Former contestant for the Kampala Central Parliamentary seat and National Unity Platform flag bearer Fred Nyanzi has laid out nine grounds in his appeal against a High Court decision dismissing his petition challenging the election of Muhammad Nsereko.
Nyanzi sued the Electoral Commission, the Kampala Returning Officer, and Nsereko over election irregularities including bribery. He filed his petition in March 2021 but while he served the first two respondents, he failed to serve Nsereko who he accused of dodging service.
However, the Electoral Commission which has been on Nsereko’s side for the whole time asked the court to dismiss the petition on grounds that it would beat the principles of justice if the case continued to trial when the third respondent is not served.
Justice Margaret Apiny dismissed Nyanzi’s petition last week after she ruled that Nyanzi had not personally served Nsereko and didn’t exploit available options like asking the court to extend the time for service such that he could serve him.
But, in his appeal filed on Wednesday, Nyanzi argues that Justice Apiny erred in law and fact by finding that Nsereko was not served. The petitioner adds that Justice Apiny was wrong when she ruled that leaving a copy of documents of service in a conspicuous place at the residence of Nyanzi didn’t meet the requirement of personal service.
Nyanzi had told the court during the hearing of the petition, that when he took documents of service to Nsereko and he declined to acknowledge receipt, he pinned them at the gate and took photos which be presented before the court, but Justice Apiny didn’t find this as personal service.
He also argues that Justice Apiny made a mistake when she ruled that all attempts to serve Nsereko through Parliament, his known residence, via WhatsApp and through the Chief Magistrate court in Mengo didn’t amount to personal service and also that she erred when she struck out Nyanzi’s petition from court records.
Court also failed to properly evaluate evidence that Nyanzi made all reasonable efforts to serve Nsereko and that she failed to rule that the petitioner instructed three law firms who filed a notice of appeal and appeared before the court hence waiving the right to be served.
In his appeal, Nyanzi also argues that Justice Phillip Odoki who ruled on his application for seeking to serve Nsereko through newspapers also erred in law and fact when he denied him alternative service despite adducing evidence that it was practically impossible to serve Nsereko personally.
Nyanzi, wants the court to set aside Justice Apiny’s ruling and that of justice Odoki and declare that there was effective service.