The High Court in Kampala yesterday dismissed an election petition that was challenging the election of Kampala Central MP Muhammad Nsereko for non-service.
Justice Margaret Apiny in her ruling held that Mr Nsereko was not served with the petition as claimed by the petitioner, Mr Fred Nyanzi, of Opposition National Unity Platform (NUP) party.
“Having found that the 3rd respondent (Mr Nsereko) was not served, it, therefore, follows that the petition is incompetent and as such, must be struck out,” ruled Justice Apiny.
“Consequently, election No 02 of 2021 is hereby, struck out for lack of service upon the 3rd respondent (Mr Nsereko). Each party bears its costs,” the judge further ruled.
With yesterday’s ruling, it means Mr Nsereko (Independent), is still the validly elected MP for Kampala Central.
Justice Apiny observed that in her considered view, the attempts to serve Mr Nsereko at Parliament, at Chief Magistrates Court of Mengo, at his Bugolobi residence without success and even on his WhatsApp, did not amount to personal service envisioned under Rule 6 (3) of the Parliamentary Elections Rules.
Mr Nyanzi is the elder brother of NUP leader Robert Kyagulanyi, aka Bobi Wine.
Court documents show Ms Jackline Mirembe, a process server, went to MP Nsereko’s home in Bugolobi to serve him with a copy of the poll petition as required by law.
Ms Mirembe says upon reaching there, she was chased away on grounds that she was a trespasser and that when she attempted to affix a copy of the petition onto his gate, she was still denied by the police officer.
Further, court documents revealed that Ms Mirembe proceeded to Parliament where MP Nsereko works and also left there a copy of the petition with the Speaker’s office and other copies with the secretary to the Speaker, only identified as Joyce, who telephoned Mr Nsereko to come and pick a copy, but he allegedly refused.
She also told court that on April 13, upon checking Mr Nsereko’s WhatsApp number, she found out that the said number was online, which prompted her to send a cover of the court documents, which message she said, was received as evidenced by the blue tick.
But according to the judge, it was her finding that personal service on MP Nsereko was not effected by Mr Nyanzi as directed by the court despite the aforementioned attempts.
Ms Mary Tumushabe, the LC1 of Bugolobi (where Mr Nsereko stays), also told court that she was approached by the court process server on April 14 and acknowledged receipt of the petition against Mr Nsereko and proceeded to his residence to serve him.
She added that after leaving Mr Nsereko’s home, a police officer went to her home on instructions of Mr Nsereko and warned her to stay away from election matters.
The lawyers representing the Electoral Commission (EC) had argued that no evidence was presented to prove that the home in question belongs to Mr Nsereko and that the bangalore village referred to as his place of stay, is non-existent.
The returning officer declared Mr Nsereko winner of the January 14 election with 16,998 votes against Nyanzi’s 15,975.
But being dissatisfied with the outcome, Mr Nyanzi petitioned court on grounds that the elections were not conducted in accordance with electoral laws.
However, when the matter came up for counsel hearing on August 23, the EC raised a preliminary point of law on the competence of the petition that was before court on account of non-service on Mr Nsereko.
Counsel Justine Ssemuyaba represented Mr Nyanzi while Mr Eric Sabiti and Mr Hamidu Lugoloobi represented the EC.
The EC lawyers argued that Mr Nsereko was not served with a copy of the election petition as demanded by Section 62 of the Parliamentary Elections Act of 2005, making Mr Nyanzi’s petition mute.
This is the second petition in less than a fortnight to be dismissed on technicality over non-serve.
On September 7, Kampala High Court dismissed a poll petition that was challenging the election of Kawempe North MP Muhammad Ssegirinya on academic grounds.
The petition was dismissed by Justice Henrietta Wolayo over non-service without going into the merits of the petition.