ALLIANCE for Change and Transparency-Wazalendo has lost the petition lodged before the High Court's Kigoma District Registry to challenge the election of Mr Nashon Bidyanguze of ruling CCM, as Member of Parliament for Kigoma South Constituency.
This followed the decision by Judge Ilvin Mgeta to hold that Mr Bakema Rashid, who was candidate for the parliamentary seat under ACT-Wazalendo, lodged his election petition out of time against Election Rules, which requires the petition to be filed within 30 days from the date of declaration of the results.
Judge Mgeta noted that the election petition was lodged electronically on November 30, 2020 at 19.21 hours.
He said that there was no dispute that according to rule 21 of the Electronic Filing Rules, the last time for filing a document in a day is before midnight of that day.
"It is a fact that the results were declared on October 30, 2020. Thirty days expired on November 28, 2020. By the above rule, read together with 8 (1) of the Election Rules, the petition filed on November 30, 2020 at 19.21 hours was filed out of time for two days," the judge ruled.
There was an argument by the counsel for the petitioner that the practice to deem the document filed upon payment of court fees is not applicable when the document is filed electronically under the Electronic Filing Rules.
In his ruling, however, the judge pointed out that in the light of rule 8 (1) of the Election Rules, the argument of the counsel for the applicant that filing of the documents electronically does not include payment of fees is untenable.
"In view of the finding that the time expired on November 28, 2020, this argument is no longer necessary. It no longer matters whether fees were paid timely or not. However, it is compelling to deal with it due to its jurisprudential value," the judge said.
He was of a settled view that the Electronic Filing Rules has not misapplied any rule of procedure including rule 8 (1) of the Election Rules which provides that filing includes payment of fees and the general practice as found in case law.
To his knowledge, the registry practice on filing documents is that even when documents are filed electronically, they are attended during office hours where the Deputy Registrar approves them for payment of fees; a bill is generated and sent to the client for payment in form of a control number.
This mode of payment is still in practice as the Chief Justice has not prescribed a new mode of payment under rule 34 of Electronic Filing Rules for purposes of the electronic filings.
Therefore, when a party files a case electronically he or she must file it within office hours and pay court fees," he said.
According to some documents filed in court by Mr Rashid, the Returning Officer for Kigoma South Constituency declared the results on October 30, 2020 where Mr Bidyanguze garnered 36,493 votes.
In the elections, the applicant got 17,222 votes. There were other candidates from other political parties who also participated in the elections.
They include Evarist Gregory from Chadema who got 2,476 and Daniel Ntaondenga of ADA Tadea, who got 297 votes.
Others with the votes they got in brackets are Ahamad Machali of CCK (438), Ibrahim Ntagalungwe from CUF (548), Hussein Masanga of NCCR-Mageuzi (4,380) and Nuru Bashange from UMD (157).
The votes cast were 63,493, the valid votes were 62, 014 and the spoiled ones were 1, 479.
The applicant filed electronically the petition on November 30, 2020, at 19.21 hours, for avoidance of election results for Kigoma Kusini Constituency in the 2020 general election held on October 28, 2020.
As the petition was filed after close office hours, the Deputy Registrar attended it on December 1, 2020, and declared that since no bill could be generated and paid in time, he rejected the petition for being filed out of time.
The applicant decided to take the matter to the judge to oppose such a decision.