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Appeal court upholds Mtwara MP victory

"Having carefully considered this matter before us and arguments advanced by counsel for the appellant and respondents, we are of the settled view that indeed the appellant did flout the mandatory procedural requirements, thus making this appeal incompetent," a panel ruled.

 The panel, led by the Chief Justice Mohamed Chande Othman and Justices Mbarouk Mbarouk and Steven James Bwana noted that Mohamed Tibandenyera, counsel for the appellant, made visible efforts to bring the appeal into existence.

 "But unfortunately, he failed to convince us hold otherwise, other than to strike it out for being incompetent. We proceed to do so: strike out the purported appeal for being incompetent and award costs to the respondents," reads part of their ruling dated June 25, 2012.

 Other respondents in the appeal, apart from the MP, were Returning Officer, Mtwara Urban Constituency and the Attorney General. Their lawyers had asked the judges to turn down the appeal because it was time barred and that they were not served with the pleadings as required by law.

 According to the lawyers, non-compliance with the mandatory provisions of the Court of Appeal Rules denied them basic rights to know that they had an appeal pending against their clients and the kind of issues involved in the matter.

 Counsel for the appellant had admitted to the deficiencies in question, but requested the panel to waive technicalities so that the appeal could be heard on merits. He pointed out that his client was not represented at the High Court and being a layman he could not know legal procedures.

In their ruling, however, the judges said, "The well settled principle of law is that ignorance of the law is not an excuse. The appellant, therefore, cannot rely on that excuse to get his way."

They noted that the main purpose of a notice of appeal and, or serving the adverse party well in time before the hearing of the matter was to put both the court and parties on notice of the issue coming up and give the respondents opportunity to prepare for the pending issues.

 "Therefore, it is not known, under the constitution, laws and jurisprudence of our country, that an appellant would wait until parties come to court and then and there reveal the nature of his claims. To do so would again contravene the basic rights of the respondents," the judges said.

 Both Mr Abdallah and  Mr Mohamed were among several candidates who vied for the parliamentary seat in the general election held on October 31, 2010. Mr Mohammed was declared the winner. Dissatisfied with the results, Mr Abdallah petitioned the High Court, Mtwara Registry to nullify the result.

He advanced three grounds including denying him and his agents rights to be involved in the counting, adding and announcement of the results and that the results were delayed. But on October 18, 2011, High Court Judge Sekieti Kihiyo dismissed the petition for lack of proof.

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Author: FAUSTINE KAPAMA

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