Kintu T/a Genesis Drug Shop v National Drug uthority (Misc Cause 159 of 2023) [2024] UGHCCD 98 (10 June 2024)

### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLEANEOUS CAUSE NO. 0159 OF 2023 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, MANDAMUS AND DECLARATIONS**

## **KINTU PHILLY T/A GENESIS DRUG SHOP :::::::::::::::::::::::::::: APPLICANT VERSUS NATIONAL DRUG AUTHORITY :::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

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

## **Introduction**

[1] This application was brought by Notice of Motion under Articles 28, 42 and 44 of the Constitution, Sections 33 and 36 of the Judicature Act Cap 13, and Regulations 30(A) (3) of the National Drug Policy and Authority (Licensing) Regulations 2014 (as amended) seeking for;

a) Declarations that;

(i) The decision by the Respondent rejecting the Applicant's application to relocate his drug shop to new premises at Najanankumbi, Kiwanuka Road, Rubaga Division was arrived at illegally, high handedly, irrationally, in bad faith, unreasonably and in breach of the rules of fair hearing and the National Drug Policy and Authority (Licensing) Regulations 2014.

(ii) Regulations 9(1), (2) and 30(A) (2) and 3 of the National Drug Policy and Authority (Licensing) Regulations 2014 as amended are unconstitutional as they prevent citizens of Uganda to freely enjoy the right to practice their profession and right to carry on lawful occupation, trade or business contrary to Article 40 of the Constitution.

(iii) Regulations 9(1) and 30A (2) and (3) of the National Drug Policy and Authority (Licensing) Regulations 2014 as amended are unconstitutional as they bar citizens of Uganda to enjoy the right to own property contrary to article 26 of the Constitution.

b) Orders that;

(i) An order of Certiorari doth issue quashing the decision of the Respondent contained in a letter dated 27th July 2023 rejecting the application for relocation of the drug shop.

(ii) The Respondent issues a license for the Applicant's new drug shop location.

- (iii) The Respondent pays general and special damages. - (iv) The costs of the application be provided for.

[2] The grounds upon which the application is based are summarized in the Notice of Motion and also set out in the affidavit in support of the application deposed by **Kintu Philly**, the Applicant. Briefly, the grounds are that the Applicant is the proprietor of Genesis Drug shop licensed by the Respondent, located at Kitebi, Mutundwe. The land lady at Kitebi wanted to renovate her building and the Applicant has since 2022 made applications to have the drug shop relocated to new premises at Najjanankumbi, Kiwanuka Road in Rubaga Divivion Kampala but his applications have been rejected. The deponent averred that he wrote a complaint to the Inspector General of Government (IGG) who wrote to the Respondent on 29th August 2022 directing them to reconsider its decision which they did not. He stated that on 11th April 2023, he wrote to the Respondent through his lawyers requesting them to review their decision on account that the Regulation used to reject his application was not applicable. He averred that the distance between the proposed new location and the nearest existing pharmacy is 200 meters as provided for under the licensing regulations. He further averred that despite the Respondent having written back accepting to review its decision in a letter dated 5th May 2023, the same did not happen and he was shocked when the Respondent still returned a rejection of his application. The deponent also stated that the Respondent is discriminating against him as there are many other drug shops that do not fulfill the said requirements.

[3] The application was opposed by the Respondent through an affidavit in reply deposed by **William James Tamale**, the Chief Regional Inspector of Drugs of the Respondent. The deponent stated that the application is an abuse of court process as the matters arising in it seek constitutional interpretation that cannot be handled through an application for judicial review. He stated that there is no illegality, irrationality, procedural impropriety or unreasonableness that has been established by the Applicant. He stated that on 10th November 2021, the Respondent received an application for relocation of Genesis Drug Shop from Kitebi Mutundwe to Mary Kaweesa House, Mambo Bado Luzira, in Kampala. An inspection was carried out and a response was communicated by a letter dated 8th December 2021 informing the applicant then, one Nabadda Veronica, that the application had been rejected for noncompliance with regulation 9(1) of the National Drug Policy and Authority (Licensing) Regulations to the effect that a licensed seller must be located at a distance of 1.5 kilometers from the nearest retail pharmacy.

[4] The deponent for the Respondent further averred that on 24th March 2022, a second application was received for relocation of the same drug shop to Najjanankumbi Ku Stella, Entebbe Road. An inspection was carried out on the premises and the applicant was informed on 13th April 2022 that his application had been rejected on grounds that the applicant had no valid license at the time the application was submitted since there were no physical premises occupied by Genesis Drug shop. The applicant then lodged a complaint with the Respondent to which a response was made on 19th May 2022 to the effect that the applicant had not notified the Authority of the change in the ownership of the drug shop, he had no valid license, the shop lacked physical premises and that the proposed premises breached the law on proximity to licensed sellers and pharmacies.

[5] The deponent further averred that the applicant wrote another letter to the Respondent on 19th May 2022 which letter was reviewed and the applicant was informed to find a more suitable location to relocate his drug shop. The Respondent received another letter from the applicant on 30th June 2022 requesting for a meeting to discuss the position of the Authority on the application for relocation by Genesis Drug Shop. The Respondent wrote to the registered supervisor of the Drug shop Celia Nabatanzi informing her of the requirements to communicate any changes in the ownership of licensed sellers which had not been complied with. The applicant was invited for a meeting with the Respondent's staff on 5th September 2022, was informed that he had made a mistake of purchasing a license which cannot be transferred under the law and that the relocation was being denied due to non-compliance with licensing laws. He was advised to find suitable premises. The applicant proceeded to apply for renewal of his license to operate at the old premises and the application was granted by a letter dated 5th October 2022. The applicant was granted a license and certificate of suitability of premises valid up to 31st December 2023. On 19th December 2022, the applicant wrote to the Respondent requesting to relocate to the same premises which had been denied in the previous applications. On 2th January 2023, the Respondent wrote to the applicant again advising him to identify another location. The deponent also stated that the Respondent addressed the concerns of the office of the IGG. He concluded that the application was made in bad faith and that the orders sought should not be granted by the Court.

#### **Representation and Hearing**

[6] At the hearing, the Applicant was represented by **Mr. Alex Asiimwe** of M/s Volens Advocates while the Respondent was represented by **Mr. Esau Isingoma** of M/s K&K Advocates. It was agreed that the hearing proceeds by way of written submissions. Both counsel filed their submissions which I have taken into consideration in the course of determination of this matter.

### **Issues for Determination by the Court**

[7] Four issues were agreed upon for determination by the Court, namely;

- *a) Whether the application is competent before the Court?* - *b) Whether the application is amenable for judicial review?* - *c) Whether the application raises any sufficient grounds for judicial review?* - *d) What remedies are available to the parties?*

### **Resolution of the Issues**

# **Issue 1: Whether the application is competent before the Court? Submissions by Counsel for the Respondent**

[8] Counsel for the Respondent submitted that this application is incompetent before this court since it seeks for constitutional interpretation seeing from orders (b) and (c) in the Notice of Motion and paragraphs 10 and 12 of the affidavit in support of the application which seeks declarations that Regulations 9(1), (2), (3) and 30A (2), (3) of the licensing regulations are unconstitutional and in contravention of Articles 40 and 26 of the Constitution of Uganda; which jurisdiction this court does not have. Counsel submitted that the jurisdiction to interpret and determine the constitutionality of any provisions of the law is a preserve of the Constitutional Court under Article 137 (3) of the Constitution.

[9] Counsel further submitted that the application is brought in abuse of the court process. Counsel cited the case of *Attorney General v James Mark Kamoga & Anor, SCCA No. 8 of 2004* to the effect that abuse of court process involves the use of the process for an improper purpose or a purpose for which the process was not established. Counsel argued that the application is a disguised appeal against the Respondent's decision and is a clear case of forum shopping; the Applicant having been extensively guided by the Respondent to the effect that his application had failed to comply with the proximity requirements. Counsel also argued that a perusal of the Notice of Motion shows that the Applicant is not challenging the decision making process but the decision itself; which is not appropriate in an application for judicial review. Counsel prayed that the application be struck out for being incompetent before the Court.

### **Submissions by Counsel for the Applicant**

[10] In reply, Counsel for the Applicant submitted that the Applicant is not asking this Court to interpret and determine the constitutionality of any of the provisions of the law as it is made to appear by the Respondent's Counsel. Counsel submitted that on the contrary, this Court is clothed with power in a judicial review application to declare as unconstitutional a law or government action which is inconsistent with the Constitution. Counsel argued that all the remedies sought in the application are provided for by the law and none fall outside the law governing judicial review. Counsel concluded that the application is properly before the Court.

[11] Regarding the submission that the application is an abuse of the court process, Counsel for the Applicant submitted that contrary to the submission by the Respondent's Counsel, the present application challenges the decision making process of the Respondent in denying the Applicant's application to relocate his drug shop, based on the ground that the entire decision making process was tainted with misapplication of the provisions of the law. Counsel relied on *Geraldine Ssali Busulwa & Anor v National Social Security Fund & Anor, HCMC No. 032 of 2016* to conclude that the application satisfies the test for judicial review and is not brought in abuse of the court process.

### **Determination by the Court**

[12] Under Article 137 of the Constitution, the jurisdiction to determine any question on interpretation of the Constitution is exclusively vested in the Constitutional Court. Article 137(3) of the Constitution provides that;

*"A person who alleges that —*

*(a) an Act of Parliament or any other law or anything in or done under the authority of any law; or*

*(b) any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the constitutional court for a declaration to that effect, and for redress where appropriate"*.

[13] In the present case, it is alleged by the Applicant that *"regulations 9(1), (2) and (3), and 30(A)(2) and (3) of the National Drug Policy and Authority (Licensing) Regulations 2014 as amended are unconstitutional as they prevent citizens of Uganda to freely enjoy their right to practice their profession and right to carry on lawful occupation, trade or business contrary to article 40 of the Constitution and the right to own property contrary to article 26 of the constitution"*. The Applicant prayed in the Notice of Motion for, among others, a declaration that regulations 9(1), (2) and (3), and 30(A)(2) and (3) of the National Drug Policy and Authority (Licensing) Regulations 2014 as amended are unconstitutional.

[14] It is clear that the above pleadings and reliefs sought in the present application for judicial review are misplaced. They are the kind that are supposed to be contained in a petition for constitutional interpretation filed in the Constitutional Court. I am unable to accept the argument by Learned Counsel for the Applicant that this Court is clothed with power in a judicial review application to declare as unconstitutional a law or government action which is inconsistent with the Constitution. This argument is totally not based on the law and reflects a misunderstanding of the role of the court in the judicial review arena.

[15] Be that as it may, it is also clear that the Applicant's intention when bringing this application was not to file a constitutional petition; but rather to seek reliefs in judicial review. Apart from including the above highlighted impugned pleadings, the other aspects of the application are properly before the Court in judicial review. The correct procedure for bringing an application for judicial review was invoked and the appropriate grounds have been cited. In my view, this is not a case where the Applicant intended to present a petition for constitutional interpretation. As such, it is possible to apply the principle of severance; with the effect that the offending pleadings can be expunged from the proper pleadings without rendering the remaining part of the application incompetent. My finding, therefore, is that in as far as the application is seeking judicial review reliefs, it is properly before the Court and is not incompetent.

[16] Regarding the allegations on abuse of the court process, it was argued by the Respondent's counsel that the Applicant had acted in abuse of court process in the sense that his purported application in judicial review was a disguised appeal against the decision made by the Respondent. Counsel also argued that the Applicant was on a forum shopping spree having already been guided on the requirements. Under the law, abuse of the court process involves the use of the process for an improper purpose or for a purpose for which it was not intended. See: *Uganda Land Commission v James Mark Kamoga & Anor, SCCA No. 8 of 2004*. It is clear to me that the Applicant is aggrieved by the decision of the Respondent. As to whether his grievance is properly before the Court is a matter that will be addressed by the Court when considering the amenability of the application for judicial review. What is clear to me is that the application does not tend towards abuse of the process of court and is properly before the Court irrespective of its merits. The application is thus competent before the Court.

# **Issue 2: Whether the application is amenable for judicial review? Submissions by Counsel for the Applicant**

[17] Counsel for the Applicant cited the provisions of Rule 7A of the Judicature (Judicial Review) (Amendment) Rules, 2019 to the effect that when court is considering an application for judicial review, it must satisfy itself that the application is amenable for judicial review, that the aggrieved person has exhausted the existing remedies available within the public body or under the law and that the matter involves an administrative public body or official. Counsel submitted that the Respondent is a public body and that the application challenges the decision of the Respondent based on public law rights. Counsel concluded that the application is amenable for judicial review.

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

[18] Counsel for the Respondent submitted that the instant application is not amenable for judicial review since it is premised on the merits of the Respondent's decision to reject the application for relocation of his drug shop to Najjanankumbi and not the decission making process. Counsel submitted that the remedy for the Applicant lies in filing a suit for enforcement of rights as opposed to an application for judicial review. Counsel argued that the court is not mandated to adjudicate upon a matter upon finding that the application is not amenable to judicial review and submitted that the court should dismiss the application with costs.

### **Determination by the Court**

[19] The position of the law is that judicial review is concerned not with the decision but the decision making process. Judicial review involves an assessment of the manner in which a decision is made. It is not an appeal and the jurisdiction is exercised in a supervisory manner, not to vindicate rights as such but to ensure that public powers are exercised in accordance with the basic standards of legality, fairness and rationality. See: *Attorney General v*

*Yustus Tinkasimmire & Others, CACA No. 208 of 2013* and *Kuluo Joseph Andrew & Others v Attorney General & Others, HCMC No. 106 of 2010*.

[20] The *Judicature (Judicial Review) (Amendment) Rules 2019*, set out the factors to be considered by the Court when handling applications for judicial Review. Rule 7A provides that;

*"(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"*.

[21] As a matter of law, for a matter to be amenable for judicial review, it must involve a public body in a public law matter. Two requirements, therefore, need to be satisfied; first, the body under challenge must be 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, (2009) Law Africa Publishing, Nairobi, at Pg. 37. In *Arua Kubala Park Operators and Market Vendors' Cooperative Society Ltd v Arua Municipal Council, HCMC No. 003 of 2016*, Mubiru J*.* expressed the opinion that in order to bring an action for judicial review, 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. The "public" nature of the decision challenged is a condition precedent to the exercise of the courts' supervisory function.

[22] On the matter before me, the Applicant seeks to challenge the decision by the Respondent rejecting his application for relocation of his drug shop from one place to another. The application is based on grounds of illegality, irrationality and procedural impropriety or unfairness on the part of the Respondent. It is not in dispute that the Respondent is a public body and that the decision to allow or reject relocation of a drug shop is an exercise of statutory authority on the part of the Respondent. The matter in issue is, therefore, a public law matter. However, the crux of the contention raised by the Respondent is whether the decision making process in the matter before the Court is in issue upon the application of the Applicant herein. In my view, this contention raised by the Respondent's Counsel touches the merits of the application. As such, the same shall be resolved during consideration of the application on its merits. As far as the amenability of the application is concerned, I find that the application is properly before the Court. Issue two is resolved in the affirmative.

# **Issue 3: Whether the application raises grounds for judicial review?**

[23] Rule 7A (2) of the Judicature (Judicial Review) (Amendment) Rules, 2019 provides that;

"*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 the decision and that, as a result, there was unfair and unjust treatment"*.

[24] In that regard, the duty of the 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 challenge did not follow due process in making the respective decisions or acts and that as a result, there was unfair treatment of the applicant which is likely to have an effect on other members of the public.

[25] In the instant case, the Applicant's complaint is that the decision by the Respondent to reject his application for relocation of his drug shop from Kitebi-Mutundwe to Najjanankumbi was tainted with illegality, procedural impropriety and irrationality. I will examine each of the allegations separately.

# **The Ground of Illegality**

## **Submissions by Counsel for the Applicant**

[26] Counsel for the Applicant challenged the decision to reject his application for relocation of his drug shop on the basis that the Respondent wrongfully applied the provisions of the law to the prejudice of the Applicant. Counsel submitted that the Respondent's communications to the Applicant indicated that the proposed location did not comply with Regulation 9(1) and 30A of the National Drug Policy and Authority (Licensing) Regulations 2014 as amended on account that the nearest pharmacies (Tetaz Pharmacy and St. Jude Pharmacy) were 200 metres away from the proposed location and less than the required 1.5km. Counsel argued that that the application was for relocation of a drug shop and not location and that the applicable regulation was Regulation 30A which requires a licensed seller, retail pharmacy or wholesale pharmacy that seeks to relocate to other premises to do so as prescribed in the regulation; and not regulation 9(1) of the Regulations.

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

[27] In reply, Counsel for the Respondent submitted that the Applicant is misguided in his belief that Regulations 9(1) and 30A apply disjunctively to location and relocation. Counsel submitted that Regulations 30A (2), (3) and (4) on relocation of licensed sellers, retail or wholesale pharmacies are subject to Regulation 9(1) on location of a licensed seller, retail or wholesale pharmacist. Counsel submitted that the Respondent did not commit any illegality in the process of rejecting the Applicant's application for relocation.

### **Determination by the Court**

[28] Illegality has been described as the instance when the decision making authority commits an error in law in the process of making a decision or making the act the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of the law or its principles are instances of illegality. Lord Diplock in the case of *Council of Civil Service Unions v Minister for Civil Service (1985) AC 375,* made the following statement;

*"By illegality as a ground for judicial review, I mean that the decision maker must understand correctly the law that regulated his decision making power and must give effect to it. Whether he has or not is par excellence a justifiable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercised''*.

[29] A public authority will be found to have acted unlawfully if it has made a decision or done something without legal power to do so. Decisions made without legal power are said to be ultra vires, which is expressed through two requirements: one is that a public authority may not act beyond its statutory power; the second covers abuse of power and defects in the exercise. See: *Dr. Lam –Lagoro James v Muni University, HCM No. 007 of 2016*.

[30] It is also the position of the law that where discretionary power is conferred upon legal authorities, it is not absolute, even within its apparent boundaries, but is subject to general limitations. As such, discretion must be exercised in the manner intended by the empowering Act or legislation. The limitations to the exercise of discretion are usually expressed in different ways, such as requirement that the discretion has to be exercised reasonably and in good faith, or that relevant considerations only must be taken into account, or that the decision must not be arbitrary or capricious. See: *Smart Protus Magara & 13 others v Financial Intelligence Authority, HCMC No.215/2018*.

[31] In the instant case, the Applicant alleges that the Respondent wrongfully applied the provisions of Regulation 9(1) and 30A of the National Drug Policy and Authority (Licensing) Regulations. Counsel argued that Regulation 9(1) provides for location of a drug shop and is not applicable to his application which was for relocation of a drug shop and not location. Like it was submitted by Counsel for the Respondent, it is apparent to me that the challenge by the Applicant is not that the Respondent acted outside its powers but rather that its interpretation or application of the regulations was erroneous. I agree with Counsel for the Respondent that such a complaint is not a proper one to be addressed by judicial review since it invites this Court to substitute the decision of the Respondent with its own decision. Such an approach is outside the domain of judicial review. During the exercise of its power of judicial review, the court should not adopt an approach that indicates that if it were in the place of the public body, it would have made a different decision. The court is only capable of adopting that approach on appeal and not in exercise of its supervisory function over the powers of public bodies. As such, provided the Respondent acted within the boundaries of its authority, their construction and application of the relevant regulations cannot be impeached by way of judicial review. This argument by the Applicant is therefore devoid of merit.

[32] It was further argued by the Applicant that the Respondent acted in a manner that was discriminative and tended to abuse of authority or wrongful exercise of discretion. I have looked at the evidence on record and it is apparent that for whatever decision the Respondent took, they assigned reasons and they promptly communicated the same to the Applicant. I have not seen any evidence of exercise of power in a manner that can be said to manifest abuse of power or unlawful exercise of discretion. The application has, therefore, not disclosed any illegality committed by the Respondent in their exercise of power. The allegations based on the ground of illegality therefore fail.

# **Allegations of Procedural Impropriety Submissions by Counsel for the Applicant**

[33] Counsel cited the case *Alex Nyika & Anor v The Commissioner Land Registration HCMC No. 259 of 2022* to the effect that procedural impropriety encompasses the failure to observe the rules of natural justice as well as the duty to adhere to the established procedures of decision making. Counsel submitted that the Respondent's decision to reject the Applicant's application is tainted with bias and was a deviation from legitimate expectation that the Applicant had. Counsel stated that various drug shops have been granted licenses while only complying with regulation 30A and not 9(1) of the licensing regulations. Counsel further submitted that the Respondent did not communicate to the Applicant any reason for the selective application in the granting of licenses. Counsel concluded that the Applicant complied with the law regarding relocation of a drug shop and expected the Respondent Authority to grant the same.

# **Submissions by Counsel for the Respondent**

[34] In response, it was submitted that the Respondent acted in good faith and afforded the Applicant a right to a fair hearing in respect of his complaint against the rejection decisions. Counsel submitted that the Respondent replied to all the Applicant's queries as seen from the letters annexed to the affidavit in reply as well as at a physical meeting on 5th September 2022. Counsel stated that the IGG also conducted its own investigations and wrote to the Applicant on 5th December 2022 by which it was confirmed that the Applicant was not unfairly treated and was advised to find suitable premises that are compliant with the proximity regulations. Counsel further stated that the Respondent in all its replies communicated the reason for the rejection of the application to relocate.

[35] Regarding legitimate expectation, it was argued by Counsel for the Respondent that the legitimate expectation created by the Respondent was that it would grant a license for relocation if a proximity-compliant location was submitted. Counsel disputed the contention that licenses were granted in contravention of the law or in a situation of selective application of the law and submitted that all applications to the Respondent are evaluated on individual basis and considered basing on the law.

# **Determination by the Court**

[36] As a ground for judicial review, "procedural impropriety" has been defined to mean "the failure to observe basic rules of natural justice or failure to act with procedural fairness toward the person who will be affected by the decision." See: *Council of Civil Service Unions & Others v Minister for the Civil Service [1985] AC 374*. Under the law, procedural impropriety encompasses four basic concepts; namely (i) the need to comply with the adopted (and usually statutory) rules for the decision making process; (ii) the requirement of fair hearing; (iii) the requirement that the decision is made without an appearance of bias; (iv) the requirement to comply with any procedural legitimate expectations created by the decision maker. See: *Dr. Lam – Lagoro James v Muni University, HCMC No. 0007 of 2016*.

[37] Procedural propriety calls for adherence to the rules of natural justice which imports the requirement to hear the other party (*audi alteram partem*) and the prohibition against being a judge in one's cause. The latter essentially provides against bias. Natural justice requires that the person accused should know the nature of the accusation made against them; secondly, that he/she should be given an opportunity to state his/her case; and thirdly, the tribunal should act in good faith. See: *Byrne v Kinematograph Renters Society Ltd [1958]1 WLR 762*.

[38] On the case before me, it has been shown by the Respondent in evidence that whatever application or query that was made by the Applicant, was responded to and promptly so by the Respondent. Reasons were assigned for all the decisions taken by the Respondent. There are no procedural rules or aspects that have been cited that the Respondent was bound to follow and did not. There is no evidence establishing unfair treatment of the Applicant by the Respondent. What is apparent is that the Applicant kept on presenting the same location after its prior rejection and the Respondent kept reiterating its decision rejecting the same albeit at times with different or additional grounds. I do not find any evidence of procedural impropriety or unfairness in the conduct of the Respondent.

[39] Regarding the claim based on legitimate expectation, it ought to be understood by the Applicant that the key word therein is "legitimate". As such, such expectation must be lawful and justifiable. I would agree with Counsel for the Respondent that the only legitimate expectation that was created by the Respondent was that it would grant a license for relocation if a location that was compliant with the regulations was availed. The claim by the Applicant that some sellers were licensed without strict adherence to the regulations, even if it were true, cannot constitute ground for a legitimate expectation for the simple reason that such conduct would be illegal and illegitimate. As such, the Applicant has not proved on a balance of probabilities that the decision by the Respondent was affected by procedural impropriety or unfairness. The allegations based on this ground also fail.

# **The Allegations based on Irrationality**

### **Submissions by Counsel for the Applicant**

[40] Counsel cited the case of *Council for Civil Service Union v Minister for Civil Service [1985] AC 374 ALLER 935* to the effect that irrationality applies to a decision which is so outrageous in defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it. Counsel submitted that by way of a letter dated 13th April 2021, the Applicant's application was rejected on grounds that he did not possess a valid license which decision defeats logic as the existence of approved physical premises is not one of the requirements for a license to be issued since he was applying to have his premises approved so that he could apply for a license. Counsel disputed the Respondent's contention that the Applicant never communicated the change in ownership of the drug shop and was not the recognized owner and referred the court to annexure Q of the Applicant's affidavit in rejoinder to the effect that the Applicant had communicated the change on 21st March 2022 and had even gone ahead to pay UGX 100,000/= for the same purpose. Counsel prayed that the Court should find that the conduct of the Respondent was unreasonable in the circumstances.

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

[41] Counsel cited the case of *United Reflexologists & Anor v Hon. Stephen Malinga, Minister for Health and Anor HCMC No. 12 of 2011* to the effect that irrationality will be proved where it can be objectively shown that the decision of a public body or public officer was so clearly in contravention of established legal conventions that no public body acting under similar circumstances would have arrived at it. Counsel submitted that the Applicant has not proved that the Respondent acted in such a manner that was so outrageous in defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it in the evaluation of his application. Counsel argued that instead of demonstrating how the process of evaluating the latest application was irrational, the Applicant keeps referring to the previous applications and correspondences with the Respondent. Counsel stated that the rejection of the latest application was based on a fresh pre-inspection report dated 25th July 2023 that was annexure K to the Respondent's affidavit in reply which disclosed that the distance from the nearest pharmacy is 60m and was less than the required 1.5km under the licensing regulations.

# **Determination by the Court**

[42] The argument by the Applicant is that it was irrational for the Respondent to require him to be in possession of a valid license before being considered for relocation. This argument is bound to fail on two grounds. One is that it seeks to challenge, on the merits, the decision by the Respondent in exercise of its statutory powers. Secondly, it is apparent from the legal set up that a seller without a license is not authorized to carry out the business in issue. Such a seller cannot therefore be considered for relocation when they are not recognized as licensed sellers. In that regard, the demand by the Applicant to be considered for relocation when he was not in possession of a valid license at his present location is what would be unreasonable and not the reverse. The allegations by the Applicant based on the ground of irrationality are also not made out and they fail. In all, issue three is answered in the negative.

# **Issue 4: What remedies are available to the parties?**

[43] Following the findings herein above, the application by the Applicant wholly fails. The Applicant has not satisfied the Court on a balance of probabilities in respect of any of the grounds raised in the application for judicial review. The application is accordingly dismissed with costs to the Respondent. It is so ordered.

# *Dated, signed and delivered by email this 10th day of June, 2024.*

**Boniface Wamala JUDGE**