Description
Timeframe for completion of election petitions – effect of striking out an appeal – seek the appeal process afresh – Appeal dismissed for want of appearance – mockery of democracy – electronic evidence – history of recognition of electronic evidence – Electronic Transactions Act, No. 13 of 2015 – a flash disk and a mobile phone – electronic data – evidence constituting electronic documentation – requisite documents omitted from the record of appeal – leave to include the omitted documents – failure to include core or primary documents in the record of appeal – incomplete record of appeal – incompetent appeal – prerogative of the party filing the record of appeal – supplementary record of appeal – answer to an objection regarding competency of the appeal – pre-empting a preliminary objection – time to remedy the deficiency complained of – only the respondents to file supplementary records of appeal – the position in our jurisdiction is well settled.
- The Court of Appeal must determine and appeal in election petitions within twelve months from the date of its lodging to the Court (p. 11).
- Effect of striking out an appeal – once an appeal is struck out, the record of appeal and the notice of appeal are as well struck out, and the appellant could seek the appeal process afresh (p. 15).
- An appeal which is dismissed for want of appearance and then restored in terms of Rule 112 (1) of the Rules retains the first notice of appeal, same case number and the calendar year at the time it was filed in terms of Rule 19(3) of the Rules (p. 16).
- The Court repeated what it said in REPUBLIC V. MWESIGE GEOFREY that when the words of a statute are unambiguous, judicial inquiry is complete. There is no need for interpolations. The courts must presume that a legislature says in a statute what it means and mean in a statute what it says (p. 17).
- In order not to deprive the citizenry of a representative in a parliament for a long time, both election petitions and appeals thereof should not take more than two years, otherwise the provisions for election petitions constitute a mockery of democracy (p. 18).
- This case contains a history of recognition of electronic evidence from 1997 in TANZANIA COTTON MARKETING BOARD V. COGECOT COTTON COMPANY until the enactment of the Electronic Transactions Act, No. 13 of 2015.
- A flash disc and a mobile phone store electronic data and such data is evidence constituting electronic documentation (p. 24).
- A flash disk and tecno mobile phone are documents and tangible exhibits (p. 25). Since this was a first appeal, the Court held that those exhibits ought to have been part of the record of appeal (pp. 25 – 26).
- If some requisite documents are omitted from the record of appeal and the appellant fails to include those documents in that record within 14 days after lodging the record of appeal, the appellant can apply to the Court for leave to include the omitted documents before the appeal is called for hearing (28).
- Failure to include core or primary documents in the record of appeal makes the record incomplete and renders the appeal incompetent (p. 29).
- The decision to choose documents relevant for the determination of the appeal is not the prerogative of or optional on the party filing the record of appeal save where a party has sought and obtained permission under Rule 96(3).
- A flash disk and a mobile phone used as evidence in trial were not included in the record of appeal. It was held that the record of appeal was incomplete and the appeal was incompetent (p. 30).
- To file supplementary record of appeal is no answer to an objection regarding competency of the appeal (p. 30).
- Pre-empting a preliminary objection – once a notice of a preliminary objection is lodged, the time to remedy the deficiency complained of lapses (p. 30).
- Supplementary records in civil appeals are governed by Rule 99(1) of the Rules which permits only the respondents to file supplementary records upon satisfying conditions stated there under (p. 31).
- A party cited Kenyan and Ugandan cases in support of his arguments but the Court refused to accede to those cases since the position in our jurisdiction is well settled (p. 32).
