Atwijukye and 41 Others v Isingiro Town Council and Another (Miscellaneous Cause 27 of 2021) [2024] UGHC 702 (26 July 2024)


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HIGH COURT MISCELLANEOUS CAUSE 27 OF 2021** 5 **IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW**

#### **ATWIJUKYE KAGUTIYA AUGUSTINE & 41 ORS ---------------------- APPLICANTS**

### **VERSUS**

### **1. ISINGIRO TOWN COUNCIL -------------------- RESPONDENTS**

### **2. ISINGIRO DISTRICT LOCAL GOVERNMENT**

**BEFORE:** Hon. Justice Nshimye Allan Paul. M.

#### 15

#### **RULING**

#### **BACKGROUND**

This application was initially dismissed under Order 9 Rule 17 CPR but was reinstated after court determined HCMA 399of 2022 filed by the applicants herein.

The applicant filed this application for Judicial Review by way of Notice of Motion brought under Article 40 & 119 of the Constitution of the Republic of Uganda, Sections 33, 36 & 38 of the Judicature Act as amended, Section 55 (3) (b) of the National Environmental Act, Rule 3(1), 6(1) & (2), 8 of the Judicature (Judicial Review) Rules 25 2009 as amended.

The applicants filed the application wherein they sought orders that:

- 1. An order of Mandamus be granted to the applicants compelling and or requiring 30 the respondents to unblock the culverts at Kibwera bridge in Kyabishaho village so as to allow the water to freely flow and the avert or otherwise stop the overflowing of the water in the applicants' properties. - 2. An order of certiorari to be granted to the applicants quashing all orders by the respondents (if any) declaring affected area/ flooded area as a lake under 35 section 36 of the Judicature Act as amended by Section 3 of the Judicature

(Amendment) Act No3 of 2002 and such additional and supplemental orders as court made find right and just to grant.

- 3. An order directing the respondents to compensate the applicants for their lost properties destroyed by the blocked flow of water as a result of the failure of 5 the respondents to maintain and unblock the clogged culverts at the Kibwera bridge in Kyabishaho village. - 4. General Damages to be paid to the applicants for the inconvenience caused. - 5. Costs of the application.

#### 10 **GROUNDS**

The applicants raised ten grounds in their application, namely.

- 1. The applicants are lawful owners of the different parcels of land affected by the water backflow caused by the respondent's negligence and the deliberate refusal or failure to re-install or unblock the culverts at Kibwera bridge at 15 Kyabwishaho village. - 2. The respondents, following the outcry of the applicants' acquired culverts from the Central Government but have refused to reinstall them and the same culverts are to date lying idle to the Town Council. Copies of proof that the respondents received the said culverts to be reinstalled and enable the flow of 20 the said water shall be tendered to this court. - 3. As a result of the respondent's failure to unblock or reinstall the culverts at the clogged point the water levels continue to rise during the rainy seasons thereby escalating the flooding problem in the applicant's properties. - 4. The applicants' pieces of land where prior to the same incident, developed with 25 an access road mostly used by school going children to access schools across the valley, cattle farms, pine and eucalyptus tree plantations among others. - 5. The respondents in the course of the aforesaid works neglected to maintain the Kibwera bridge culverts causing them to get clogged and blocked, as a result caused water back flow to flood into the applicant's properties which are no 30 longer accessible to the applicants and also their homes, pine and eucalyptus tree forest, farms thereon are partially submerged and destroyed by water. - 6. The applicants have since the incident approached the respondents for reversal of the said effects but the respondents have never taken any tangible action to avert the situation. - 35 7. That the actions and the respondents infringe on the applicant's right to quiet enjoyment of their properties.

- 8. That the respondents being the developers failed to carry out an environmental and social impact assessment which is their statutory duty under the National Environment Act of 2019 and the National Environment (Environmental & Social Assessment) Regulations 143 of 2020.

5 9. That as a result of the respondent omissions the applicants have suffered and continue to suffer loss and inconvenience for which they seek general damages. **10.**That it is just an equitable that this application is allowed.

In my view many of the ten "grounds" in this application are actually not grounds, but 10 are what the applicants would lead as evidence that ought to be put in the affidavit in support of the application to prove the real Grounds. It is important to differentiate grounds from evidence.

In formulating grounds, you can be guided by the statute law and case law as to what 15 you must prove for the court to grant the application. That, which you must prove by way of evidence to be granted the prayersin the application, is what ought to be listed as a ground in the application. When dealing with an application for Judicial Review, Sections 1A, 3A, 5 and 7A of the Judicature (Judicial Review) Rules, 2009 as amended, as well as case law on Judicial review may guide an applicant during the formulation of 20 grounds of the application.

### **SUBMISSIONS**

## **APPLICANTS SUBMISSIONS**

The applicants filed written submissions wherein they stated that they are lawful 25 owners of different parcels of land in Kyabishaho village. They submitted that they are entitled to quiet enjoyment and use of their lands without any disturbance or inconvenience and also that they have a right to a clean and healthy environment in accordance to Article 39 of the constitution of the Republic of Uganda as amended.

30 That the respondents have a duty to maintain and enhance a healthy environment in Kyabishaho village in accordance with section 3(2) of The National Environment Act. The applicants contended that the respondent's failure to unblock the culverts at Kibwera bridge to allow water to flow freely and stop flooding of the applicants' properties denied them a right to a clean and healthy environment.

The applicants also contended that the water has affected their homes, movement, tree plantations, farms, and other properties for which they pray that they are awarded general damages of 500 million shillings punitive damages of 250 million shillings as well as costs of the application. The applicants also prayed that court grants the orders sought in the application.

## 5 **RESPONDENTS' SUBMISSIONS**

The 1st and 2nd respondents filed joint submissions filed by the Attorney General's Chambers, wherein that opposed the grant of the orders sought in the application.

The respondent's submitted that this application was not made promptly within three 10 months from the date when the grounds of the application arose as is required in the law In Rule 5 (1) of the judicature (judicial Review) Rules 2009 as amended and assuch submitted that the application ought to be dismissed, in support of their argument they cited the case of **The Open Forum Initiative (TOFI) versus Attorney General and another miscellaneous application number 77 of 2022**

The respondents also contended that the law in the National Environment Act Establishes the National Environmental Management Authority which is a Corporate personality mandated with the management of the environment. They further contended that the actions of the respondents were based on the guidance of the 20 National Environment Management Authority directive that they should halt any planned activities in the wetlands and that the respondents were constrained to comply with the directive of the Authority meant to preserve wetlands in Isingiro Town Council.

25 The response also stated that the applicants have not adduced any evidence to show that they are proprietors of the properties in question or show ownership of any lands to justify any claims for compensation. In conclusion the respondents prayed that the application be dismissed with costs against the applicants.

#### 30 **ISSUES**

The issues that will guide court in resolving this application for Judicial review as guided by the pleadings, submissions and law in in Sections 3A, 5 and 7A of the Judicature (Judicial Review) Rules, 2009 are;

- 35 1. Whether the application was filed within the prescribed timelines. - 2. Whether there is a decision of a public body that is tainted with illegality, irrationality, or procedural impropriety.

- 3. Whether the applicant has exhausted all other existing avenues to seek remedies. - 4. Whether the applicants are entitled to the remedies sought in the application.

## 5 **DETERMINATION**

The principle of judicial review was established in the United States supreme court Case of **Marbury v. Madison**, 5 U. S. (1 Cranch) 137 (1803), but it grounds were not well laid out until the locus classicus decision of the House of Lords in **Council of C**i**vil Service Unions v Minister for the Civil Service (The GCHQ case) [1985] AC 374,** where

- 10 Lord Diplock stated that. - 1. Judicial review is applicable to decisions arising from the use of prerogative (discretionary) power as much as it does to decisions arising from the use of statutory power. - 15 2. The grounds for judicial review can be placed under three principal heads, namely, illegality, irrationality and procedural impropriety.

I will now analyze the evidence guided by the framed issues.

#### 20 **Issue 1:**

## **Whether the application was filed within the prescribed timelines.**

The law in Article 42 of the Uganda Constitution 1995 as amended and section 3 A of the Judicature (Judicial Review) Rules, 2009 as amended authorize an aggrieved person 25 who has a direct or sufficient interest in a matter to seek court redress by way of Judicial review against an administrative decision taken against him or her.

It is a principle of law that filing of an application for Judicial review is time sensitive since it ought to be filed within 3 month from the date when the ground of the 30 application first arose, unless the time is extended by court as is provided the law in Rule 5 (1) of the Judicature (Judicial Review) Rules, 2009 as amended which states.

### *"5. Time for applying for judicial review*

*(1)An application for judicial review shall be made promptly and in any event* 35 *within three months from the date when the grounds of the application first arose, unless the Court considers that there is good reason for extending the period within which the application shall be made"*

I have pursued the applicant's affidavit in support and affidavit in rejoinder. I find that the evidence on court records does not clearly state the decision of either of the respondents that are being challenged. I will nonetheless consider the grounds as

5 guided by the law to try and draw out when the ground complained of first arose, to allow court interrogate compliance to Rule 5 (1) of the Judicature (Judicial Review) Rules, 2009.

The applicant states in the first ground of the application that the respondents have 10 deliberately refused to install culverts which has led to their land being affected by water flow. This is also averred in paragraph 2 of the affidavit in support.

The applicants' second ground is to the effect that they acquired culverts from central government which they gave to the respondents but are still lying idle at the 1 st 15 respondent's premises without being installed. This is also averred in paragraph 5 of the affidavit in support and re-stated at page 3 paragraph 1 of the applicants' submissions.

The evidence in annexture B to the 2nd respondents affidavit in reply is a letter from 20 the National Environmental Management Authority to MS Paul Tusubira & Co Advocates, the lawyers of the applicant in which at page 1 , last paragraph it is stated that "*Isingiro Town council acquired culverts from the Ministry of Works and Transport in June 2021 for installation*".

- 25 In my analysis, therefore the ground of failure to install received culverts as put forward by the applicants arose in June 2021, which means that the application for judicial review ought to have been filed before the end of September 2021, which was not done. - 30 I therefore agree with the respondent submissions at page 3 paragraph 1, 2 and 3 in their submissions that the application was not filed within the prescribed time.

I find that the applicant's application is in breach of Rule 5 (1) of the Judicature (Judicial Review) Rules, 2009 as amended since no extension of time was obtained from court 35 before filing the application for judicial review.

Page **6** of **10**

**Issue 2:**

**Whether there is a decision of a public body that is tainted with illegality, irrationality, or procedural impropriety**.

The grounds illegality, irrationality and procedural impropriety are defined in **Council of C**i**vil Service Unions v Minister for the Civil Service (The GCHQ case) [1985] AC 374**. They are;

- 1. 'Illegality' as a ground for judicial review, means that the decision maker must 10 understand the law that regulated his decision-making power and must give effect to it. - 2. "Irrationality" as a ground for judicial review can also be referred to as "*Wednesbury Unreasonableness*[1](#page-6-0) ". It refers to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person 15 who had applied his mind to the question to be decided could have arrived at it. The court's consideration of what is *'reasonable'* is irrelevant; it must be unreasonable in the Wednesbury sense. - 3. "Procedural impropriety" as a ground for judicial review is defined to mean *"the failure to observe basic rules of natural justice or failure to act with procedural* 20 *fairness toward the person who will be affected by the decision."* Procedural impropriety encompasses four basic concepts, namely. - a. The need to comply with the adopted (and usually statutory) rules for the decision making process; - b. The requirement of fair hearing; - 25 c. The requirement that the decision is made without an appearance of bias; - d. The requirement to comply with any procedural legitimate expectations created by the decision maker.

It is trite law that Judicial Review deals with the decision-making process of a public 30 body to ensure that it is not tainted with illegality, irrationality, or procedural impropriety so that individuals receive fair treatment from the public body.

The principle guiding determination of applications for judicial review is the fact that Judicial review is not concerned with the decision, but it rather the decision-making 35 process that led to the decision as was held in **Kasibo Joushua vs the Commissioner of Customs, URA HCMA 44 of 2007**.

<span id="page-6-0"></span><sup>1</sup> see *Associated Provincial Picture Houses Ltd v Wednesbury Corp* [1948] 1 KB 223

The applicant has an obligation to show in their evidence the decision-making process they fault or facts that point to illegality, irrationality or procedural impropriety in a decision-making process that led to the decision that prompted an aggrieved person 5 to file an application for Judicial review.

I have studied the applicant's application and evidence and find that;

- A. The applicants state in their Grounds A and C that they are faulting the 10 respondents due to failure to unblock or reinstall culverts at a clogged point at Kibwera Bridge – Kyabishaho Village, which escalates the flooding of their parcels of land. This is also repeated as an averment in paragraph 2,4,5,6 & 7 of the affidavit in support of the application, as well as in paragraph 5 of the of the affidavit in rejoinder. - 15 B. The applicants also aver in Paragraph 10 of the affidavit in support that the respondents failed to carry out an environmental and social impact assessment. - C. The applicants aver in paragraph 13 of the affidavit in support that;

*"The actions and omissions of the respondents ought to be called and quashed* 20 *by this court as erroneous, invalid and being tainted with illegality on the face of the record."*

An analysis of the applicant's evidence above shows that the applicants have NOT stated in their evidence the decision making process taken by the respondents that 25 they claim is tainted with illegality.

In their submissions the applicants state that the respondents did not unblock culverts. In response to the applicant's submissions, the respondents stated in paragraph 7 of the 2nd respondent's affidavit in reply that

*"the 2nd respondent received communication from National Environmental Management Authority (NEMA) to the effect that any planned activity on kibwera – kifuregye boundary point should be halted since it would affect lake Mabona Kyabishaho"*

The respondent further averred in paragraph 10 of the 2 nd respondent's affidavit in reply that.

*"The decisions that the applicants are complaining about were made by the National Environmental Management Authority (NEMA) which is a separate legal entity from the 2nd respondent".*

I have studied the letter attached as annexture B to the 2nd respondent's affidavit in reply coming from the National Environmental Management Authority (NEMA) dated 2 nd November 2021 that was addressed to M/S Paul Tusubira & co Advocates concerning the mater in this application for judicial review. In the conclusion part of

10 the letter NEMA writes ;

*"Isingiro Town Council is asked to halt any planned activities in the wetland"*

It is my considered opinion that the directive to halt activities was made by NEMA, a 15 body mandated as a principal agency in Uganda for Management of the environment (see section 9 of the National Environment Act 2019) .

I find that the applicant's evidence on court record does not put forward evidence to show any decision-making process of the respondents that is tainted with illegality, 20 irrationality, or procedural impropriety. This issue is decided in the negative.

### **Issue 3**

**Whether the applicant has exhausted all other existing avenues to seek remedies.**

25 It is trite that in Environmental matters, the National Environmental Management Authority (NEMA) is the principal agency as provided in Section 9 (1) of the National Environment Act 2019.

The law in section 9 (4) of the National Environment Act 2019 provides that

*A person aggrieved by the decision of a lead agency, a technical committee or a public officer in the exercise of delegated functions under this section may appeal to the Authority.*

It is clear from the law above that any person aggrieved by any decision of the respondents acting as lead agencies<sup>2</sup> in environmental law matters within the meaning of the National Environment Act 2019 or any decision of a public officer such as an environmental officer of a district, ought to appeal to the Authority.

$\mathsf{S}$

There is no evidence on court record that the applicants have appealed any decisions they are aggrieved about to the Authority (NEMA). In that regard since their application is in respect to matters that have an impact on a wet land, I find that before filling this application they did not exhaust the remedies that are in the National Environment Act 2019, which ought to be sought from the Authority (NEMA).

#### Issue 4

Whether the applicants are entitled to the remedies sought in the application.

- I find that basing on the evidence on court record, the applicants have not made out a 15 case for grant of the application for judicial review. In conclusion I order that: - 1. The application is dismissed. - 2. Each party to cater for their own costs.

Junters

**NSHIMYE ALLAN PAUL M. JUDGE** 26-07-2024

**. . . . . . . . . . . . . . . . . . .**

<sup>&</sup>lt;sup>2</sup> "Lead Agency" means a ministry, department, agency, local government or public officer in which or in whom the functions of control or management of any segment of the environment are vested