitted to include the back pages ofthe declaration ofresults

Page 27 ol tL forms while compiling the petition and the supporting affidavits' Counsel for the applicant averred that the applicant sought leave to flle a supplementary trial bundle with the said documents but the trial court declined to grant the leave. At the same time counsel for the applicant alleged in the grounds of the application that the documents were not available to the applicant at the time of hearing the election petition which is fhlse.

[81] It is not true that the applicant sought to adduce the additional evidence at the preliminary hearing ofthe application. The record ofproceedings of l8r1'August 2021 is clear on what transpired in court. The relevant part of the proceedings at page 3 ofthe record of proceedings states as follows:

## 'Envimu:

We want 1o invoke Court under Order l0 R. 2(a) for receiving fiom the I'r Respondent for the National Voter Registration lbr Kapkolosaw Stadium. We also pray for the party lost [sic] lbr Kapteremo and Kapsarur and Kapnandi T. C. We need to get copies to rely on and pray for leave to file asupplementary Triat bundle once availed by the l" Respondent.

We will also seek to number the pages of our petition during marking of the documents.

#### Oiok:

I am holding brief tbr Counsel Tebyasa. The prayers by Counsel lbr Petitioner go to Rules of Evidence and Prejudice the 2nd Respondent. The Pleadings have been filed and will need as to further respond

#### Mwase:

The pleadings closed the matter as for scheduling otherwise we will keep on re-opening the Petition.

#### Court:

ln the circumstances no new evidence ofdiscovery will be allowed since i1 will re-open the petition and prejudice the Respondent's case.

However being a Public inlerest matter the documents on the Petition attached and alleged to be from the Electoral

Commission should be certified to conlirm to the rules of' evidence and avoid descending into technicalities that do not address the root of the matter. Accordingly the prayer [br supplementing Trial Bundle is denied and Electoral Commission direcled to confirm the documents that fall under their stalutory mandate. Parties to lile a signed memorandum of f'acts agreed and issues on 30108121 and appear in Court on 3 I /08/2 I at 9:00 a.m. tirr scheduling and getting schedules for liling written submissions.'

- [82] As seen above, the leamed trial judge directed the parties to certify the documents already attached to the petition alleged to emanate from the Electoral Commission but the applicant did not certify the declaration ol results forms. During the joint scheduling conference, counsel for the applicant indicated at page 48 ofthe record ofappeal that they do not agree with the Electoral Commission's certified results thus produced uncertified copies of the documents. The documents were not admitted into evidence but marked as PID with a corresponding number. These included the front pages ofthe back pages ofthe declaration forms that the applicant seeks to adduce as additional evidence. The front pages ofthe declaration of results forms being uncertified copies of public documents are already of no evidential value in light of section73,75 and 76 of the Evidence Act. It is pointless to allow the applicant to adduce the back pages ofthe uncertifled copies of the declaration of results forms since they would not also have any evidential value as they cannot be relied upon by court. - [83] The applicant may blame her former lawyers for omitting to include the back pages of the declaration of result forms when compiling the petition and the supporting affidavits because the applicant and her counsel were aware of the omission throughout the trial. The applicant did not bother to rectify the matter when ordered to file certified copies from the Electoral Commission. At page 315 of the record of appeal, respondent no. I raised this issue in its affidavit in support to the answer to the petition deponed by Msika Elijah Ndinyo in paragraph 9 but the applicant did not take the necessary steps to rectify the issue. Besides, a copy of the complete

Page 29 of 31

certified declaration of results forms was adduced by respondent no.l in evidence and is on record.

- t84l Lastly it must be pointed out the evidence sought to be adduced in this court has all along been in the hands ofthe applicant and her counsel. lt has just not been discovered. The failure to produce it in the trial court was negligent conduct ofthe applicant's counsel. And that is not sufficient reason to allow an applicant adduce additional evidence on appeal. - [85] ln Mohammad B. Kasasa v Jasphar Buyonga Sirasi Bwogi (supra), this court stated:

'A client is bound by the aclions of his counsel. Negligently drafting the plaint or incompetence in doing the same is not an excuse tbr a client to escape being bound by his counsel's aclion. See : Cant. Phi lin Ons0m Vs Ca thcrine )iverrt ( ir il ,\ppeal No.l4 ol200l SC (unreported) and Handon l)aniel Vs Yolrmu Esondi (supra).'

t86l I flnd no sufflcient reason for the grant ofthe application. I would therefore dismiss the application with costs for lack of merit.

## Decision

- t87l As Madrama and Luswata, JJA, agree, Election Petition Appeal App No. l4 of 2022 is dismissed with costs. - t88l As Madrama and Luswata, JJA, agree, Election Petition Appeal App No. OB of 2022 is allowed with costs. Election Petition Appeal No. 84 of 202 I is accordingly struck out with costs. - [89] As Madrama and Luswata, JJA, agree, Election Petition Appeal App No. I I of 2022 is moot and is struck out with costs.

Signed, dated and delivered at Kampala this day of

2022.

edrick Egonda-Ntende **Justice of Appeal**

Page **31** of **31**

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[*Coram: Egonda-Ntende, Madrama & Kawuma Luswata, JJA*]

# ELECTION PETITION APPEAL APPLICATIONS NO. 11 OF 2022, 08 OF 2022 & 14 OF 2022

(Arising from Election Petition Appeal No. 84 of 2021)

(Arising from Election Petition No. 006 of 2021)

## **BETWEEN**

$\equiv$ Applicant /Respondent Tete Chelengat Everline $==$

## AND

Electoral Commission = $=$ Respondent No.1

Chemutai Everlyn= =Respondent No.2/Applicant

## RULING OF EVA K. LUSWATA, JA

- I have had the opportunity to read in draft the rulings of my brother, Egonda-Ntende, $[1]$ JA. I do agree with his findings, and decision and have nothing to add. - I would dismiss Election Petition Application No. 14/2022 with costs for lack of $[2]$ merit. - I would allow Election Petition Application No. 08/2022 to strike out Election $[3]$ Petition Appeal No. 84 of 2021 with costs. - I would dismiss Election Petition Application No. 11/2022 with costs for lack of $[4]$ merit.

Dated, signed and delivered at Kampala this $\%$ day of

Eva K. Luswata **Justice of Appeal**

# THE REPUBLIC OF UGANDA,

# IN TI{E COURT OF APPEAL OF UGANDA AT KAMPALA

# (CORAM: EGONDA NTENDE, MADRAMA AND LUSWATA JJA)

# ELECTION PETITION APPEAL APPLICATIONS NO II OF 2022,08 OF 2022 AND t4 0F 2022

# (Arising from Election Petition Appeat No 84 of 2021)

(Arising from High Court Election No 006 ot 2021)

BETWEEN

APPLICANT/RESPONDENT TETE CHELENGAT EVERLINE}

# AND

- r. ELECToRAL CoMMTSSToN) RESPONDENT NO I - 2. CHEMUTAI EVERLYN.... .. RESPONDENT NO 2/APPLICANT

# RULING OF CHRISTOPHER MADRAMA, JA

I have had the benefit of reading in draft the ruting of my learned brother Hon. Mr. Justice Frederick Egonda - Ntende, JA in Etection Appeat Apptication No. 14 of 2022, dismissing the apptication for extension of time for [ack of merit.

Secondly, I have also read the ruling of my learned brother Hon. Mr. Justice Frederick Egonda - Ntende, JA in Etection Appeat Apptication No. 08 of 2022 altowing the apptication to strike out the appeal with costs.

Thirdty lhave read the ruling of my [earned brother Hon. Mr. Justice Frederick Egonda - Ntende, JA in Etection Appeat Apptication No.ll of 2022 dismissing the apptication with costs.

lagree with atl the above rulings and orders for the reasons given in the three rulings and I have nothing usefuI to add.

| Dated at Kampala the | day of | 2022 | |----------------------|--------|------| | Christopher Madrama | | |

$\mathcal{L}_{\mathcal{A}}$

$\qquad \qquad \textbf{Justice of Appeal}\\$