[2022] UGCA 149
The court found that the respondent failed to take an essential step in prosecuting the intended appeal, specifically by not applying for the record of proceedings and not instituting the appeal within the prescribed time. The absence of opposition and the respondent's indication that the matter was settled out of...
Source-derived case information.
- Citation
- [2022] UGCA 149
- Parties
- Applicant: Kiviri Tumwehe Geoffrey; Respondent: Mubiru Eliph
- Court
- Court of Appeal of Uganda
- Jurisdiction
- Uganda
- Case Number
- Election Petition Application No. 30 of 2022
- Procedural Posture
- Election Petition Application / Ruling on Application to Deem Notice of Appeal Withdrawn or Struck Out
- Outcome
- application allowed; notice of appeal deemed withdrawn and struck out; costs awarded to applicant
- Judges
- Kiryabwire, JA, Musota, JA, Gashirabake, JA
- Legal Topics
- Notice of Appeal Withdrawal, Failure to Take Essential Step, Service of Process, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiviri Tumwehe Geoffrey
Applicant
Mubiru Eliph
Respondent
Procedural Posture
Election Petition Application / Ruling on Application to Deem Notice of Appeal Withdrawn or Struck Out
Legal Issues
- 1 Whether the respondent failed to take an essential step in prosecuting the intended appeal as required by the rules of court.
- 2 Whether the notice of appeal should be deemed withdrawn or struck out due to inaction by the respondent.
- 3 Whether costs should be awarded to the applicant.
Ratio Decidendi
The court found that the respondent failed to take an essential step in prosecuting the intended appeal, specifically by not applying for the record of proceedings and not instituting the appeal within the prescribed time. The absence of opposition and the respondent's indication that the matter was settled out of court further demonstrated a lack of interest in pursuing the appeal. Accordingly, the court deemed the notice of appeal withdrawn and struck it out, awarding costs to the applicant.
Court Disposition
application allowed; notice of appeal deemed withdrawn and struck out; costs awarded to applicant
Orders
- The notice of appeal in Election Petition Number 30 of 2022 is deemed withdrawn and struck out.
- Costs are awarded to the applicant.
Full Case Text
Judgment text and source record
28 paragraphs
## 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