Tumwesigye and Another v Mugyenyi (Miscellaneous Application 170 of 2019) [2025] UGCA 112 (25 April 2025)

# THE REPUBLIC OF UGANDA

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

(Buteera DCJ, Obura and Khika. JJA)

#### MISCELLANEOUS APPLICATION NO, 170 OF 2019

(Arising lrom Election Petition No 001 of 2018)

## 1. HON. DR. ELIODATUMWESIGYE

2. ELECTORALCOMMISSION APPLICANTS

#### VERSUS

PLAN VIRGINIA MUGYENYI RESPONDENT

## RULING OF THE COURT

#### 15

This application was brought under Rules 2 (2),82,43(1) and 44 of the Judicature (Court of Appeal Rules) Directions Sl 13-10. lt is seeking for orders that the Notice of Appeal filed by the Respondents be struck out and costs be provided for.

The application arises from a decision of Mbarara High Court made on 28th February,20'19 in Election Petition No. 001 of 2018 in which the court dismissed the Petition with costs. Being dissatisfied with the decision, the Respondent filed a Notice of Appeal on 6th March, 2019 which was served on the Applicants. However, the respondent did not take further steps by filing the Memorandum of Appeal and the Record of Appeal. On 30tn May, 2019 the Applicants filed this application by Notice of Motion seeking for an order to strike out the Notice of Appeal. 20

- The grounds upon which this application is premised are elaborated in the affidavit in support of the application deposed by the 1sr Applicant on 30th May 2019. They are briefly as follows; - (1) The Respondent has failed to take necessary steps ln time to prosecute the Appeal as required by law


- (2) The Respondent has faited to lodge a Memorandum ol Appeal and the Record of Appeal with lhe Registrar in time as requied by law. - tt is fair, just and equitable that the Notice of Appeal lodged by the Respondent be struck out w,th cosls. (3)

The respondent did not file an affidavit in reply.

## Representation

At the hearing of the application Counsel Stuart Mwijuka holding brief for Counsel Ntambirweki Kandeebe appeared for the Applicants. Neither the Respondent nor her Counsel was in court. However, both parties had filed their respective written submissions prior to the hearing date which have been adopted and considered in this ruling.

## Applicants'Case

Counsel submitted that the Respondent was served several times through her lawyer by the court's process server but she never bothered to reply or file the appeal as required by law.

15 He argued that the Respondent was required under rules 30 and 31 of the Parliamentary Elections (lnterim Provisions) Rules, S.l. 141-2 to file a Memorandum of Appeal and Record ofAppeal within 7 days and 30 days respectively but she did not.

Counsel therefore prayed that the Respondent having failed to take an essential step of filing the required documents within the prescribed timelines, the Notice of Appeal be struck out.

20 25 To support his submissions, counsel relied on Kasibante Moses vs Electoral Commission, Election Petition Application No. 7 of 2012where this Court skuck out the Notice of Appeal that was filed one day out of time with costs. He also relied on Mayende vs Ochieng Peter Patrick, Election Petition Application No.33 of 2012where this Court emphasized that in election matters time is of the essence and so the intending Appellant has a higher duty to act expeditiously to pursue every step of the appeal so that the appeal is disposed of quickly.


### Respondent's Case

Counsel submitted that they were only served with the Applicants'written submission without the application to which they relate. He submitted that the Respondent was desirous of filing her appeal and having filed a Notice of Appeal, she requested for a copy of the decision and the proceedings which she never received. Counsel contended that in the absence ofthese documents, the Respondent was unable to institute her appeal and in the process the time prescribed for doing so lapsed.

Counsel argued that the Applicants unnecessarily filed this application in the hope of extorting costs from the Respondent well knowing that the Notice of Appeal had been overtaken by

events. He conceded that the Notice of Appeal be skuck out but prayed that each party should bear his/her own costs. 10

#### Rejoinder

ln rejoinder counsel for the Applicant submitted that this application was served on the Respondent by the process server of this Court together with the hearing nolices. He asserted that this application was necessary and was not filed with the hope of extorting costs from the Respondent as contended by her counsel. He reiterated his earlier prayer that the Notice of Appeal be struck out with costs 15

## Court's Finding and Decision

We note that this application was brought, inter alia, under Rule 82 of the Judicature (Court of Appeal Rules) Directions Sl 13-10 which provides as follows; 20

> '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 coul to strike out the notice or the appeal, as the case may be, on the ground that no appeal lies or that some essentla/ step in the proceedings has not been taken or has not been taken within the prescibed time.'



ln lltex tndustries Ltd vs Attorney General, SCCA lJo.52 of 1995, the Supreme Cou( elaborated on what'taking an essential steps' means. lt stated thus;

'Taking an essentla/ slep is the peiormance of an act by a paty whose duty is to peform that fundamentally necessary action demanded by the legal prccess, so that subiect to permission by coufi, if the action is not peformed by law prescibed, then whatever legal process has been done before becomes a nullity, as against the paly who has the duty to peform that act'.

## Also see: Andrew Maviri vs Jomayi Propefi Consultanfs Ltd, (supra); Bakaluba Mukasa Peter & another vs Nalugo Mary Margret Sekiziyivu, CA Election Petition Application No.24 of 2011. 10

ln the instant application, the decision sought to be appealed against was delivered on 28th February 2019 and the Respondentfiled a Notice ofAppeal on 6th March,2019 which was within the prescribed time. We note that thereafter, the Respondent did not take any further step regarding her appeal. ln his submission, her counsel conceded that the Respondent did

proceed with her appeal and the time prescribed for doing so lapsed. He however explained that the delay to take further steps by the Respondent was occasioned by the failure of the lower court to provide a copy of the decision and proceedings in the petition. 15

This application arises from a parliamentary election petition. Article 140 of the Constitution and sections 82(2) and 85 (2) of the Parliamentary Elections Act and the Parliamentary

Election (lnterim Provisions) Rules, S.l. 141-2 enjoin the parties involved and the courts to expeditiously dispose of election matters. The timelines for filing appeals in this Court are clearly outlined under rules 29, 30 and 31 of the Parliamentary Elections (lnterim Provisions) Rules, S.l. 141-2. Under rule 29, a Notice of Appeal can either be given orally at the time the judgment is given or in writing within seven days after the judgment of the High Court against 20

which the appeal is being made, Under rule 30(b), in a case where a written Notice of Appeal 25


has been given like in this case, the Memorandum of Appeal has to befiled within seven days after the Notice of Appeal was given. Under rule 31 , the Record of Appeal is required to be lodged within 30 days afler the filing of the Memorandum of Appeal.

5 It was the duty of the Respondent to take the necessary steps within the above prescribed time, which duty she abdicated. The excuse given by her counsel that the Respondent could not file the appeal in the absence of the lower court proceedings and decision is misguided and unfounded given the above clear provisions of the Rules that govern appeals to this Court arising from parliamentary election petitions. This Court held in Bakaluba Mukasa Peter & Another vs Nalugo Mary Margret Sekiziyivu, Election Petition Application No.24 of 2011 that: 10

> 'Delay in taking the right step in litigation at the ight time hrnders successfu/ pailies from enioying the fruits ol their judgenent which was obtained in their favor.'

Rule 82 makes provision for striking out a Notice of Appeal if no appeal lies or where an essential step has not been taken. Since it is conceded by the Respondent that she did not

take an essential step to file a Memorandum of Appeal and Record of Appeal within the prescribed time, it follows that the Notice of Appeal should be struck out as it is not serving any purpose. 15

Regarding costs, counsel for the Respondent contended that it would be unfair to impose costs on the Respondent and he prayed that each party bears his/her own costs. Rule 84 is

instructive on this issue. Tt provides as follows; 20

#### "81. Elfect of default in instituting appeal

lf a paly who has lodged a notice of appeal fails to institute an appeal within the prescribed time- (a)he or she shall be taken to have withdrawn his or her notice of appeal and shall, unless the court othemise orders, be liabte to pay the costs arising from it of any persons on whom the notice of appeal was serued." <sup>5</sup> &


Section 27 (1)of the Civil Procedure Act vests very wide discretion in court to exercise its discretion to award costs. lt provides as follows;

'Provided that the costs of any action, cause or other matter or issue shall follow the event unless the couft or iudqe shall fot aood reason otheryvise order "lemphasis is added).

- <sup>5</sup> As we have earlier found, it was the duty of the intending Respondent to take the necessary steps within the time prescribed by law. We have not found any good reason advanced by the Respondent for her failure to do so. She should have withdrawn the Notice of Appeal and avoided this applicatlon with the attendant costs. We therefore cannot deprive the applicants who incuned expenses offiling and prosecuting this application from recovering the costs. - 10 ln the premises, we allowthis application and accordinglystrike outthe Notice of Appeal that was filed by the respondent with costs to the applicants.

We so order.

Dated at Kampala this .+n^ dry.f... Afh").,,,,,2025

Richard Buteera

## DEPUTY CHIEF JUSTICE

Hellen Obura

## JUSTICE OF APPEAL

John Oscar Kihika

JUSTICE OF APPEAL