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Kiviri Tumwehe v Mubiru (Election Petition Application No. 30 of 2022) [2022] UGCA 117 (21 March 2022)
- Citation
- [2022] UGCA 117
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- Court of Appeal of Uganda
- Panel
- Kiryabwire, JA, Musota, JA, Gashirabake, JA
- Case number
- Election Petition Application No. 30 of 2022
- Language
- English
More details
- Court
- Court of Appeal of Uganda
- Panel
- Kiryabwire, JA, Musota, JA, Gashirabake, JA
- Case number
- Election Petition Application No. 30 of 2022
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the respondent failed to take an essential procedural step by not applying for the record of proceedings as required under the Court of Appeal Rules. There was no evidence of any attempt to institute the appeal within the prescribed time, and the respondent's counsel had withdrawn without leave. The respondent also indicated to the process server that the matter had been settled out of court, further evidencing lack of interest in pursuing the appeal. The court held that the matter had become moot and, in accordance with the relevant rules, deemed the appeal withdrawn and struck out the notice of appeal. Costs were awarded to the applicant.
Court disposition
Notice of appeal struck out as withdrawn. Costs awarded to applicant.
Orders
- The notice of appeal in Election Petition Number 30 of 2022 is struck out by reason of withdrawal.
- Costs are awarded to the applicant.
02
Material facts
Parties
Kiviri Tumwehe Geoffrey
Applicant Counsel: Anthony BaziraMubiru Eliph
Respondent Counsel: Nuwagaba Kansiime Filbert03
Procedural history
Posture
Election Petition / Application to Strike Out Notice of Appeal
04
Questions and positions
Legal issues
- 01
Whether the respondent failed to take an essential step in instituting the appeal by not applying for the record of proceedings as required by the rules.
- 02
Whether the notice of appeal should be deemed withdrawn or struck out due to failure to comply with procedural requirements.
Party arguments
- Applicant
- The applicant argued that the respondent did not apply for a record of proceedings as required by the Court of Appeal Rules, failed to institute the intended appeal within the prescribed time, and thus failed to take an essential step in the proceedings. The applicant sought for the notice of appeal to be deemed withdrawn or struck out.
- Respondent
- The respondent and his lawyers were absent and did not file an affidavit in opposition. There was an assertion by the respondent to the process server that the matter had been settled out of court, and counsel for the respondent claimed to have no further instructions.
05
Court’s reasoning
Legal principles
- 01
Rules 2(2), 43(1), 44(1), 82, 83(2) and (3), and 84(a) of the Judicature (Court of Appeal Rules) Directions.
A party must take essential procedural steps, including applying for the record of proceedings, to properly institute an appeal.
- 02
Rules 4 and 84(a) of the Judicature (Court of Appeal Rules) Directions.
Where an essential step is not taken and the appellant shows no interest, the appeal may be deemed withdrawn and the notice of appeal struck out.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the respondent failed to take an essential procedural step by not applying for the record of proceedings as required under the Court of Appeal Rules. There was no evidence of any attempt to institute the appeal within the prescribed time, and the respondent's counsel had withdrawn without leave. The respondent also indicated to the process server that the matter had been settled out of court, further evidencing lack of interest in pursuing the appeal. The court held that the matter had become moot and, in accordance with the relevant rules, deemed the appeal withdrawn and struck out the notice of appeal. Costs were awarded to the applicant.
Obiter and limits
- It appears to us that it is not denied that an essential step in this matter has not been taken.
- It is also evident that the intended appellant has lost interest in the intended appeal.
- This is therefore a matter that can be said to have become moot.
Court disposition
Notice of appeal struck out as withdrawn. Costs awarded to applicant.
- The notice of appeal in Election Petition Number 30 of 2022 is struck out by reason of withdrawal.
- Costs are awarded to the applicant.
Source and reliance status
Court of Appeal of Uganda
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of Appeal of Uganda
Judgment
THE REPUBLIC OF UGANDA
rN THE COURT OF APPEAL OF UGANDA (COA)AT KAMPALA
ELECTION PETITION APPLICATION NUMBER OO3O OF 2022
KlVllRl TUMWEHE GEOFFREY=================================[pPLICANT
VS
MUBIRU ELIPH =RESPONDENT
CORAM: HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA
HON. MR. JUSTICE MUSOTA STEPHEN, JA
HON. MR. JUSTICE GASHIRABAKE CHRISTOPHER, JA
RULING OF COURT
This is an Application by way of Notice of Motion under Rules 2(211,43(11,44(11 82, 83 (2) and (3) and 8a (a) of the Judicature (Court of Appeal Rules). Directions (hereafter referred to as the Rules of this Court) and seeks Orders that the Notice of Appeal lodged in the High Court at Mpigi on the 28th of October 2O2tbe deemed to have been withdrawn or in the alternative it be struck out.
The grounds are that at the time of filing the Notice, the Respondent did not as required under rules of this Court apply by a letter for a record of proceedings to be availed to them. That being the case the Respondent failed to institute the intended appealagainst the applicant within the prescribed time.
It is also the case for the Applicant therefore that the Respondent failed to take an essential step in the proceedings. At the hearing Mr. Anthony Bazira appeared for the Applicant, the Respondent and his lawyers were absent they did not file an affidavit in Opposition to the Motion, there is an Affidavit of Service dated 11th
March 2022 paragraph 4 there of whereby service was effected on counsel for the Respondent Mr. Nuwagaba Kansiime Filbert. Mr. Nuwagaba declined service on grounds that he no longer had instructions in the matter. There is no evidence on Court record of leave to withdraw from representation by Mr. Nuwagaba.
A hearing notice for today's hearing was again served on Mr. Nuwagaba on the 17th of March 2022 and Affidavit of Service by Atuhaire lmmaculate is on file dated 19th March2022,In paragraph 4 Mr. Nuwagaba told the process server that this matter had been withdrawn.
ln paragraph 5 when the Process Server called the Respondent, she was told by him that the matter was settled out of Court.
It appears to us that it is not denied that an essential step in this matter has not been taken, it is also evident that the intended Appellant has lost interest in the intended Appeal.
This is therefore a matter that can be said to have become moot, we therefore in accordance with Rules 4 and 84(a) of the Rules of this court deem the Appeal to have been withdrawn. The Notice of Appeal in Election Petition Number 30 of 2022 is accordingly struck out by reason of withdrawal.
As to costs we award them to the Applicant.
We so order.
Dated at Kampala this 2t rt day of H ftc-t11 2022.
HON. MR. JUSTICE GEOFFREY KIRYABWIRE
JUSTICE OF APPEAL
HON. MR. JUSTICE MUSOTA STEPHEN
JUSTICE OF APPEAT
HON. MR. JUSTICE GASH!RABAKE CHRISTOPHER
JUSTICE OF APPEAL
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