Court rejects Kidandala’s application to recover Kitalya Prisons visitors’ books
Kampala, Uganda | THE INDEPENDENT | The High Court in Kampala has dismissed an application in which the loser of Kawempe North Parliamentary race Sulaiman Kindandala wanted an order to recover the visitors’ books from Kitalya Government’s Prison to confirm that he served his rival Muhammad Ssegirinya.
Court presided over by Lady Justice Henrietta Wolayo has dismissed the application on grounds that court should not be used by any party to fish evidence in support of their case.
She explained that by the time the party comes to court must have evidence in support of his or her case but not to use court to gather evidence as it would not be impartial.
Kidandala through his lawyers; Caleb Alaka, Samuel Muyizzi Mulindwa and Kenneth Paul Kakande asked court to compel Prisons authorities to produce the registration books at the main gate and the quarter guard for April 1st 2021.
They argued that they went to prison to serve Ssegirinya the election petition but neither him nor the Deputy officer in charge of Kitalya prison Fred Mugiya acknowledged receipt of the document.
Electoral Commission through their lawyer Eric Sabiiti said that there was no evidence to show that Ssegirinya and the Prisons Officer had refused to acknowledge receipt.
Earlier, the same court rejected an application by Salim Sserunkuma who came fourth in the Kawempe North race to join Kidandala’s petition against Ssegirinya.
Justice Wolayo dismissed Sserunkuma’s application with costs agreeing with the submissions of Electoral Commission and Kidandala’s lawyers who opposed the application saying that the application is alien and unknown in Uganda’s jurisprudence.
The Judge also agreed that Sserunkuma didn’t demonstrate the special circumstances as to why he failed to join the case during the stipulated time of 30 days after gazetting Ssegirinya as the winner of the elections.
Immediately after dismissing these two applications, the Judge embarked on hearing a third application filed by the Electoral Commission seeking to dismiss the entire petition on grounds of non-service.
Court heard from EC’s lawyer Sabiiti that Kidandala’s lawyers got an order for substituted service to Ssegirinya but did not comply with it.
According to Sabiiti, Court had ordered that Ssegirinya who was at Kitalya Government’s Prison should be served with the petition in the presence of the Officer in Charge.
He further submitted that court ordered that a copy be put on its notice board. However, Sabiiti argued that Kidandala’s lawyers never complied with the former order and that there is no evidence to show that the Officer in Charge witnessed service as ordered.
According to Sabiiti, whereas the petitioner’s lawyers complied with putting the copy on the court notice board, one cannot choose which order to abide with and which one to ignore.
He thus asked court to dismiss the petition as a whole arguing that orders of court are supposed to be complied with.
However, on this issue, Kidandala’s lawyers maintained that one of them Fred Kato effected service and the proof of service required in law is by way of affidavits of service which they did.
Now the Judge has fixed September 7th 2021 to decide whether to dismiss the entire petition or to start hearing it.
Kidandala sued Electoral Commission and Ssegirinya for lack of minimum academic qualifications to be in Parliament which is the Certificate of Advanced Level of Education or its Equivalent.
Speaking to journalists after the session, EC lawyer Sabiiti has welcomed the decision to dismiss the two applications.