Abaho and Another v Kampala Capital Authority and 2 Others (Misc Cause 125 of 2023) [2024] UGHCCD 101 (31 May 2024)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS CAUSE NO. 125 OF 2023**

**1. AMON ABAHO 2. KATO JACKSON ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS VERSUS 1. KAMPALA CAPITAL CITY AUTHORITY 2. JOAN OBONG 3. MARY SSERWADDA :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **BEFORE: HON. JUSTICE BONIFACE WAMALA**

## **RULING**

### **Introduction**

[1] This application was brought by Notice of Motion under Section 36(1)(b), (c) (2) & (3) of the Judicature Act and Rule 6(1) of the Judicature (Judicial Review) Rules, 2009 seeking for the following reliefs;

a) A declaration that the permission granted by the 1st Respondent to the 2nd and 3rd Respondents to return to Bugolobi market and continue collecting rent as well as managing shops occupied by the Applicants is ultra vires the Market Act, 2023;

b) A declaration that the omission by the 1st Respondent's Executive Director to constitute an Allocation Committee and also set market fees is ultra vires the Market Act, 2023;

c) An order of Certiorari doth issue against the 1st Respondent, its agents, employees, or servants quashing the impugned decision granting permission to the 2nd and 3rd Respondents to continue managing lock up shops in Bugolobi market and collecting rent from the Applicants;

d) An order of Mandamus doth issue against the 1st Respondent's Executive Director compelling her to carry out her statutory duty and constitute an Allocation Committee for purposes of allocating the Applicants shops 9C and 13A that they occupy as existing vendors;

e) An order of Prohibition and permanent injunction doth issue against the 2nd and 3rd Respondents, their agents, or servants restraining them from further collection of rent, managing and eviction of the Applicants from the lock up shops 9C and 13A in Bugolobi market;

f) An order for the award of general and punitive damages.

g) An order for payment of the costs of the application.

[2] The grounds upon which the application is based are summarized in the Notice of Motion and also set out in the affidavits in support of the application deposed by **Amon Abaho**, the 1st Applicant and **Kato Jackson**, the 2nd Applicant. In his affidavit, the 1st Applicant stated that he is an existing vendor in Shop No. 9C in Bugolobi market operating a retail shop selling batteries and other accessories from which the 2nd Respondent has been collecting a monthly rent of UGX 250,000/=. He stated that due to constant oppression by the absentee/pseudo or illegal landlords, the President of the Republic of Uganda intervened in public market affairs and directed that the Government through Kampala Capital City Authority and other local authorities should take over management of the markets. The President's directive was operationalised by the passing of the Markets Act, 2023 whose purpose was to provide for the establishment, management and administration of public as well as private markets which included the registration of vendors, determination and collection of market fees.

[3] The deponent averred that the Act abolished private arrangements of landlord-tenant and vested full authority to manage public markets in an administrative authority. He averred that contrary to the new Act, the 1st Respondent granted permission to the 2nd and 3rd Respondents to continue collecting rent and managing shops in Bugolobi market yet they are not the administrative authority of the market. He further averred that the 1st Respondent has also omitted to constitute an Allocation Committee for purposes of outlining, designating and allocating work spaces, shops, pitches and stalls in Bugolobi market. The deponent averred that upon enactment of the new law, he abandoned any previous arrangements that would be unlawful under this new legal regime and engaged the 1st Respondent and other local authorities for purpose of full compliance with the law. He stated that in retaliation, the 2nd Respondent has on multiple occasions attempted to evict him through placing padlocks on his shop and publicly humiliating him contrary to the new legal regime. He concluded that the 1st Respondent acted illegally (ultra vires) and irregularly when it granted permission to the 2nd and 3rd Respondents to continue collecting rent and managing lock ups in the market in contravention of the Markets Act.

[4] The 2nd Applicant, **Kato Jackson**, stated that he was an existing vendor in Shop No. 13A in Bugolobi market where he operates a mobile money and Agency Banking business from which the 3rd Respondent has been collecting UGX 500,000/= per month; which she increased to UGX 600,000/= from May 2023. In other respects, the 2nd Applicant reiterated the same facts and grounds as contained in the affidavit in support of the application by the 1st Applicant.

[5] The 1st Respondent opposed the application through an affidavit in reply deposed by **Dr**. **Musunga David**, the 1st Respondent's Deputy Director Production and Marketing in the Directorate of Gender, Community Services and Production. The deponent stated that the application is incompetent on account that it arises from a purely contractual dispute between the Applicants and the 2nd and 3rd Respondents; and is not a proper case for judicial review. He stated that Bugolobi market is currently under general management of the 1st Respondent with a running lease acquired from Kampala District Land Board in 2020. He stated that a full takeover of the administration and management of Bugolobi market is pending compensation by the Central Government of those who invested in its redevelopment. It would be unconstitutional to compulsorily acquire another person's property before prompt payment of fair and adequate compensation prior to taking possession or acquisition. He further averred that the Markets Act 2023 gives a three -year period for markets established under the old Markets Act Cap 94 to comply with the new Act. He also averred that the 1st Respondent does not control the collection of rent or management of the lockup shops belonging to the 2nd and 3rd Respondents in Bugolobi Market. He concluded that it is not illegal for the 1st Respondent to appoint a person to collect market dues on its behalf.

[6] The 2nd Respondent, **Joan Obong**, opposed the application and stated that she is an existing vendor allocated lock-up shop No. 9C who was approached by the 1st Applicant in September 2021 with a request to sublet him her lockup shop. She agreed to let him the shop at a monthly rate of UGX 250,000/= which he paid until December 2022 when he started defaulting. She stated that the Markets Act 2023 did not outlaw existing contractual arrangements between the 1st Respondent and existing vendors such as the 2nd Respondent and neither did it abolish the requirement to pay rent in public markets. She averred that the Applicants just want to avoid, or delay paying rent or use the passing of the Markets Act to push her out of her Lock-up shop that was lawfully allocated by the 1st Respondent over 24 years ago. She concluded that the 1st Respondent has not acted illegally in allowing the 2nd and 3rd Respondents to continue collecting rent from the Applicants.

[7] The 3rd Respondent, **Mary Sserwadda**, also opposed the application and stated that she is the rightful allocattee of lock up shop No. 13A in Bugolobi Market which she has held unchallenged for a period of over 25 years. She stated that on 1st July 2016, she executed a tenancy agreement with the 2nd Applicant who has over the years paid without any complaint until 30th June 2023. She averred that the Markets Act never abolished the landlord-tenant relationship and there is no decision to warrant judicial review since the relationship between her and the 3rd Applicant is contractual. She further averred that the Markets Act cannot operate retrospectively to jeopardise her ownership interests and she cannot be deprived of her property without due process and compensation.

[8] Both Applicants filed affidavits in rejoinder whose contents I have also taken into consideration.

# **Representation and Hearing**

[9] At the hearing the Applicants were represented by **Mr. Kiiza Mark** from M/s Origo Advocates while the 1st Respondent was represented by **Mr. Denis Byaruhanga** on brief for **Mr. David Oyo** from the Legal Department of the 1st Respondent; the 2nd Respondent was represented by **Mr. Ferdinand Musimenta** from M/s S&L Advocates; while the 3rd Respondent was represented by **Mr. Ojambo Robert** and **Mr. Bernard Mugeni** from M/s Ojambo & Ojambo Advocates. It was agreed that the hearing proceeds by way of written submissions which were duly filed and have been taken into consideration in the determination of the matter before Court.

# **Issues for determination by the Court**

[10] Three issues were agreed upon for determination by the Court, namely;

- *a) Whether the application is amenable for judicial review?* - *b) Whether the application raises any grounds for judicial review?* - *c) Whether the Applicants are entitled to the reliefs claimed?*

### **Resolution of the Issues**

# **Issue 1: Whether the application is amenable for judicial review? Submissions by Counsel for the Applicants**

[11] Counsel for the Applicants cited Rule 7A (2) of the Judicature (Judicial Review) (Amendment) Rules 2019 to the effect that an application is amenable for judicial review where the court is satisfied that the decision making body or officer did not follow due process in reaching a decision or that it was unfair and unjust. Counsel cited the case of *Birimbo Aaron v Uganda Human Rights Commission, HC Misc. Cause No. 76 of 2022* to the effect that for an application to be amenable to judicial review two requirements need to be satisfied; firstly that the body under challenge must be a public body whose activities can be controlled by judicial review; and secondly, that the subject matter of challenge must involve claims based on public law principles and not the enforcement of private law rights. Counsel submitted that the actions of the 1st Respondent of permitting the 2nd and 3rd Respondents to collect rent in Bugolobi Market are contrary to Sections 24, 25 and 26 of the Markets Act 2023 and that the omission by the 1st Respondent's Executive Director to establish an Allocation Committee to reallocate the lock ups, stalls and work spaces in accordance with the criteria set out in the Markets Act are acts of a public body committed in the exercise of its powers.

[12] Counsel further disputed the claim by the Respondents that no decision had been made that was subject of judicial review and argued that judicial review is not only concerned with the decisions of public bodies but also their acts and omissions. Counsel argued that the failure by the 1st Respondent to implement the Markets Act 2023 are acts and omissions amenable to judicial review. Regarding the contention that the application is premature on account of a three-year grace period within which to comply with the Act, Counsel submitted that the implementation of the Markets Act 2023 has already started and the Minister of Kampala issued guidelines/directives dated 23rd May, 2023 on matters to do with revenue collection in the Markets thereby demonstrating a change in government policy.

[13] Counsel also disputed the contention that the instant application arises from a purely contractual dispute and argued that the acts and omissions complained of by the Applicants are not anchored on contractual obligations but on the Markets Act 2023. Counsel argued that the remedies sought of setting market fees and constitution of an Allocation Committee are not contractual remedies intended to only benefit the Applicants but are enjoyed by the public at large.

#### **Submissions by Counsel for the 1st Respondent**

[14] Counsel for the 1st Respondent submitted that the instant application is premature as regards the implementation of the Markets Act 2023 and the presidential directives on account that the 1st Respondent has appointed a market master for Bugolobi Market. Counsel submitted that section 37(b) of the Markets Act 2023 gives a three-year period for markets established under the old Markets Act to comply with the new Act and that a full takeover of the management of markets in Kampala is pending compensation by the central government and it would be illegal and contrary to Article 26(2) of the Constitution for the 1st Respondent to compulsorily acquire shops belonging to private individuals without first compensating them. Counsel argued that the omissions complained of do not make the instant application amenable to judicial review. Counsel further argued that the underlying issue in the application is contractual between the Applicants and the 2nd and 3rd Respondents regarding enforcement of private rights and has nothing to do with public law matters. Counsel concluded that the instant application is not amenable for judicial review. ## **Submissions by Counsel for the 2nd Respondent**

[15] Counsel for the 2nd Respondent cited the case of *Birimbo Aaron v Uganda Human Rights Commission, HCMC No. 76 of 2022* to the effect that for an application to be amenable to judicial review, the body under challenge must be a public body, the subject matter of challenge must involve claims based on public law and not the enforcement of private law rights. Counsel submitted that the instant application is not amenable to judicial review on account that the dispute between the Applicant and the 2nd and 3rd Respondents is private in nature, that the application is prematurely before Court and that there is no decision being challenged. Counsel further submitted that Applicants filed the application six weeks after the passing of the Act, did not attach any decision rendered by the 1st Respondent and that the Applicants had voluntarily entered into contractual arrangements with the 2nd and 3rd Respondents, wherein they agreed to pay rent in exchange for using the Lock-up shops; an arrangement that was lawful under the Markets Act Cap. 94 and is lawful under the current legal regime albeit with a requirement for consent from the 1st Respondent.

## **Submissions by Counsel for the 3rd Respondent**

[16] Counsel cited the case of *Andrew Kilama Lajul v Uganda Coffee Development Authority, HCMC No. 270 of 2019* to the effect that judicial review is concerned with the decision making process of public bodies and that it is exercised by courts to ensure that public powers are exercised in accordance with the basic standards of legality, fairness and rationality. Counsel argued that the Applicants have failed to prove that there was any procedure that was taken to arrive at the alleged decision by the public body which they were part of and that their rights and interests were affected. Counsel submitted that judicial review does not arise in the instant case because there was no procedure and decision reached by the public body and there is no public law matter since the relationship between the Applicants and the 2nd and 3rd Respondents is governed by private law.

## **Determination by the Court**

[17] Rule 7A of the Judicature (Judicial Review) (Amendment) Rules, No. 32 of 2019 lays down the factors that have to be considered by the court when handling applications for judicial review, as follows;

*"Factors to consider in handling applications for judicial review*

- *(1)The court shall, in considering an application for judicial review, satisfy itself of the following-* - *(a)That the application is amenable for judicial review* - *(b)That the aggrieved person has exhausted the existing remedies available within the public body or under the law, and* - *(c) That the matter involves an administrative public body or official*."

[18] It follows, therefore, that for a matter to be amenable for judicial review, it must involve a public body in a public law matter. The court must be satisfied; first, that the body under challenge is a public body whose activities can be controlled by judicial review; and secondly, the subject matter of the challenge must involve claims based on public law principles and not the enforcement of private law rights. See: Ssekaana Musa, Public Law in East Africa, P.37 (2009) Law Africa Publishing, Nairobi. As such, it is a requirement that the right sought to be protected is not of a personal and individual nature but a public one enjoyed by the public at large. In that regard, the duty of an applicant in an application such as this is to satisfy the court on a balance of probabilities that the decision making body or officers subject of his /her challenge did not follow due process in making the respective decisions or acts and that, as a result, there was unfair and unjust treatment of the applicant and which is likely to have an effect on other members of the public.

[19] Rule 3(e) of the Judicature (Judicial Review) (Amendment) Rules defines a public body. It is not in dispute that the 1st Respondent is a statutory corporation/authority established under the Kampala Capital City Authority Act 2010. Under section 5(2) of the KCCA Act 2010, the 1st Respondent Authority is described as a body corporate with perpetual succession and may sue or be sued in its corporate name. The 1st Respondent is, therefore, a public body that is capable of being sued for any actions, omissions or decisions made in the course of executing its statutory duties. It follows that a matter challenging its decisions, actions or omissions would be a public law matter and thus subject to judicial re view.

[20] Regarding the contention that there was no decision taken by the 1st Respondent that could be a subject of judicial review, the answer is to be found by looking at the definition of judicial review under rule 3 of the Judicature (Judicial Review) (Amendment) Rules 2019 which clearly indicates that judicial review means "a process by which the High Court exercises its supervisory jurisdiction over proceedings and decisions of … bodies or persons … who are charged with the performance of public acts and duties". According to Section 2(b) of the Interpretation Act Cap 3, "words which refer to acts done extend to illegal omissions". It is alleged in the present case that the 1st Respondent has allowed the 2nd and 3rd Respondents to continue charging and collecting rent in contravention of cited provisions of the law. It is further alleged that the 1st Respondent has omitted to put in place an allocation committee as directed by the said law. The point here is not whether those allegations are made out on evidence. Rather, it is whether the said allegations, if true, would constitute actions or omissions of a public body that are subject to judicial review. Judicial review is directed, among others, against proceedings and decisions of public bodies. In law, decisions may be manifested by actions or omissions. Not making a decision over a particular matter is itself a 'decision not to act'. As such, the above alleged act and omission on the part of the 1st Respondent would ideally amount to decisions that are challengeable by way of judicial review.

[21] It was further argued by the Respondents that the subject matter of the dispute is a private matter arising out of tenancy agreements between the Applicants on the one hand and the 2nd and 3rd Respondents on the other. As shown above, the Applicants' challenge is, among others, directed to the action of the 1st Respondent of allowing the 2nd and 3rd Respondents to continue collecting rent in a public market. This is a challenge directed at the action of a public body and is not a civil action over payment of rental dues. The addition of the 2nd and 3rd Respondents is in line with the legal requirements since a decision affecting the two said Respondents cannot be made by the Court without hearing them.

[22] It was also argued for the Respondents that the Applicants did not exhaust the existing remedies available within the public body or under the law. In law, such remedies must be shown to be in existence and effective enough to the applicant before taking out judicial review. See: *Leads Insurance Co. Ltd v Insurance Regulatory Authority, CACA No. 237 of 2017*. In this case, it was argued for the Respondents that the application was premature for having been filed before the expiration of the 3-year grace provided for under the Markets Act 2023 for compliance with the Act. *Section 37(b) of the Markets Act 2023 provides as follows;*

*"Any market established under the Markets Act, Cap 94 and existing immediately before the coming into force of this Act shall … within three years of the coming into force of the Act, comply with the provisions of this Act"*.

[23] The above provision envisages a transitional period of three years within which the arrangements in the existing markets ought to comply with the new Act. As such, where an arrangement was existing in a public market and was recognized by the 1st Respondent, the stakeholders were given a grace period of three years within which to ensure that such arrangements are brought into compliance with the new law. The lawfulness of any such arrangement cannot therefore be measured using the 2023 Act; rather by basing on the law that was in place before the coming into force of the new Act. Therefore, in as far as the present application is based on enforcement of the Markets Act 2023 over matters that are covered by the transitional provisions, the application is prematurely before the Court.

[24] Looking at the matter raised by the Applicants, the two allegations based on the ground of illegality are that the 1st Respondent has illegally permitted continued collection of rent by the 2nd and 3rd Respondents and that the 1st Respondent has failed to constitute an allocation committee as stipulated under the Act. The ground based on procedural impropriety is that the President's directives of 17th November 2022 and the Minister's implementation guidelines dated 23rd May 2023 created a legitimate expectation that revenue collection in Bugolobi Market was only going to be undertaken by the 1st Respondent's staff and not the 2nd and 3rd Respondents. It is stated by the Applicants that it was their expectation that upon enactment of the Markets Act 2023, they would be allowed to continue vending in the lock up shops until an allocation committee was constituted and the market fees set by the 1st Respondent.

[25] In view of my finding regarding the effect of the transitional period, the Applicants cannot base a legal action over matters that have expressly been permitted by Parliament under an Act of Parliament. It is not part of the Applicants' claim before this Court that the existing arrangement in Bugolobi Market was illegal before the coming into force of the new law; and the Applicants are not asking this Court to set aside the existing arrangement based on the Markets Act Cap 94. Rather, they are asking the Court to find illegality and procedural impropriety based on the Markets Act 2023. But Parliament has expressly provided for a grace period within which all existing arrangements will have to get into compliance with the provisions of the new law. Contrary to the insistence by Counsel for the Applicants, this statutory enactment cannot be varied or ignored by the Court under any circumstances. The mandate of the courts is to interpret the law and not to replace legislative provisions.

[26] It follows, therefore, that the 1st Respondent still has time before it can put in place the allocation committee as provided for under the law and to effect changes in the setting and collection of rent and other dues. It is also not correct that the Presidential directives of 17th November 2022 and the Minister's implementation guidelines of 23rd May 2023 created a legitimate expectation to the Applicants. This is because both instruments predate the enactment of the Markets Acts 2023 which came in force on 8th June 2023. As such, the said instruments could not override the express provisions of the law.

[27] In the circumstances, this point of law raised by the Respondents succeeds. The application was prematurely brought by the Applicants and is thus not amenable for judicial review. On the facts and the law, there is no decision to review since the Respondents are covered by the law and, owing to such legal cover, the impugned actions and omissions are not available for scrutiny under judicial review. Upon this ground, the application is found to be incompetent and thus fails. It is accordingly dismissed with costs to the Respondents. It is so ordered.

## *Dated, signed and delivered by email this 31st day of May, 2024.*

**Boniface Wamala JUDGE**