The High Court in Kampala on Tuesday dismissed a petition that was challenging the election of Kawempe North MP, Mohammed Ssegirinya.
The ruling arose out of an application by the Electoral Commission, in which it had sought dismissal of runners up Sulaiman Kidandala’s petition citing failure to serve Ssegirinya with the same petition as required by the law.
Justice Henrietta Wolayo reasoned with the Electoral Commission that there is no proof to show that Ssegirinya who was incarcerated at Kitalya prison was served with the petition by Kidandala’s lawyers.
The judge said that service was supposed to be done through the Officer in Charge of Kitalya prison but evidence shows it was not done.
“The evidence in the affidavit of service that prove service on the officer in charge is his or her written endorsement on the petition that he or she has received the petition. The fact that the officer in charge, Felix Mugiya has denied witnessing the service on the petitioner makes it even more imperative that the only proof of service on him would have been his signature,” Justice Wolayo said.
Kidandala’s lawyers had argued that they had proceeded to Kitalya and on seeing the process server; Ssegirinya refused to receive the petition without his lawyer and consequently hid himself.
The lawyers however insisted they had served him through the deputy Officer in charge of the prison; Felix Mugiya whom they said had not endorsed anywhere but had seen the process server.
They insisted that by appearing at Kitalya and talked to both Mugiya and Ssegirinya was enough to prove the latter had been served with the petition challenging his election.
However, in her ruling, Justice Wolayo said the arguments by Kidandala’s lawyers held no water since they were not backed by any evidence.
“Unfortunately, the evidence of service is the word of the process server against the denial by the OC of any service. An examination of the affidavit of service of Fred Kato(process server) shows that his focus was on the respondent(Ssegirinya) in the petition and at no point did he mention an attempt to require the OC to endorse the petition and stamp it with the official stamp as duly served,” she said.
According to the judge, even if Ssegirinya had not been served personally, only the OC for Kitalya prison endorsing the petition was enough to prove service.
“This means that even if the process server did visit the prison, he didn’t effect service in the manner ordered by court.”
The judge said in order to ensure full service in such scenarios, Kidandala’s lawyers had to serve prisons authorities in Kitalya where Ssegirinya was incarcerated but also pin the petition on the court’s notice board.
Unfortunately, the judge said Kidandala’s lawyers focused on mostly pinning the petition on the court’s notice board which she said was not enough to constitute sufficient service.
“In summary, having found that the OC didn’t endorse the notice of presentation of the petition, there was ineffective service. In the premises, the petition is rendered redundant for non-service and is struck off the record,” Justice Wolayo said.
