The High Court has dismissed an appeal in which the loser of Kampala Central Parliamentary elections Fred Nyanzi Ssentamu wanted to review an order of 38 million shillings he was directed to pay to eventual winner Muhammad Nsereko as costs.
Nyanzi’s appeal has also been dismissed with another order of costs by Civil Division Judge Musa Ssekaana on grounds that it was an afterthought having been filed out of the stipulated time.
Nyanzi’s appealed to the High Court shortly after the January 2021 Parliamentary elections saying he filed an application in the Chief Magistrates court in Mengo seeking to nullify the election results of Nsereko, a recount of votes and tallying of the same.
He was contesting on the National Unity Platform- NUP ticket, and was defeated by the incumbent and independent candidate Nsereko who got 16,998 votes against Nyanzi’s 15,975.
He argued that the voting process and counting of the votes were marred by malpractices and irregularities committed by both the Electoral Commission officials and Nsereko’s agents among other allegations.
But his vote recounting application was dismissed with costs and Nsereko subsequently filed a bill of costs on February 12th 2021 which was allowed at 38,761,000 shillings. Being aggrieved by the said award, Nyanzi instructed his lawyers Jingo, Ssempijja and Company Advocates together with Baingana and Company Advocates to file an appeal against the said ruling.
Nyanzi indicated that the said lawyers neglected to do so within the required time which prevented him from filing the appeal within the 30 days due to previous lawyers’ negligence and failure to take necessary steps for filing the appeal before lapse of time.
According to Nyanzi, on June 14th 2021 his new lawyers of Kibuuka Rashid and Company Advocates wrote a letter requesting for the typed and certified ruling from Mengo Court. However, a lockdown of 42 days was announced in the country and they were only able to get certified copies of the ruling after the lifting of lockdown. Nyanzi thus asked Court to allow him file a taxation appeal out of time and to review and revise the award down wards that the Mengo court had given Nsereko.
In response to the case, Nsereko opposed it arguing that Nyanzi had failed to follow up to know whether his lawyers acted accordingly which is a clear sign of negligent conduct aimed at wasting court’s time, his time and resources.
He added that during the lockdown that Nyanzi referred to, courts were open and lawyers were given special permits by Uganda Law Society to attend to their clients and he would have access to court documents and file an application for court record.
According to Nsereko, his rival neglected to file a taxation appeal for a period of two months from the date of the ruling to prove that he was dissatisfied and he did not give any reasonable ground to prove that he is not guilty of unreasonable delay since there was no evidence is attached.
In his ruling delivered on email on Monday, Justice Ssekaana has dismissed the appeal saying that time frames put in place by laws /statutes ought to be respected or else litigants will just clog the court system without a justifiable cause.
“Secondly, the applicant seems to argue that the applicant was unable to lodge an appeal in time due to mistake of counsel or negligence of counsel. The courts should be wary of advocates who come before it ‘chest thumping’ mistake or negligence of counsel”. The general principle is that negligence or fault on the part of counsel should not be visited on the litigant,” said Ssekaana.
He added however that this principle doesn’t mean that it has magic powers to bring good luck in all cases.
“In light of the above decision, the applicant’s lawyer therefore cannot claim mistake of counsel where she had an opportunity to correct the said mistake upon receiving instructions to promptly apply for extension and instead they also became indolent,” reasoned Ssekaana.
According to the Judge, Nyanzi’s lawyers ought to have filed an application for extension of time promptly since they were aware that time had lapsed, but instead opted to write a letter seeking a certified ruling which was not necessary at the moment.
He has further ruled that Nyanzi did not state when he instructed the said two law firms to appeal and what role each of the law firms was supposed to play in filing the application/appeal, and that he even failed to state when and how he discovered that they had failed to execute the instructions to appeal.
Nyanzi was defeated by Nsereko from the Parliamentary elections, Magistrates Court, High Court and he (Nyanzi) got some relief in the Court of Appeal which recently ordered for fresh hearing of the election petition. The fresh hearing is yet to start.
