The argument that the rule is directory and not mandatory does not, in my opinion save the respondent. The provisions of the law
are clear and unambiguous. They must therefore be given their natural meaning. The provision imposes upon the Commission a duty to
perform a certain act or acts within a specified time. In this case, they are enjoined to file an affidavit, which must be
filed within 3 days after service upon them of a copy of the petition.
It was submitted that there is no sanction for failure to comply with that provision. It could not therefore be said to be mandatory,
but merely gave court guidelines for carrying out certain acts within given time frames. An example was given of Rule 10 of the same
Rules which directs that the petition be heard and ‘so far as possible, be completed within seven days.’ (Emphasis mine.) This provision was not strictly complied with in the present case.
It could not be said, on account of that reason, that these proceedings were void.
With respect, that argument adds more weight to the petitioners submission. The highlighted words above show that the framers of
the provision were aware of the possibility of the petition not being completed in the period specified hence the addition of the
words, ‘so far as possible.’ There is no such provision in the other rules including Rule 7, which give a specific time
for doing certain acts.
In the Kyaboogo case (supra), this court decided that the provisions of Rule 5 of the same rules now under consideration, which enjoins the petition to be presented
within 5 days after the decision of the decision of the Commission complained of was couched in mandatory terms. Failure to comply
with the time limits set out therein would lead to the petition being rejected.
I did not find any difference in intent between that provision and the one now under consideration, in so far as each of them directed
that an act be done within a time therein specified. In my opinion the consequences of non-compliance would, mutatis mutandis, be similar.
It was argued that Article 126 (2)(e) of the Constitution should be applied. That Article enjoins courts to apply the law without
undue regard to technicalities. In the case of Utex Industries Ltd. v. A.G. SCCA No. 52 of 1995 it was held that the provisions of Article 126 (2)(e) of the Constitution were not meant to do away with the
rules of procedure. To apply the rules of procedure in regard to time limits is not an exercise in legal gymnastics or technical
It was lastly submitted for the respondent that court should use its discretion and grant leave to file the affidavit out of time.
I agree with learned Counsel only to the extent that court is clothed with discretion to extend time. Such discretion must however
be exercised judicially. Before exercising the discretion whether or not to extend time, court considers inter alia, matters such
as the extent of the delay, and the reasons for the failure to, comply with the time limit, and the likely injustice or prejudice
to the other party.
In this case, the respondent did not file the affidavit till 5 days after the expiry of the time limit. It has to be noted that the
limit was only 3 days. A delay of 5 days was therefore not a short one. There were no reasons advanced for the delay or failure to
file in time. Court could not exercise its discretion in a vacuum. The application came at a time when the petitioner had filed all
his pleadings including his affidavits in reply. It was not indicated anywhere in the respondents pleadings that such an application
would be made. To grant the application in these circumstances would invariably cause injustice to the petitioner. Rule 14 was cited
but I found that it refers only to notices and other documents from the registrar. It was not of relevance to the objection. I would
therefore decline to grant the prayer to extend time.
In view of the reasons I have given above, the preliminary objection is accordingly upheld. The affidavit was filed out of time in
contravention of rule 7 of the Parliamentary Elections (Appeals to High Court from Commission) Rules S.I. 141-1. The affidavit and
all the documents annexed thereto are accordingly struck off.
I was rather surprised at the prayer by the petitioner in event of upholding the preliminary objection. Counsel for the petitioner
asked that the matter proceed ex parte. Election petitions are, by the nature of their pleadings matters to be disposed of by way
of affidavit evidence. In this case, all pleadings were on record. There was nothing else to add save to seek judgment.
Once the affidavit of the respondent was struck of, it meant that the petition remained unopposed. The petition not having been opposed
by way of affidavit as required under Rule 7, it is accordingly allowed. The decision of the respondent in which the petitioner was
disqualified as a candidate for the election of Chairperson of Kasese Town Council is hereby set aside. The petitioner is reinstated
as a duly nominated candidate therein, and the respondent is directed to proceed with the election of the Chairperson of Kasese Town
Council. Any orders or directives of the respondent, which are contrary to this directive, are null and void.
There was a prayer for damages for the inconvenience suffered by the petitioner for the disqualification. The court has directed
that the petitioner be reinstated as a duly nominated candidate. It was argued that the petitioner suffered heavy costs in campaigns.
It is not clear to me how he was to recoup such so-called heavy costs if he were not disqualified. At the very most optimistic, the
petitioner would be elected Chairperson, and would presumably earn a salary. But he was not seeking reimbursement for lost salary
earnings. In any event, there was no guarantee that he would win. There was always the distinct possibility that he could well loose
the election. I found the prayer for damages rather ridiculous in these circumstances and it is rejected.
The preliminary objection was raised on the day when the petition was set down for cross examination of one of the deponents, and
then final submissions would follow. Prior to this adjournment, there was an elaborate, if not laborious scheduling conference lasting
a whole day. Even on that day, Counsel for the petitioner intimated to court that he was ready for cross-examination of respondents
witness, and then make final submissions.
A preliminary objection ought to be raised at the earliest opportunity, as the determination of the same might have the effect of
disposing of the suit. In this case court was led though an unnecessary exercise of scheduling the petition. An adjournment was sought
to enable the respondent produce his witness for cross-examination. It was later at the adjourned hearing that the preliminary objection
was raised. All these attendant costs could well have been saved plus the time of court if the preliminary objection was raised at
the very beginning f the petition. For the above reasons, I will order that the petitioner shall have only half of the taxed costs
of the petition.