Dennis Adim Enap v Uganda Peoples Congress and Hon. Jimmy James Michael Akena (Miscellaneous Cause 148 of 2025) [2025] UGHCCD 100 (18 July 2025)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)

#### MISCELLANEOUS CAUSE NO. HCT-00-CV-MC-0148-2025

#### DENNIS ADIM ENAP::::::::::::::::::::::::::::::::::::: APPLICANT

#### VERSUS

# 1. UGANDA PEOPLES CONGRESS 2. HON. JIMMY JAMES MICHAEL AKENA: RESPONDENTS

#### BEFORE: HON. JUSTICE BERNARD NAMANYA

## RULING

#### Introduction

1. This is an application for judicial review under Section 40 and Section 42 of the Judicature Act (Cap. 16) and Rules 3, 4, 5 and 6 of the Judicature (Judicial Review) Rules 2009 (as amended). The application seeks the following declarations and orders, among others: a) That the nomination of Hon. Jimmy James Michael Akena in the 2025/ 2026 party elections for the office of party president of the Uganda Peoples Congress (UPC) is tainted with illegality, irrationality, unreasonableness and procedural impropriety, and is therefore null and void; b) That the applicant was validly nominated as a candidate for the office of party president of UPC; c) That an order of certiorari be issued quashing the decision by UPC to

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nominate Hon. Jimmy James Michael Akena for the office of party president in the 2025/ 2026 party elections; and d) That an order of injunction does issue restraining Hon. Jimmy James Michael Akena from participating as a candidate for the office of party president of UPC in the 2025/ 2026 party elections.

- 2. The application is supported by the affidavit of Denis Adim Enap sworn on the 13th day of June 2025. He states that under Article 14.1 (3) of the UPC Constitution, a party president can only serve two terms. That Hon. Jimmy James Michael Akena has already served two terms as a party president of UPC; he was first elected as a party president for the period 2015 to 2020 and served the full term. He was then elected for the second and final term (2020 to 2025). For this reason, the applicant states that Hon. Jimmy James Michael Akena was illegally nominated for the office of party president for the period 2025 to 2030. - 3. The application is opposed by the respondents through two affidavits in reply. According to the affidavit of Hajji Kazimbiraine Mahmoud affirmed on the 4th day of July 2025, there are three points of law upon which court should dismiss the application: a) That there is no decision which the applicant seeks to challenge under judicial review; b) That the applicant did not exhaust UPC internal dispute resolution mechanisms before resorting to court; and c) That the High Court and the Court of Appeal already decided

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on how UPC should manage her political affairs rendering the instant application without any cause of action. He further states that Hon. Jimmy James Michael Akena was validly nominated as a candidate for party president of UPC because he is yet to serve two terms as UPC party president. It is the respondents' case that the Court of Appeal in Civil Appeal No. 20 of 2016: UPC v. Prof. Edward Kakonge nullified the presidency of Hon. Jimmy James Michael Akena for the period 2015 to 2020 meaning that he has so far served only one term (2020 to 2025). Hon. Jimmy James Michael Akena deposed an affidavit in reply on the 4th day of July 2025 stating as follows: a) That the terms of office of party president of UPC were litigated and settled by the court; and b) That UPC party elections are currently ongoing in accordance with 2025/ 2026 electoral road map, but the applicant is attempting to circumvent due process and declare himself the party president through the court process.

#### Representation

4. At the hearing of the application on the 30th June 2025, the applicant was represented by Advocate Joyce Tukahirwa while Advocate Guma Davis represented the respondents.

## Issues for determination

i). Whether Hon. Jimmy James Michael Akena was legally nominated as a candidate for the position of party president of UPC for the period 2025 to 2030.

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ii). What remedies are available to the parties?

## Scope of judicial review

- 5. Judicial review is the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of subordinate courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties. See Rule 2 (1) of the Judicature (Judicial Review) Rules, 2009. In judicial review, the court is confined to ensuring that the bodies exercising public functions observe the substantive principles of public law and that the decision-making process itself is lawful. In judicial review, the court is concerned with the decision-making process of the decision by a public body or officials. The court assesses the way the decision was made with a view of ensuring that public powers are exercised with the basic standards of legality, fairness and rationality. - 6. The supervisory power of the court under judicial review is concerned mainly with public bodies or officials exercising power of a public nature with public law consequences. See Halsbury's Laws of England, Judicial Review, Volume 61A, 2023, para 2. See also Paul Kihika v. Attorney General & IGG, Misc. Cause No. 120 of 2012.

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- 7. The court does not have power to review the merits of the decision in respect of which the application for judicial review is made. See Halsbury's Laws of England (supra) para 2. Similarly, the court does not have power to substitute the decision of the public body or official in whom power is vested by law with its own decision. See Paulo Kamya v. Kampala District Land Board & Anor, Supreme Court Civil Appeal No. 6 of 2013. This is intended to prevent the court from usurping authority from public bodies or officials who are vested with authority by the law to take decisions. - 8. There are three grounds upon which administrative action is subject to control by judicial review. The first ground is illegality. The decision-maker must understand correctly the law that regulates his or her decision-making power and must give effect to it. The second ground is irrationality or unreasonableness of the decision maker. The third ground is procedural impropriety by the decision maker See Halsbury's Laws of England (supra) para 2. Upon hearing an application for judicial review, the court may, in accordance with Section 40 and 42 of the Judicature Act (Cap. 16), grant orders of certiorari and injunction. According to Rule 2 of the Judicature (Judicial Review) Rules, 2009 (as amended), certiorari means an order by court to quash a decision which is ultravires (beyond legal authority or power).

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9. The law requires the court to consider several factors in handling applications for judicial review. Rule 7A of the Judicature (Judicial Review) Rules, 2009 as (amended) provides that:

> "7A. 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.

(2) The court shall grant an order for judicial review where it is satisfied that the decision making body or officer did not follow due process in reaching a decision and that, as a result, there was unfair and unjust treatment."

10. Under Rule 2 of the Judicature (Judicial Review) Rules, 2009 (as amended), a public body includes:

> "(a) the Government, any department, services or undertaking of the Government;

> (b) the East African Community, its institutions and corporations;

> > Page 6 of 14

(c) the Cabinet, Parliament, any court;

(d) District Administration, a District Council, any district committee of a district council, a local council and any committee of a local council;

(e) any corporation, committee, board, commission or similar body whether corporate or incorporate established by an Act of Parliament for the purposes of any written relating to the public health or public undertakings of public utility, education or for promotion of sports, literature, science, arts or any other purpose for the benefit of the public or any section of the public or any section of the public to administer funds or property belonging to or granted by the Government or the East African Community, its institutions or its corporations or money raised by public subscription or its corporations or money raised by public subscription, rates, taxes, cess or charges in pursuance of any written law;

(f) a political party, a trade union, a society registered under the Cooperative Societies Act and any council, board, committee or society established by an Act of Parliament for the benefit, regulation and control of any profession and non-governmental organisations."

11. In accordance with Rule 2 and 7A of the Judicature (Judicial Review) Rules, 2009 (as amended), UPC by virtue of its status as a

Page 7 of 14 political party, is subject to the supervisory power of the court under judicial review.

12. Before I consider the application, I wish to note that the applicant filed a supplementary affidavit in support of the application long after hearing of the application was concluded and directions for filing written submissions issued by the court. It is my decision that the supplementary affidavit is improperly before the court and accordingly expunged from the court record.

## Preliminary points of law

13. Counsel for the respondents raised three preliminary points of law. First, that there is no decision which the applicant seeks to challenge under judicial review. Second, that the applicant did not exhaust UPC internal dispute resolution mechanisms before resorting to court. Third, that the High Court and the Court of Appeal already decided on how UPC should manage her political affairs rendering the instant application without any cause of action.

#### The first preliminary objection

14. The applicant brought this application challenging the nomination of Hon. Jimmy James Michael Akena as a candidate for UPC party president for the period 2025 to 2030. The applicant produced a certificate of nomination issued to him on the 22nd of May by Hajji Kazimbiraine Mahmoud, Chairman of the UPC Party Electoral Commission. The certificate of nomination reads as follows: "This

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certificate is issued and presented to Mr. Enap Adim Dennis for having fulfilled all the necessary requirements and being fully nominated a candidate for the office of UPC party president". There is therefore evidence that UPC has nominated candidates for the position of UPC Party President. In paragraph 8 of his affidavit in reply, Hajji Kazimbiraine Mahmoud admits that UPC has nominated Hon. Jimmy James Michael Akena as a candidate for party president. In this respect, there is satisfactory evidence that the UPC has nominated candidates for the position of party president which decision has prompted the applicant to file this application. Accordingly, the first preliminary objection is overruled.

# The second preliminary objection

15. The applicant produced proof that he wrote to the chairman of UPC Party Electoral Commission on the 26th May 2025 (see Annexure D to the affidavit in support of the application) expressing his dissatisfaction with the candidacy of Hon. Jimmy James Michael Akena but he was ignored and UPC continued the organisation of elections for party president. This evidence was not rebutted by the respondents. I am satisfied that the applicant exhausted internal dispute resolution mechanisms for the party, but he did not get a remedy. The second preliminary objection is also overruled.

# The third preliminary objection

16. The third preliminary objection was to the effect that courts of law already decided how UPC should conduct its electoral affairs. I find

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that it is inappropriate to rule on this preliminary objection because it goes into the merits of the case. It is accordingly overruled, and I will continue to consider the merits of the application.

### Analysis and decision of the court

- 17. The two issues for determination by the court shall be considered jointly. According to Halsbury's Laws of England, Judicial Review, Volume 61A, 2023, para 13, an error of law by a body will render the body's decision vulnerable to judicial review. A body will err in law if: a) it misinterprets a legal document; b) frustrates the purpose of a legal document; c) acts for an improper purpose; d) takes legally irrelevant considerations into account or fails to take relevant considerations into account; e) takes a decision on the basis of a material mistake of fact; and f) fails to follow the proper procedure required by law. Where a body makes an error of law in reaching a decision, it is deemed to have acted without jurisdiction or power, "and the court may quash that decision on an application for judicial review." See Halsbury's Laws of England (supra) at para 13. - 18. The affairs of UPC are governed by a party constitution, which in its Article 14.1 (3) provides as follows:

"The President shall hold office for a term of five years and be eligible for re-election for a further term of five years only PROVIDED that if in his/her second term, the Party President wins the national general election to

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become President of Uganda for the first time, then he/she shall be eligible for election as Party President for the third and last term."

- 19. Under Article 14.1 (3) of the UPC constitution, the terms of the party president of UPC are limited to two. The only exception is where a sitting UPC party president serving his second term wins an election for the office of the President of Uganda. The UPC party constitution allows such a candidate who has won a national election for presidency to stand for a third and final term as party president of UPC. - 20. It was argued for the respondents that Hon. Jimmy James Michael Akena is eligible to be nominated for the position of party president of UPC because he has served only one term (2020 to 2025). But this argument is without basis because the circumstances under which Hon. Jimmy James Michael Akena served his first term as UPC party president for the period 2015 to 2020 are explained in the case of Uganda Peoples Congress and Another v. Prof. Edward Kakonge, Court of Appeal Civil Appeal No. 20 of 2016. Hon. Jimmy James Michael Akena was elected as party president of UPC on the 1 st June 2015. His election was challenged by Joseph Bbosa, Prof. Edward Kakonge and Otoo Ishea Amizza in the High Court. On the 11th December 2015, Hon. Justice Nyanzi Yasin quashed the election of Hon. Jimmy James Michael Akena as UPC party

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president. UPC filed an appeal in the Court of Appeal of Uganda challenging the Ruling. On the 9th December 2016, (Kavuma, DCJ as he then was) issued an interim order staying execution of the High Court Ruling. Basing on the interim order, Hon. Jimmy James Michael Akena continued to serve as UPC party president and served the full term of five years (2015 to 2020). On the 31st August 2020, the Court of Appeal dismissed the appeal in a judgment delivered by Hon. Lady Justice Irene Mulyagonja, in which she held as follows inter alia:

"The UPC continued to carry on its business on the basis of an interim order issued by this court on 9th December 2016 to stay the execution of the orders of the High Court appealed against in this matter. It is now 5 years down the road and Hon. Akena continues to execute the duties of the President of the party, albeit resulting from an illegal process which was quashed in 2015." [My emphasis]

21. In my opinion, the decision by Hon. Lady Justice Irene Mulyagonja (delivered in the year 2020) is to the effect that Hon. Jimmy James Michael Akena successfully served his first term as UPC party president for the period 2015 to 2020, because although his election as party president had been quashed in 2015 by a Ruling delivered by Hon. Justice Nyanzi Yasin, he did not vacate office but rather continued to serve his first full term as UPC party president basing

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on an order of the Court of Appeal staying execution of the High Court Ruling. The evidence before the court is that Hon. Jimmy James Michael Akena was elected as party president for UPC for the second term in 2020 up to 2025.

22. This means therefore, that as of today, Hon. Jimmy James Michael Akena has served two terms as party president of UPC. There is merit in the applicant's argument that Hon. Jimmy James Michael Akena was illegally nominated as a candidate for the office of UPC party president for the period 2025 to 2030 in breach of Article 14.1 (3) of the UPC party constitution considering that he had already served two full terms of five years (2015 to 2020) and (2020 to 2025).

## Conclusion

23. The decision of this court is that in accordance with Article 14.1 (3) of the UPC party constitution, Hon. Jimmy James Michael Akena is not eligible to be nominated as a candidate for the position of party president of UPC for a third term (2025 to 2030). Accordingly, the nomination of Hon. Jimmy James Michael Akena as a candidate for the office of the UPC party president is illegal, void and no legal consequence because it contravenes Article 14.1 (3) of the UPC party constitution. To promote reconciliation between the parties, as provided for by Article 126 (2) (d) of the Constitution of Uganda, each party shall bear its own costs.

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#### Order of the court

- 24. Therefore, in accordance with Section 40 and 42 of the Judicature Act (Cap. 16), I order as follows: - i). That the nomination of Hon. Jimmy James Michael Akena for the office of party president of the Uganda Peoples Congress (UPC) for the period 2025 to 2030 is illegal and therefore null and void. - ii). That an order of certiorari is hereby issued quashing the decision by Uganda Peoples Congress (UPC) to nominate Hon. Jimmy James Michael Akena for the office of party president for the period 2025 to 2030. - iii). That an order of injunction is issued restraining Uganda Peoples Congress (UPC) from further nominating Hon. Jimmy James Michael Akena as a candidate for the office of party president for the period 2025 to 2030. - iv). That each party shall bear its own costs.

## IT IS SO ORDERED

# BERNARD NAMANYA JUDGE 18th July 2025

Delivered by E-mail & via ECCMIS Under the Judicature (Electronic Filing, Service and Virtual Proceedings) Rules, 2025

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