A CRITICAL ANALYSIS ON SERVICE AND NON-SERVICE OF SUMMONS AS A

GROUND FOR DISMISSAL OF AN ELECTION PETITION: CASE STUDY OF

ELECTION MATTERS IN UGANDA

Law Development Centre

Academic Year
2021/2022

Wabwire Patrick

Reg No: 2101700691

Email:[email protected]

A Research Project Report Submitted to the Department of Post Graduate Legal

Studies And Legal Aid in Partial Fulfilment of the Requirements
For the Award of the Diploma In Legal Practice Of
the Law Development Centre

09th January, 2021

1|Page
 DECLARATION

I PATRICK WABWIRE, declare that this research paper entitled 'A critical analysis on
service and non-service of summons as a ground for dismissal of an election petition:
case study of election matters in Uganda, is entirely my original work and has never been
submitted to the Law Development Centre or any other Institution or University for any
award, whatsoever.

…....................................

(CANDIDATE)

ENTRY ID: …............................

SIGNATURE: …...................................…. DATE: …................................................

2|Page
 CERTIFICATION

The undersigned approves and certifies that, he has read through the report and hereby
recommends it for acceptance by the Board of Examiners for the award of a Diploma in
Legal Practice.

SIGNATURE: …........................................... Date: ….........................................

…..............................................

(SUPERVISOR)

3|Page
 DEDICATION

I dedicate this piece of work to my family and friends and all others who greatly
contributed in one way or the other towards my completion of my Bar course.

4|Page
 ACKNOWLEDGEMENT

Special thanks goes to the Managing Partner Citadel Advocates Mr. Bernard Oundo, my
Supervisor Mercy Sasira for giving me opportunity for clerkship placement at Citadel
Advocates and also thank Counsel Kwoba Moses, Counsel Joweria Nakyeyune, Counsel
Twinomugisha Ivan, Counsel Arinda Ahabwe, Counsel Hadadi Kassim and Loyce
Nakyanzi for guiding me throughout the clerkship stay on the various aspects of litigation,
commercial and corporate transactions, Land transactions.

I also thank the entire school of law field attachment coordination team led by Mrs
Grancia Mugalula Kalule, Esther and others for quickly responding to issues emerging
while in field attachment and establishing a forum of communication for purpose of
internship. In the same vein I extend my appreciation to the entire LLB class of 2016
intake for exchange of ideas and experience

Finally gratitude goes to my family and in particular my wife Mrs Makoha Morine Jackie,
my daughter Ajiambo Lucia Patrina Wabwire and Sons Wabwire Rosario and Benaiah
XF,my buddy Kenneth Masiga Bwire ,Nandecha Juliet and my departed brother and
friend Ndyacha Ojiambo Humphrey (R.I.P) for the moral support and encourage ,you are
the winds beneath my wings

May GOD bless the works of your hands. we give glory and honor to him for the gift of
life and unlimited protection

5|Page
 LIST OF ABBREVIATIONS

EC: Electoral Commission.

CA Court of Appeal

CPR Civil Procedure Rules

UPC Uganda People's Congress.

KY Kabaka Yekka

NRA National Resistance Army.

EA East Africa
EPA Election Petition Appeal
HC: Miscellaneous Application

UGSC: Supreme Court

UGHCCD: High Court Civil Division

UGHEP High Court Election Petition

UGHC: High Court

HCB: High court Bulletin

6|Page
 Table of contents
DECLARATION............................................................................................................2
ACKNOWLEDGEMENT...............................................................................................2
Abstract.........................................................................................................................3
Table of contents..........................................................................................................4

7|Page
 CHAPTER ONE

General Introduction

The Uganda Electoral Commission (EC) provides national elections for a presidential,
members of Parliament and Local Government Elections. It derives its mandate under
the 1995 Constitution of the Republic of Uganda as amended 1 to ensure that regular, free
and fair elections and referenda and among others are held among others. The president
and members of parliament are elected for a five-year term. The Parliament is
composed of members directly elected to represent constituencies, and one woman
representative for every district; as well representatives of special interest groups,
including the army, youth, workers and persons with disabilities. The local council
leadership holds office for a term of 5 years

Since 1986 Uganda has held elections for the President and members of parliament in
1996, 2001,2006,2011,2016 and recently 2021, This has always been followed by local
government elections and election of special interest groups. Like any other exercise,
some candidates who were dissatisfied with the results and the process of elections
challenged many elections in courts of law.

It is the constitutional duty of courts to resolve such electoral disputes in a fair and
transparent manner in regard to principles set out by the law. Therefore, this research
proposal with focus on election petitions arsing from election matters in Uganda.

Background to the study

The constitution of the republic of Uganda under Article 104 2 provides for redress to an
aggrieved candidate in a presidential election. Under this Article, an aggrieved candidate
may petition the Supreme Court for an order that a candidate declared by the electoral
commission elected as President was not validly elected. A petition lodged under this
Article should be lodged in the Supreme Court registry within ten days after declaration of
the election results

The Parliamentary election Act Part X provides for election petition of Members of
parliament. Section 603 provides for who may present an election petition. Section 61
provides for grounds for setting aside election. Section 62 provides for notice of petition
to be served on respondent and finally section 63 4 provides for trial of election petitions.

S. 64 of the parliamentary elections act provides for trial of election petitions to be heard
in open court by the High Court and after due inquiry, dismiss the petition, declare that a
candidate other the candidate declared elected was validly elected, set aside the election
and order a new election. The procedure for trial is provided for in the matter of the
Parliamentary Elections (interim provisions) (election petition) rules 141-2.

1 Article 61
2 The Constitution of Republic of Uganda 1995 as amended
3 The Parliamentary Election Act
4 Ibid

8|Page
Trial is by affidavit evidence and all affidavits are deemed to have been read at filing. The
sequence include filing the petition accompanied by affidavits of the petitioner and his or
her witnesses, which are replied to by the respondent who files an answer to the petition
together with replies. The petitioner can file rejoinders. He can also file additional
affidavits in case of new evidence not previously filed or supplementary affidavits to
clarify or add to matters in an affidavit already filed.

For an election petition to be competent before courts of law summons and the petition
should be duly served on the respondents and in light of this we shall look at the laws
governing service of summons and petitions as per the discussion below:-

Order 5 rule 85 deals with the mode of service. It is by tendering or delivering a duplicate
duly signed by a judge or appointed officer and sealed by the court.

Order 5 rule 11 of CPR provides that service must be effected on the person upon whom
the summons are directed unless he has an authorised agent

High Court summons are usually signed by a Deputy Registrar or Registrar and in
Magistrates courts by the magistrate. Order 5 rule 7(1) deals transmission of summons
for service.

The summons are either delivered to a person authorised by court to serve summons,
who is called a process server, or to an advocate or advocate’s clerk approved by court,
or sent by post to a magisterial area where the defendant resides.

Where a duplicate of the summons is directly delivered and tendered to the defendant
personally or to an agent or other person on his behalf the defendant or such agent or
other person shall be required to endorse an acknowledgement of service on the original
summons in accordance with Order 5 Rule 14. Under Order 5 Rule 10, service shall be
made on the defendant in person unless he has an agent empowered to accept service.

In this case, service on the agent will, according to Order 3 rule 3, be deemed as
effectual as if it had been served on the party himself or herself and the rules relating to
service on a party to a suit will apply to service on his or her recognised agent.

Order 5 rule 13 deals with service upon a member of the defendant’s family.

Service could also be effected on any adult member of the family of the defendant who is
residing with him or her as cited in the case of Bulenzi v Wandera 6; Owraga v Owraga7.

Order 5 rule 14 of CPR requires the defendant to acknowledge service and retain a copy
of the summons and plaint

Order 5 rule 16 provides for the affidavit of service. After the process server has served
the summons, he or she is required to annex the affidavit of service.
5 Civil Procedures Rules S.I 71-1
6 [1991] HCB 80
7 [1993] IV KALR 4

9|Page
Statement of the problem

There are already decided cases by superior courts (Supreme Court and other courts
involving that election petitions should not be dismissed on merely condition of non-
service.

However, despite the above position, we witnessed in 2021 parliamentary election

petitions cases being dismissed for non-service just because the respondents were
nowhere to be seen and found

Therefore the research proposal will analyze this and propose remedies to bridge this
gap

Research Questions

What scope of service and non-service should be taken into consideration by courts in
determining parliamentary election petitions?

Objectives of the study

General Objective

To analyse service and non-service of summons and petition as a ground for dismissal of
election petition

Specific Objectives

1. To analyse of the nature and types of Elections in Uganda;

2. To analyse the law on Service of summons and non-service of summons as a

ground for dismissal of Election Petitions in Uganda;

3. To analyse the challenges faced in effecting service of summons in Election

Petitions in General

Significance of the study

i. This research project acts as a guide for policy makers, legislators and leaders
especially in making decisions concerned with the Election Petitions

ii. This research project further aids researchers, students, practicing advocates and
the public in general, as a source of reference, in effect it bring out both the
practical and theoretical challenges in effecting service of Summons and how best
the challenges can be encountered to avoid election petitions being dismissed for
non service in Uganda.

Conceptual framework

The study involves two concepts; Election Petitions and Service and non
service of Election petitions hence below is their conceptualization;

10 | P a g e
Election Petitions

A petition for inquiry into the validity of a Parliament member's election, when the
member's return is allegedly invalid for bribery or other reason 8.

In a broader perspective, an election petition refers to the procedure for challenging the
result of a Parliamentary, Presidential and Local Government elections in a courts of Law

Service and Non-Service of Summons in Election Petitions

Service is the formal delivery of a writ, summons, or other legal process 9

And Summons means to command (a person) by service of a summons to appear in

court10.

Research Methodology

This research is qualitative in nature, it mainly adopts library and desk research
approach, based on review of the available resources on Service and non-Service of
Summons in Election Petitions that is text books and secondary sources that is peer
reviewed journals and case laws on the subject of study in achieving the objectives of the
research project.

This chapter also present in detail how the study is to be carried out. That is, It presents
the design of the research, the target and sampled population including, the research
instruments and method of data analysis.

Scope of the study

Geographical Scope

The scope of the research will cover elections matters arising out of presidential
election, parliamentary election and local Government elections.

Time Scope

The research project is within the period allocated by Law Development Centre within
which it is to completed.

Limitation of the study

The study will be limited to election matters in Uganda.

Literature Review

8 The Black's Law Dictionary 8th Edition at Page 1572

9 The Black's Law Dictionary 8th Edition at Page 4266
10 The Black's Law Dictionary 8th Edition at Page 4504

11 | P a g e
Its insightful to state that Elections in Uganda From the Presidential, Parliamentary to
Local Government Elections have being manned with proven irregularities in courts of
Law through Election Petitions filed by such parties to these Election challenging the
outcome of the elections. However much as efforts have being put forward to challenge
these Election a number of such petitions has since then end up being thrown or
dismissed due technicalities on non-service of summons on such parties.

This research therefore provides an ideal practical approach to the Law on Service and
Non Service of Summons as aground for dismissal of Election Petitions in Uganda. Thus
its significant to look at the works of various writers in service of Summons and non
service as a ground of dismissing Election Petitions as discussed below.

This will present a review of literature on pertinent issues pertaining to the variables of
the study. It shall be reviewed under three facets namely; theoretical framework,
conceptual framework and related literature. The later shall be discussed under the
three objectives of the study.

Synopsis of the other Chapters.

Chapter Two.

This chapter covers the first specific objective of the research project which is majorly
non legal and it is;-

To analyse of the nature and types of Elections in Uganda

Chapter three.

It covers the second objective of the research project which is basically legal and this is;-

To analyse the law on Service of summons and non-service of summons as a

ground for dismissal of Election Petitions in Uganda;

Chapter Four.

This Chapter addresses the third objective of the research project and is;-

To analyse the challenges faced in effecting service of summons in Election

Petitions in Genera

Chapter five.

This chapter of the research project contains the summary of the findings,
conclusions and recommendations as to the topic under study.

12 | P a g e
 CHAPTER TWO

AN ANALYSIS OF THE NATURE AND SCOPE OF ELECTIONS IN UGANDA

Introduction.

This chapter provides for the nature and types of Elections that is; Presidential,
Parliamentary and Local Government Elections held in Uganda since proclaiming its
independence. And analyses in detail the scope of Elections held in Uganda right from
the top Government offices until the Local Government Level.

History of Elections in Uganda.

Fair and free elections in world history are the cornerstone of a democracy. The History
of the first national election in Uganda first set foot with the, Uganda National Assembly
election of 1962. As such an alliance between the Uganda People's Congress (UPC) and
Kabaka Yekka (KY) won the majority of parliamentary seats, and formed Uganda's first
post-independence government with Obote as executive Prime Minister.(History of
Parliament Archived 2010-02-20 at the Wayback Machine (Website of the Parliament of
Uganda))

A period of dictatorship and political strife, including the tenures of Idi Amin, Yusuf Lule
and Godfrey Binaisa, meant no elections were held until the presidential election of
December 1980. Obote was pronounced the winner amid bitter dispute and allegations of
electoral fraud. President Yoweri Museveni, one of the presidential aspirants, declared an
armed rebellion, and waged a guerrilla war (the Ugandan Bush War) against the
government of Obote. President Yoweri Museveni's National Resistance Army (NRA)
took power in 1986 from the government of Gen. Tito Okello Lutwa who had six months
earlier toppled Obote's UPC government in a July 27, 1985 military coup, making him
president.
In 1986, The Current Sitting President of Uganda Mr. Yoweri Museveni of National
Resistance Movement (NRM) instituted the non-party "Movement" system of government
, a form of "no-party democracy", banning political parties from fielding candidates directly
in elections. In the "no-party" presidential election in 1996, Museveni defeated Paul
Ssemogerere and Mohamed Mayanja by a landslide. Although international and
domestic observers described the vote as valid, both the losing candidates rejected the
results. (Nelson Kasfir (1998). ""No-Party Democracy" in Uganda". Journal of Democracy. 9
(2): 49–63. doi:10.1353/jod.1998.0029)
However following the Presidential Elections held in 2001, we witnessed Mr. Museveni
winning by a substantial majority, with Kizza Besigye as the only real challenger. Despite
a protest against the results, citing massive voter intimidation and rigging, the outcome
was accepted by the Supreme Court of Uganda.
In 28 July 2005, Ugandans held a Constitutional Referendum, which resulted into
Ugandans voting to restore a multi-party political system, lifting the 19-year restriction on

13 | P a g e
the activities of political parties. The 2006 general election was the first multiparty
election in 25 years. Mr. President Yoweri Museveni won 59% of the presidential vote,
and his party, the National Resistance Movement, won the majority of parliamentary seats.
And the same 2022, a similar Multi-Party Elections were held which saw Mr. President
Yoweri Museveni retaining the presidential seat after winning the Elections and
opposition leader with Mr. Kyagulani Ssentamu Alias Bobi Wine petitioning the Supreme
Court Challenging the results which he later Withdraw the petition citing a number of
reason.

The Presidential Elections

A presidential election is the election of any head of state whose official title is President.
In Uganda, the President of the Republic of Uganda is the head of state and the head of
Government of Uganda. The President leads the executive branch of the Government of
Uganda.(https://en.wikipedia.org/wiki/President_of_Uganda)

The Presidential Elections are Governed by the Constitution of Republic of Uganda 1995
as amended, the Electoral Commission Act Cap 140, Presidential Elections Act, 2005
and The Presidential Elections (ELECTION Petitions) Rules, 2001 there under.

In Uganda are the mandate of the the Electoral commission under Article 61 of the 1995
Constitution of the Republic of Uganda as amended to organise and conduct regular,
free and fair elections" in the country, in an efficient, professional and impartial manner.

Presidential Election Cycle

In Uganda, The president is elected after a five-year term in office and after the tenure
expires as per Article 105 of the Constitution of Republic of Uganda 1995 as amended.
New Elections can then be conducted by the Electoral Commission on a date appointed
the Chairperson deriving its authority from the constitution and the Electoral Commission
Act.

Further Non of the Presidential Candidates are limited by any term limits as the Article
105 (2) of the Constitution of Republic of Uganda 1995 was amended by [clause (2)
inserted by section 13(c) of Act 11 of 2005 and substituted by section 1(a) of Act 1 of
2018] which removed the Presidential term limits of 2 term contesting.

Thus Under Article 61 (2) of the Constitution of Republic of Uganda 1995 as amended,
The Electoral Commission is mandated to conduct presidential elections within the first
thirty days of the last one hundred and twenty two days before the expiration of the term
of the President, as the case may be.

The Parliamentary Elections

14 | P a g e
In Uganda, Parliamentary Elections are Governed by The Constitution of Republic of
Uganda 1995 as amended, The Parliamentary Elections Act, Cap 2005 as amended an

the rules there under.

Parliamentary Election in Uganda Under Article 61 (2) of the Constitution of Republic of

Uganda 1995 as amended, are also conducted by the Electoral Commission within the
first thirty days of the last one hundred and twenty two days before the expiration of the
term of the Parliament as the case may be. And this provision is reiterated in the
Parliamentary Elections Act which is the Governing law that in brief states that, a general
election of members of Parliament shall be held in accordance with article 61 of the
Constitution.

And these in similar circumstances are held after expiration of the the five year term
stipulated under the Constitution of Republic of Uganda

The Local Government Elections

These are Governed by the Constitution of Republic of Uganda 1995 as amended, The
Electoral Commission Act Cap 140 and the Local Government Act Cap 243.

Thus Under Article 61 (2) of the Constitution of Republic of Uganda 1995 as amended,
The Electoral Commission shall hold, general local government council elections within
the first thirty days of the last one hundred and twenty two days before the expiration of
the term of the President, Parliament or local government councils as the case may be.
And this same position is reiterated under under Section 101 of the Local Government
Act.

As per Article 181 (4) of the Constitution, all local government councils shall be elected
every seven years. However [clause (4) substituted by section 35 of Act 11 of 2005 and
amended by section 6 of Act 1 of 2018] which states that Article 181 of the Constitution is
amended in clause (4), by substituting for the word “five” appearing immediately before
the word “years” the word “seven”. Thus every Local Government Council's Elections are
conducted after every Five Years.

Therefore in Uganda the Electoral Commission is only body mandated by law to carry out
Elections of all categories right from the Presidential, Parliamentary and Local
Government Council as enshrined under the constitution which in turn forms the basis of
Petitions in Courts by aggrieved parties in the bid to challenge the results of Elections
and thereby subjecting it to court process such as service and non service of Summon
and Petitions which forms the basis of analysis of the law on service and non-service of
summons as a ground for dismissing of Election Petitions in Uganda in Chapter Three

15 | P a g e
 CHAPTER THREE

AN ANALYSIS OF THE LAW ON SERVICE OF SUMMONS AND NON-SERVICE OF

SUMMONS AS A GROUND FOR DISMISSAL OF ELECTION
PETITIONS IN UGANDA

Introduction
This Chapter gives a detailed explanation on what are summons, the law on service of
summons and non-service of summons as a ground for Dismissal of Election Petitions in
Uganda and decisions of courts on summons and non-service of summon and effects of
non-service on election petitions in Uganda.

What are Summons

summons, also called Citation in other Jurisdictions, in law, document issued by a court
ordering a specific person to appear at a specific time for some specific purpose. It is
issued either directly to the person or to a law officer who must carry out the instructions.
Often the purpose of a citation or summons is to require a person to answer charges or a
complaint filed against him. It may also be used simply to notify a person that he has an
interest in the proceedings at hand, which it would be to his advantage to attend 11.

When a suit is instituted, the process of getting the either party aware about this suit is
the objective of a summons and this summons-to-file a defense must be served to that
party or parties.

As required under the Civil Procedure Act (PA) 12, when a suit has been
instituted then service has to be made upon the defendant or defendants to
enter appearance and answer the claim. Same with the Civil Procedure Rules,
when a suit is instituted or has been instituted then summons may be issued to
the defendant ordering him to file a defense or ordering him to answer the claim
on the day specified therein13.

The Law on Service of Summons in Election Petitions in Uganda

Ordinarily the Law on Service of Summons is Order 5 rules 1 & 2 of the Civil Procedure
Rules which states that;

“when a suit has been duly instituted a summons may be issued to the defendant
ordering him or her to file a defence within a time to be specified in the summons;
or ordering him or her to appear and answer the claim on a day to be specified in
the summons and that Service of summons shall be effected within twenty-one

11 https://www.britannica.com/topic/pleading
12 Section 20
13 Order 5 rule 1 (1)

16 | P a g e
 days from the date of issue; except that the time may be extended on application
to the court, made within fifteen days after the expiration of the twenty-one days,
showing sufficient reasons for the extension”

This same position of the law was upheld in the Supreme Court case of Kanyabwera
versus Tumwebaze14, cited with approval by Hon. Mr. Justice Henry 1. Kawesa in
Twinomuriisa v Mugume (Miscellaneous Application 2127 of 2021) 15 that, It is now
settled law that the above provisions are mandatory.

However, the law on Service on Summons in Election Petition is Well stated in

case laws as expressed in the different points addressed below

For Service Summons in Presidential Election Petitions

The Law on service of summons in Presidential election petitions is expressed under the
Presidential Elections (Election Petitions) Rules, 2001 16 and further expounded by
the Supreme Court in the recent election petition case of Kyagulanyi Ssentamu v
Yoweri Museveni Tibuhaburwa and 2 Others (Civil Miscellaneous Application 1 of
2021)17 where court stated that;-

A critical reading of the Presidential Elections (Election Petitions) Rules, 2001, S.I.
No. 13 indicates that the rules provide for time lines within which the chronology of
events geared towards the filing and determination of a presidential election
petition are supposed to be performed. The steps leading to the determination of
the petition include the presentation of the petition (filing) at the registry, service of
the petition, filing an answer to the petition by the respondent(s) and trial of the
petition. These steps are elucidated under the Section 59 subsections (1), (2), (3)
and (5) respectively.

The Presidential Elections (Elections Petitions) Rules, rule 5 thereof provides for the
mode of presentation of the petition by the petitioner, Rule 6 of the rules provides for the
mode of serving the petition, and Rule 8 provides for the filing of an answer by the
respondent(s) to the petition. Rules 10 and 11 elucidate the mode of trial of the petition
with, rule 12 emphasizes an expeditious hearing of the petition by the court. The Court is
commanded to declare its findings in not more than 45 days.

For Parliamentary Election Petitions.

The Law is well stated under Section 62 of the Parliamentary Elections Act, 2005 and
Rule 6 of the Parliamentary Elections [Election Petitions) Rules and Expounded in the
Court of Appeal decision in the case of NYANZI FRED SENTA V NSEREKO

14 [20151 2 EA 86, at 93
15 [2022] UGHCLD 96 (04 February 2022)
16 Rule 6
17 [2022] UGSC 9 (18 March 2021)

17 | P a g e
MOHAMMAD , THE ELECTORAL COMMISSION & RETURNING OFFICER KAMPALA
CENTRAL 18; that Section 62 of the Parliamentary Elections Act and Rule 6 of the
Parliamentary Elections [Election Petitions) Rules enjoins the Petitioner to serve each
Respondent within seven days after filing of the Petition a notice in writing of the
presentation of the petition accompanied by copy of the Petition.

And under Rule 6 (3)19 Service of the petition on a respondent under these Rules shall be
personal except as provided in subrule (4) of this rule; and under Subrule (4) Where the
respondent cannot be found within three days for effecting personal service on him or
her, the petitioner or the advocate of the petitioner shall immediately make an application
to the court supported by an affidavit, stating that all reasonable efforts have been made
to effect personal service on the respondent but without success.

For Instance In the case of Mbabali fude v Electoral Commission Election Appeal
No. 3 of 2006 the notice of Presentation of the Petition was served on the Electoral
Commission as required by law. There however arose a dispute as to whether a similar
service was effected on the winning candidate. While the Petition was awaiting fixture for
hearing, the Electoral commission filed an Application seeking the dismissal of the
Election Petition. The major ground of the Application was that service of the notice of
Presentation of Petition was not served on the winning candidate.

It was argued that the failure of service of the Petition rendered the Petition a nullity. This
court held that the Electoral Commission as a party to the Petition had "locus standi" to
apply to court to hear and determine the question of whether the winning candidate was
served as that could dispose of the whole Petition. The Court relied on the case of
Besweri Lubuye v Electoral Commission20. ln that case Daniel Kikoola who was the
winning candidate was not served with the copy of the petition as required by law. Having
learnt of the petition somehow, he filed his answer to the Petition under protest. The High
court dismissed the Petition on ground that it was not served on the winning candidate.

On appeal, this court while dismissing the Appeal held: - "By reason of non-service of
the petition on the second respondent, no action too was in existence."

However in contrast In the case of Muhindo Rehema Vs Winfred Kizza and EC21, cited
by Hon: Justice Isaac Muwata in Mpanga v Ssenkubuge and Another 22 where the
court held that service of process required in election petitions is directory rather than
mandatory, and the failure to do so, especially where no injustice or prejudice was
caused cannot vitiate the proceedings before the court.
When are Service of Summons said to be Effective

18 Election Petition Appeal No. 20 of 2021

19 The Parliamentary Elections (Election Petition) rules
20 EPA No. 2 of 1999
21 (Election Appeal No. 29 of 2011)
22 (Election Petition 15 of 2021) [2021] UGHCCD 112 (08 September 2021)

18 | P a g e
As per Hon. Mr. Justice Bashaija K. Andrew in Dr. B.B Byarugaba v Kantarama
(Civil Miscellaneous Application 229 of 2019)23 it was held that;-

Service of court process is generally governed by Order 5 CPR for the service of
summons. In particular, it is a requirement under Order 5 r.10 CPR, that service of
summons shall be made to the defendant in person or his/her appointed agent. It
provides as follows;
“Wherever it is practicable, service shall be made on the defendant in
person, unless he or she has an agent empowered to accept service, in
which case service on the agent shall be sufficient.” [underlined for
emphasis]”.
Further court held that;- “Personal service” denotes leaving a copy of the document
served with a person upon whom the service is intended to be effected. It is now a
settled position that proper effort must be made to effect personal service but if it is not
possible, service may be made to an agent or an Advocate. See: Kiggundu vs. Kasujja
[1971] HCB 164. Similarly, service of court process may be effected on the defendant
personally or on an agent by whom the defendant carries on business and such service
on an agent is effectual. See: Lalji vs. Devji [1962] EA 306; UTC vs. Katongole [1975]
HCB 336.

Worthy of note is that for service to be deemed proper and effective, there must be
proof of service by a serving officer or process server.

In that regard, Order 5 r.16 CPR provides as follows;

“The serving officer shall, in all cases in which the summons has been served
under rule 14 of this Order, make or annex or cause to be annexed to the original
summons an affidavit of service stating the time when and the manner in which
the summons was served, and the name and address of the person, if any,
identifying the person served and witnessing the delivery or tender of the
summons.” [underlined for emphasis].
In MB Automobiles vs. Kampala Bus Service [1966] EA 400; Owani vs. Bukenya
Salongo24, court held that failure to record the name and address of the person
identifying the person to be served renders the affidavit of service incurably defective

The Law on Non - Service as a ground for Dismissal of Election Petition According
to the Supreme Court in Kanyabwera versus Tumwebwa25, cited with Approval in
Senkubuge and Another v Kibirango 26 all the provisions under O.5 r1 of the Civil
23 [2020] UGHC 216 (29 April 2020)
24 [1976] HCB 63
25 [2005] 2 E.A 86
26 (Civil Miscellaneous Application 1704 of 2019) [2021] UGHCLD 108 (02 August 2021)

19 | P a g e
Procedure Rules, are is of strict application, since a penalty accrues upon default. The
penalty for default, according to O.5 r1(3)(a) of the Civil Procedure Rules, is dismissal of
the suit, or application. Court Further held that In this case, the Applicants having
defaulted on service of the application upon the Respondent within time, I find that this
application ought to be dismissed.

In the case of Rashida & Anor v Adrisi 27 Hon Justice Stephen Mubiru held that;
Order 5 rules 1 (2) of The Civil Procedure Rules provides as follows;
Service of summons issued under sub-rule (1) of this rule shall be effected within
twenty-one days from the date of issue; except that the time may be extended on
application to the court, made within fifteen days after the expiration of the twenty-
one days, showing sufficient reasons for the extension. (emphasis added).

He Further held that;

The use of the word “shall” prima facie makes that requirement mandatory. This
provision automatically invalidates summonses to file a defence which may have
been issued and are not served within twenty one days of issuance. It is meant to
eliminate suits which are filed for the sake of achieving collateral objectives other
than the genuine determination of justiciable disputes and as a means of
expeditiously disposing of frivolous or speculative suits. It is thus settled law that
the provisions of Order 5 of The Civil Procedure Rules are mandatory and should
be complied with (see Kanyabwera v. Tumwebaze [2005] 2 EA 86 at 93)

Effects of Non - Service of Summons on Election Petitions

As regards to non-service of Summons in Election petitions, the Courts have come up

with a number of divergent decisions on the position and effect of Non-Service of
Summons as a ground for dismissal of Election Petitions as discussed in details in the
following decisions.

In Magombe v Electoral Commission and Another 28 Justices of Court Appeal gave

detailed position on service of summons and petitions and non-service in its strict sense
as such they noted that;

Election petitions in their nature are sensitive and serious matters that are given
strict time lines and guidelines according to the law. This is to enable the quick
disposal of the same. The law (Section 141 of the Local Governments Act)
prescribes a time limit within which a petition should be served on the
respondent(s) and that is within 7 days from filing of the same.

27 (Miscellaneous Civil Application 9 0f 2017) [2017] UGHCLD 29 (23 March 2017)

28 (Election Petition 19 of 2021) [2021] UGHEP 19 (07 September 2021)

20 | P a g e
And referred to a number of cases that is In the case of Ikiror Kevin v. Orot Ismeal,
Election Petition Appeal No. 105 of 2016, the Court of Appeal in regard to the
strictness as to time of lodgment and prosecution of election petitions quoted with
approval the case of Muiya v. Nyagah and Others [2003]2 E.A 616 at P. 621 where it
was held that;

“Elections are serious matters of a state with its citizens. As elections are held, the
outcome announced, the electorate must know their political leader quickly and
assuredly. There must be limited or no uncertainty about this. Roles of elected
representatives are many and diverse vis-à-vis their electors. To perform the roles
well the elected must be sure of his post and the elector of his leader. And the
sooner the better to give that certainty. So either the election is accepted at once
or if challenged, that challenge must be moved along to the end swiftly enough to
restore certainty. And for that, election petitions are governed by this Act with its
rules in a very strict manner. Election petition law and the regime in general, is a
unique one and only intended for elections. It does not admit to other laws and
procedures governing other types of disputes, unless it says so itself.”

“This court is satisfied that the necessary strictness and certainty expressed in the
above quotation equally applies to the election petitions…These provisions must
thus be interpreted and applied with this aspect of strictness as to time lines being
of material significance.”

Therefore, It is pertinent to note that time lines in election petitions are very vital and are
meant to be followed, given the uniqueness and strictness of the law on election
petitions. That is why election petitions are given a strict number of days within which to
be handled and disposed of so the parties do not have the luxury to lag in filing their
pleadings and handling prosecution. In the case of Katongole Arthur v. Babirye Kityo
Sarah and Electoral Commission, Election Petition No. 003 of 2016 it was stated
that;

“Clearly a petition must be lodged in court within 30 days of the gazetting of the
results by the second respondent. That petition and a notice of presentation of the
petition shall then be served on the respondent within 7 days after the filling. This
is the plain meaning of the legislative provisions governing the filing and service of
the election petitions as provided for in the law and procedural rules above. I am
guided by the holding in Hon. T. Sekikubo & 4 Others, S.C.C.A No. 001/2015,
where their Lordships held that the first and cardinal rule of statutory interpretation
is that where words are clear and unambiguous, they should be given their
primary, plain, ordinary, and natural meaning.

The law governing filing and serving of petitions is clear and unambiguous and I
have no difficulty in stating that a petition must be filed in Court within 30 days of
the day on which the results are gazetted and served on the respondent together
with a notice of presentation of petition within 7 days of filing the petition with the

21 | P a g e
 registrar. Prima facie therefore any petition not filed in accordance with these
provisions is not properly before the court.”

Courts have however, found late service of petitions onto the respondents as not being
prejudicial to the respondents, more especially where the respondents filed their answers
to the petition as was held in the case of Mandera v. Bwowe29, by the court of Appeal
that;

“On the issue of the non-service of the Notice of Presentation of the

Petition, we find that its late service did not, in any way prejudice the
appellant because he filed his answer to the petition and the matter was
heard and determined. This is a matter where Article 126 (2) (e) of the
Constitution of the Republic of Uganda, 1995, comes in handy and we find
that the learned trial judge rightly held as he did.”

And in the case of Mukasa Anthony Harris v. Dr. Bayiga Micael Philip Lulume,
Election Petition Appeal No. 18 of 2007, it was held inter alia that;

“Section 62 of the Parliamentary Elections Act No. 17 of 2005, is to the effect

that a notice in writing of a petition accompanied by a copy of the petition
shall within 7 days after filing of the petition, be served by the petitioner on
the respondent(s) as the case may be. The provisions of Section 62 are not
mandatory for they do not state what would happen if the notice is not
served within the 7 days. The omission to serve the notice is an irregularity
which does not vitiate the proceedings. The appellant had not pointed out
any prejudice or injustice which he suffered because of the alleged
omission by the respondent to serve the notice.”

In the instant matter the petitioner served the 2 nd respondent after the 7 days within which
the petitioner is required by law to have effected service. The 2 nd respondent however,
put in his answer to the petition and did not show this court in any way that he was
prejudiced by the late service of the petition.

In the case of Muhindo Rehema v. Winfred Kizza and Electoral Commission 30, citing
with approval in the case of Lumu v. Makumbi and Electoral Commission, Election
Petition Appeal No. 109 of 2016, the Court of Appeal in regard to the effect of service of
process required in election petitions found that it was directory rather than mandatory,
and that failure to do so, especially where no injustice or prejudice was caused, would be
a mere irregularity which did not vitiate the proceedings.

However, important to note from the above discussion is that much as there is a variation
on the effect of summons in other disputes, election petitions are matters that are of

29 Election Petition Appeal No. 91 of 2016

30 Election Petition No. 29 of 2011

22 | P a g e
national interest as such much as non-service may be fatal in other disputes, in Election
Petitions as expressed in Lumu v. Makumbi and Electoral Commission 31, where the
Court of Appeal in regard to the effect of service of process required in election petitions
found that it was directory rather than mandatory, and that failure to do so, especially
where no injustice or prejudice was caused, would be a mere irregularity which did not
vitiate the proceedings.

In conclusion as expressed Muhindo Rehema v Winfred Kiiza & Anor 32 the Judges of
Court appeal in Uphelding the Supreme court decision In interpreting the meaning and
application of the provision regarding service of notice, in Sitenda Sebalu vs. Sam K.
Njuba – SC Election Petition Appeal No. 26 of 2007 noted that;-,
“it cannot be gainsaid that the purpose and intention of the legislature in
setting up an elaborate system for judicial inquiry into alleged electoral
malpractices …. was to ensure, equally in the public interest, that such
allegations are subjected to fair trial and are determined on merit”.

The court noted also that these two interests must be balanced, and one cannot
be sought at the expense of the other. And quoted Further, tye decision in
Mukasa Anthony Harris v Bayiga Michael Philip Lulume SC Election Petition
Appeal No. 18 of 2007, the court ruled that the service of process requirement
was directory rather than mandatory, and that failure so to do, especially where no
injustice or prejudice was caused would be a mere irregularity that did not vitiate
the proceedings.

The Court applied Article 126(2) (e) of the Constitution which specifically
provides; “Substantive justice shall be administered without undue regard to
technicalities.”
The fact that service was not effected exactly as provided is a mere technicality
given that the 1st respondent showed no prejudice or inconvenience suffered as a
result and still she filed a timely answer to the petition. Coupled with the foregoing,
allowing the petition to move forward serves both the aims of the legislature and
prevents untimely delay so as to answer the desired decision on the merit of the
petition – see Sebalu v Sitenda (supra). Since there was no prejudice occasioned
by non service of the petition, there was no strong argument dictating the
dismissal of the petition on a technicality, as the learned judge was disposed to
do.
And Secondly that to determine the petition to be a nullity punishes not only the
appellant but the voters as well. Although the appellant sought the order from the

31 Election Petition No. 109 of 2016

32 (Election Petition Appeal 29 of 2011) [2012] UGCA 18 (11 June 2012)

23 | P a g e
 wrong court, had the Magistrate properly declined to exercise jurisdiction, time
would still have remained to effect service of notice

24 | P a g e
 CHAPTER FOUR

AN ANALYSIS OF THE CHALLENGES FACED IN EFFECTING SERVICE OF

SUMMONS IN ELECTION PETITIONS IN GENERAL

INTRODUCTION.
Election Petitions are basically matters between the state and its citizens, however,
service of summons in broad sense involves service on the parties involving in
participating in the Elections themselves that is; the winning and losing candidates, the
Electoral commission and any other person the party Petitioning attaches as a
respondent.

Therefore as a matter of fact, there are a number of challenges faced in the process of
effecting service of summons in Election Petitions some of which are Political while
others are due to unforeseen circumstances that may tend to hinder the process of
proper service of summons within time which factors are discussed in details here under.

Evading Service by Respondents.

It has since the being a challenge since its a statutory requirement that service of
summons needs to be personal, however much as avenue has been put in Place under
Order 5 of the Civil Procedure Rules that service can be through an Agent of the
respondent, in his or her last known place of business or trade or it an be through
substituted service. This at times turns out to be possible since in most cases upon
completion of elections and results being announced, the prospective respondents tend
to abscond from the known places beyond the 7 days stipulated under the law to have
election petitions served on the respondents by either travelling out of the country without
any known agent to be served or any known former place of trade or business or any
means of effecting substituted service as a means of evading service.

In accessibility of the persons to which summons are directed.

In most cases its practical that certain respondents due to their positions in the
Government, have made it practically difficult to access them personally to have
summons served on them which in most cases delays the days to be taken to have the
summons served and at times not possible as such the 7 days required by the law to
have the summons served on the respondents tend to expire resulting into non-service of
the summons.

Services to persons whose address cannot be found.

Its also a practical aspect that respondents once they realise that a petition is being
preferred against them or has been preferred against them, they tend to avoid their
known addresses and makes it practically difficult to have summons served on them and

25 | P a g e
desist from any known addresses thus making service of summons within the 7 days
stipulated under the law practically impossible, hence non-service of summons.

Wrong venue or jurisdiction

Election Petitions may Sometimes may be filed in a wrong Jurisdictions, it is not the
information of the parties that is wrong, but instead information related to the court where
the case is supposed to be prosecuted. After all, the point of service of process is to
ensure a defendant is able to defend themselves against accusations of legal
wrongdoing, so it is a problem if the summons indicates the wrong venue or jurisdiction
for the case. This may particularly be an issue if you have attempted to locate a
defendant in multiple jurisdictions, but they have proved evasive.

Missing summons

Summons are in most cases accompanied by pleadings, however at times such

summons tend not to be found in courts registry due to them being either misplaced or
mixed up by the courts clerks or being taken out buy unknown persons to the petitioners
once they are extracted making the entire process difficult since they are missing by the
time they are found or a fresh one's are extracted, the days allocated for the filing,
serving and hearing of Election Petitions are passed as such non-service yet as stated in
Magombe v Electoral Commission and Another (Election Petition 19 of 2021) [2021]
UGHCEP 19 (07 September 2021) by Justices of Court Appeal that; Election petitions in
their nature are sensitive and serious matters that are given strict time lines and
guidelines according to the law and this is to enable the quick disposal of the same

And further In the case of Katongole Arthur v. Babirye Kityo Sarah and Electoral
Commission, Election Petition No. 003 of 2016 it was stated that;
“Clearly a petition must be lodged in court within 30 days of the gazetting of
the results by the second respondent. That petition and a notice of presentation
of the petition shall then be served on the respondent within 7 days after the filling.
This is the plain meaning of the legislative provisions governing the filing and
service of the election petitions as provided for in the law and procedural rules
above.

Service on a wrong person

It can sometimes be difficult to track down a Respondents in most cases where the
respondent is nowhere to be found or there is no known address or agent of the
respondent, especially if they have been evasive. This can be an issue because the Civil
Procedure Rules require in-person service of process where possible. The difficulty in

26 | P a g e
sometimes tracking down a respondent may lead some process servers to leave the
summons and complaint with someone else at the same address who is not permitted to
accept service on the defendant’s behalf. If service of process is not delivered to the right
person, it will not count in the court’s eyes. As such resulting into improper service of
summons or non-service as the circumstances may dictate.

Substituted service too early

Substituted service, the act of delivering service of process to someone other than the
named defendant or their designated agent, is accepted when the person themselves
cannot be found. However, a server is only supposed to resort to substituted service
when they have done their due diligence to try to deliver service in-person first. When a
process server gives up too early and resorts to substituted service due to its
convenience, they endanger the entire case. Its a prerequisite under under Order 5 rule
18 that such an order for substituted service is issued by the court that issued the
summons as such early substituted without proper court order due to convenience may
result into non-service of summons.

27 | P a g e
 CHAPTER FIVE

RECOMMENDATIONS AND CONCLUSIONS.

Introduction.
The research looked at the analysis on the law on service and non-service of summons
as a ground for dismissal of an election petition, the effect of non service of summons in
election petition as how it is regarded under the law.

Recommendations.

Rolling Out the Electronic Case Management Information System to all the Courts of
Judicature in Uganda to combat the aspects of missing summons and delays in tracing
the where abouts of the missing Summons in the registry which may tend to surpass the
7 days stipulated under the law for service of summons, yet once its discovered that the
hard copies are missing, the fresh copies can be reprinted from the system and reserved
within the stipulated time of 7 days.

Embracing the use of online service of summons through social technologies that is
through emails, or Whatsapp technology. An example of this development came with the
decision in Male Mabirizi v Attorney General Miscellaneous Application No. 918 of
2021 where Justice Musa Ssekaana had this to say, “Like any other modes of service,
service by email or Facebook or WhatsApp or any other technologically advanced means
are calculated at providing parties with notice of existence of a suit or hearing date for
their response or attendance. Service of court process electronically has come to be
recognized in Uganda as one of the acceptable means of service through the Companies
Act33 and also recently rules passed by the Rules Committee. 34

Conclusions

33 Section 274
34 The Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice)
Directions, 2019

28 | P a g e
 BIBLIOGRAPHY

LAWS AND REGULATIONS.

1. The Constitution of Republic of Uganda 1995 as amended;

2. The Electoral Commission Act Cap 140;

3. The Presidential Elections Act, 2005;

4. The Parliamentary Elections Act;

5. The Parliamentary Elections Act, Cap 2005 as amended;

6. The Local Government Act Cap 243.;

7. The Civil Procedure Act, Cap 71;

8. The Presidential Elections (Election Petitions) Rules, 2001;

9. The Civil Procedure Rules S.I 71-1;

10. The Presidential Elections (Elections Petitions) Rules;

11. The Parliamentary Elections [Election Petitions) Rules;

12. The Constitution (Integration of ICT into the Adjudication Processes for Courts of
Judicature) (Practice) Directions, 2019.

DICTIONARIES.

The Black's Law Dictionary 8th Edition.

JOURNALS AND ARTICLES.

History of Parliament Archived 2010-02-20 at the Wayback Machine (Website of the

Parliament of Uganda).

Nelson Kasfir (1998). ""No-Party Democracy" in Uganda". Journal of Democracy. 9 (2):

49–63. doi:10.1353/jod.1998.0029)

WEBSITES.
https://en.wikipedia.org/wiki/President_of_Uganda

https://www.britannica.com/topic/pleading

29 | P a g e
LIST OF CASES
1. Kanyabwera versus Tumwebaze [ 20051 2 EA 86, at 93;
2. Twinomuriisa v Mugume (Miscellaneous Application 2127 of 2021)[2022]
UGHCLD 96 (04) February 2022;
3. Kyagulanyi Ssentamu v Yoweri Museveni Tibuhaburwa and 2 Others (Civil
Miscellaneous Application 1 of 2021) [2022] UGSC 9 (18 March 2021);
4. Nyanzi Fred Senta V Nsereko Mohammad, The Electoral Commission &
Returning Officer Kampala Central Election Petition Appeal No. 20 of 2021;
5. Mbabali fude v Electoral Commission Election Appeal No. 3 of 2006Besweri
Lubuye v Electoral Commission EPA No. 2 of 1999
6. Muhindo Rehema Vs Winfred Kizza and EC (Election Appeal No. 29 of 2011);
7. Mpanga v Ssenkubuge and Another (Election Petition 15 of 2021) [2021]
UGHCCD 112 (08 September 2021);
8. Dr. B.B Byarugaba v Kantarama (Civil Miscellaneous Application 229 of 2019)
[2020] UGHC 216 (29 April 2020);
9. Kiggundu vs. Kasujja [1971] HCB 164.Lalji vs. Devji [1962] EA 306;
10. UTC vs. Katongole [1975] HCB 336;
11. MB Automobiles vs. Kampala Bus Service [1966] EA 400; Owani vs. Bukenya
Salongo [1976] HCB 63;
12. Kanyabwera versus Tumwebwa [2005] 2 E.A 86;
13. Senkubuge and Another v Kibirango (Civil Miscellaneous Application 1704 of
2019)[2021] UGHCLD 108 (02 August 2021);
14. Rashida & Anor v Adrisi (Miscellaneous Civil Application 9 of 2019)[2017]
UGHCLD 29 (23 March 2017);
15. Kanyabwera v. Tumwebaze [2005] 2 EA 86 at 93);
16. Magombe v Electoral Commission and Another (Election Petition 19 of 2021)
[2021] UGHEP 19 (07 September 2021);
17. Ikiror Kevin v. Orot Ismeal, Election Petition Appeal No. 105 of 2016;
18. Muiya v. Nyagah and Others [2003]2 E.A 616 at P. 621;
19. Katongole Arthur v. Babirye Kityo Sarah and Electoral Commission, Election
Petition No. 003 of 2016;
20. Mandera v. Bwowe Election Petition Appeal No. 91 of 2016;
21. Mukasa Anthony Harris v. Dr. Bayiga Micael Philip Lulume, Election Petition
Appeal No. 18 of 2007;
22. Muhindo Rehema v. Winfred Kizza and Electoral Commission Election Petition
No. 29 of 2011;
23. Lumu v. Makumbi and Electoral Commission, Election Petition Appeal No. 109 of
2016
24. Sitenda Sebalu vs. Sam K. Njuba – SC Election Petition Appeal No. 26 of 2007;
25. Mukasa Anthony Harris v Bayiga Michael Philip Lulume SC Election Petition
Appeal No. 18 of 2007;
26. Magombe v Electoral Commission and Another (Election Petition 19 of 2021)
[2021] UGHCEP 19 (07 September 2021);

30 | P a g e
 27. Katongole Arthur v. Babirye Kityo Sarah and Electoral Commission, Election
Petition No. 003 of 2016;
28. Male Mabirizi v Attorney General Miscellaneous Application No. 918 of 2021;

31 | P a g e