Ssentamu, who held the flag for the National Unity Platform petitioned the High Court in Mpigi challenging the election of Sylvia Nayebale as the elected woman member of parliament for Gomba district citing election mal-practice. The Electoral Commission declared Nayebale as winner after collecting 30,253 votes against Ssentamu’s 22,657 votes following the 14th January, 2021 general elections.
The Court of
Appeal sitting in Kampala has ordered for a retrial in the case where Betty
Ssentamu challenged the decision of the High Court of Mpigi.
A panel of three
justices; Elizabeth Musoke, Irene Mulyagonja and Monica Mugenyi have set aside
orders of the High Court of Mpigi, ordered Ssentamu to pay 50,000 shillings in
court fee and sent back the entire case for retrial.
held the flag for the National Unity Platform petitioned the High Court in
Mpigi challenging the election of Sylvia Nayebale as the elected woman member
of Parliament for Gomba district citing election malpractice. The Electoral
Commission declared Nayebale as winner after collecting 30,253 votes against
Ssentamu’s 22,657 votes following the 14th January, 2021 general
Nayebale’s victory, but Justice Richard Wejuli Wabwire dismissed her petition. Nayebale raised a preliminary objection that the petition was not properly
filed, since Ssentamu had paid less filing fees at the time of commencing the petition.
Ssentamu paid 100,000 shillings instead of 150,000 shilling provided for under the
Parliamentary Elections (lnterim Provisions) Rules.
justice Wabwire’s decision, Ssentamu appealed before the Court of Appeal. She said
that the judge erred in fact and law to not use his discretion to order her to make
the necessary payment. She also challenged the decision to remove 28 affidavits
of her witnesses from court record and the judge’s decision to determine the
case based on a preliminary object rather than merit among other grounds of
her lawyer Medard Seggona argued before Court of Appeal that the trial Court
should have treated the non-payment of the full court fees as a minor error to
be corrected by ordering her to make the required payment. She further added
that a mistake, negligence, oversight or error done by her counsel shouldn’t
cost her justice.
The panel ruled
that although it is true that the petition was not filed properly due to the less
payment, the court’s hands were not tied to an extent that the only course of
action was to dismiss the petition.
ruled that rules of the Civil Procedure Act unequivocally grant courts the discretion
to allow a party that has not paid an applicable fee or has only paid a part of
it to make good on the shortfall.
“We thus find that the Trial
Court did have the discretion to allow the Appellant to pay the shortfall on
the prescribed court fees and erred in obviating that discretionary duty…. We are
satisfied, therefore, that although the petition was indeed improperly before the
Trial Court given the non-payment of the requisite court fees, the trial judge wrongly
dismissed it on that basis without exercising the judicial discretion available
to him under section 97 of the CPA.” ruled the panel.
28 affidavits from court record, the panel ruled that the trial Court could have
called the illiterate witnesses on whose behalf affidavits were written, to
establish if indeed they consented to the drafting of the affidavits.
Section 3 of the
illiterates Protection Act provides that any person who shall
write any document for on behalf of any illiterate shall also write on the document
his or her name as the writer of the document and his or her true and full
address, and his or her so doing shall imply a statement that he or she was
instructed to write the document by the person for whom it purports to have
been written and that it fully and correctly represents his or her instructions
and was read over and explained to him or her.