By Farooq Kasule
A loser in the Kampala Central MP election, Fred Nyanzi Ssentamu, has asked court to allow his appeal against the incumbent MP, Muhammad Nsereko, despite failure to serve him with the petition.
On Tuesday, March 22, Nyanzi through his lawyer, Justin Semuyaba, told court presided over by justices Geoffrey Kiryabwire, Stephen Musota and Christopher Gashirabake that all efforts to serve Nsereko with the petition were futile.
Nyanzi is a brother of National Unity Platform (NUP) president Robert Kyagulanyi Ssentamu.
In his submission, Semuyaba asked the justices to invoke the provisions of rule 78(1) of the Court of Appeal rules and directions to proceed and determine the case ex parte or grant him permission to make substituted service (advertise summons in newspapers) against Nsereko.
“My lords, we failed to locate Nsereko and his known lawyers on court record refused to receive the petition and in the lower court. Justice Philip Odoki declined to grant our application for substituted service and that is why we are in this court for a remedy,” Semuyaba submitted.
Citing the case of Julius Okui vs Moses Kirunda, in which the Court of Appeal proceeded with hearing and determination of a case when one of the parties was not a party to the proceedings in the lower court, Semuyaba invited the court to apply the same authority so that justice prevails.
“My lords, we filed the written submissions and the Electoral Commission also filed its written submissions, we pray that the appeal is allowed,” Semuyaba submitted.
Justice Kiryabwire, however, faulted Nyanzi’s lawyers for failing to institute disciplinary action at the Law Council against Nsereko’s lawyers for failure to receive court documents yet they are officers of courts of judicature.
High Court Judge Margaret Apinyi dismissed the petition on grounds that Nyanzi failed to prove that he served Nsereko with the notice of presentation of the petition as required by the law.
Nyanzi contends that after thorough computing of the results for all candidates, invalid votes and unused ballot papers, he found out that a total of 2,577 votes were not reflected in the final tally.
Court records indicate that Nsereko polled 16,998 while Nyanzi emerged second with 15,975 votes.
By 9:00am, Nyanzi was already in the courtroom and after the proceedings at around 10:45am, he said he was optimistic that justice would be served.
“I cannot say much, but I am hopeful that we shall get justice,” Nyanzi said.
The same justices also heard the appeal in which the Electoral Commission and embattled Aruu South MP Christopher Komakech seeks to have a High Court decision overturned.
High Court Judge Tadeo Asiimwe ejected Komakech from Parliament and ordered the electoral body to organise a fresh election on grounds that he did not duly resign before competing for the seat.
Komakech was an employee at Butabika Hospital, but his rival Odonga Otto insists that his resignation letter was addressed to the executive director of the hospital instead of the Ministry of Health permanent secretary as required by the Public Service Standing Orders.
Both parties asked the court to adopt their respective written submissions in order to render its decision.