Lawyers representing Sulaiman Kidandala have asked court to throw out an application in which the Electoral Commission seeks to have his petition challenging the election of Muhammad Ssegirinya as Kawempe North MP dismissed.
On Friday, the EC lawyers led by Eric Sabiiti told court that since Ssegirinya was never served with documents to show that his election is being challenged; the petition automatically fails and should be dismissed even before being heard.
In its arguments, the EC says there is no evidence to show that Kidandala’s lawyers served Ssegirinya with a copy of the petition challenging his election since he was in prison by the time the petition was filed.
“It’s not true that I witnessed the service of the notice of presentation of the petition on Ssegirinya Muhammed and that he refused to sign on them after reading through as alleged or that the documents were left at the prison,” says an affidavit by Felix Mugirya, the deputy officer in charge of Kitalya prison where Ssegirinya was kept.
However, speaking in response, Kindandala’s lawyers including Kenneth Paul Kakande, Caleb Alaka and Sam Muyizi insisted that the Electoral Commission application holds no water since Ssegirinya was served while in prison at Kitalya.
“On April,1, 2021 upon reaching Kitalya , our process server displayed the court order to have Ssegirinya served with the petition. The server was shown the office of the OC where he met the deputy OC. Ssegirinya was called but he said he could not receive the petition without his lawyer,” Sam Muyizi told court.
“We submit that you should find our arguments valid that we dispensed our duty to serve Segirinya in prison through the deputy Officer in Charge of Kitalya but he declined to endorse on the copy served upon him.”
The lawyers insisted that unlike ordinary civil matters where the respondent or the officer in charge of prison is required to append signature to confirm receipt of the documents, in the instant case, the mere fact of receiving even without acknowledging receipt is enough to show that the respondent was served.
“In ordinary matters, the OC is required to endorse receipt but in the instant case, the role the OC had to play was to enable service of the respondent (Ssegirinya). The OC witnessed the service but the only problem is how far the server went after the recipient(Ssegirinya) declined to receive it and the OC didn’t acknowledge. In our opinion, the intended substituted service was achieved,”Muyizi said.
Kidandala’s lawyers also told court that they also pinned the petition on the court’s notice board as is the procedure in case of substituted service where the respondent is nowhere to be seen.
“I pray that you find our arguments believable,” Caleb Alaka told court.
Justice Henrietta Wolayo set Tuesday, September, 7 as the date to give her ruling in the matter.
If the judge reasons with the Electoral Commission arguments, the petition by Suleiman Kidandala challenging Muhammad Ssegirinya election as Kawempe North MP will be dismissed.
However, on the other side, if the application by the Electoral Commission is dismissed, court will continue to hear the petition in which Kidandala accuses Ssegirinya of not having the requisite academic documents to qualify as an MP.
The Parliamentary Elections Act of 2005 requires all prospective aspirants for positions of the Member of Parliament to have completed a minimum formal education of advanced level standard by UNEB or its equivalent.
Earlier this year, UNEB disowned Ssegirinya saying his name doesn’t appear anywhere in their records.
“We have checked in our records and our findings are as follows; Candidate U005/054(2017) is Nampiima Sarah who sat at Mengo secondary school not Ssegirinya Richard sitting at Pimbas secondary school.The candidate U005/754 is Nabadda Maureen who sat at Mengo Secondary school not Ssegirinya Richard at Pimbas secondary school,” UNEB said in March 17, 2021 communication.