The High Court in Kampala has rejected a request by former parliamentary candidate Fred Nyanzi Ssentamu to use newspapers or the court notice board to serve the Kampala Central MP-Elect Muhammad Nsereko documents seeking to overturn his victory.
Nyanzi, a candidate of the opposition National Unity Platform lost the bid to Parliament to Nsereko in polls held on January 14. According to results released by the Electoral Commission, Nsereko, an independent candidate, polled 16,998 Votes, against Nyanzi’s 15,975 votes.
But Nyanzi challenged the outcome of the polls on grounds that the process was marred by irregularities. He cited the failure by the Electoral Commission to ensure that the tallying is done in accordance with Electoral laws, the failure by the presiding officers to submit results from seven polling stations, and inconsistencies in the number of votes presented on the declaration of result forms, among others.
Through his petition filed on March 10, 2021, Nyanzi asked the Court to overturn Nsereko’s victory on the basis of the same grounds. But on March 11, 2021, the court process server Nasser Lubega only succeeded in serving the other respondents; the Electoral Commission and the Returning Officer for Kampala Central yet for such petitions, parties can only be served within seven days after filing.
Lubega noted that he went to Parliament, his home at Old Kampala and at his personal office at William street, but could not find him. He added that he informed Nyanzi who later discovered through social media that Nsereko had travelled to Nairobi, yet on March 13, he was seen participating in a Television discussion via zoom from ccording to Nyanzi, all reasonable efforts were made to effect personal service to Nsereko without success. He, therefore, asked for substituted service such that a copy of the petition can be pinned on the court notice board and for an extension of time to effect service.
But the High Court Civil Division Judge Phillip Odoki said he was not satisfied that Nyanzi made reasonable efforts to look for Nsereko and failed. Justice Odoki noted that if the process server had indeed gone to parliament, to Nsereko’s home or his private office, he should have stated when he was there, which office he went to at Parliament, who he found there, and what exactly he was told about the whereabouts of the MP.
In his view, the process server should have sought Nsereko’s telephone number to enable him to locate Nsereko, but this was not the case. “I find that the affidavit of service, in this case, falls far short of the required standard that all reasonable efforts were made to effect personal service on the respondent but without success,” he said and added that the server was only convinced by social media which are always subject to manipulation.
However, Justice Odoki has granted him seven more days to look for Nsereko and serve him personally. On this, Odoki ruled that election petitions are matters of great Public importance and by not granting the prayer to extend time, it would have the effect of frustrating the hearing of the allegations Nyanzi levied against Nsereko as well curtail the MP-elect’s right to a fair hearing.
Nyanzi has said that Nsereko is playing hide and seek to frustrate litigants from going to courts.
Nyanzi is the first applicant to be denied permission to seek substituted service at the Kampala High Court. Recently, applicants such as Gaddafi Nassur who is seeking to overturn the victory of Denis Sekabira as the Katikamu North MP-Elect was permitted to serve him through the newspapers while Sulaiman Kidandala who lost the Kawempe North parliamentary race to Muhammad Ssegirinya was also permitted to serve him through Kitalya prison. URN