Kiondo v Mukono District Local Government & Another (Miscellaneous Cause 48 of 2023) [2024] UGHC 231 (16 March 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MUKONO

### **MISCELLANEOUS CAUSE NO. 048 OF 2023**

## IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW SEEKING DECLARATIONS AND PREROGATIVE ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION

KIONDO STELLA MARGARET ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# 1. MUKONO DISTRICT LOCAL GOVERNMENT 2. HON. REV. DR. PETER BAKALUBA MUKASA::: RESPONDENTS BEFORE HONOURABLE JUSTICE DAVID MATOVU

#### **RULING**

#### Introduction

- 1. This is a motion by Kiondo Stella Margaret (hereinafter referred to as the "Applicant") against Mukono District Local Government and Hon. Rev. Dr. Peter BakalubaMukasa(hereinafter referred to as the "Respondents"). - 2. This motion is brought under Article 42 of the Constitution, Section 36 (1) & 37 (1) & (2) of the Judicature Act, Section 98 of the Civil Procedure Act and Rules 3 (1), 6 (1) & (2) of the Judicature (Judicial Review) Rules seeking for the following orders; -

- i. An order of certiorari to quash the Respondents' decision of rejecting, abandoning and/ or not recommending the election of the Applicant as a member representing all urban councils including Mukono Municipal Council and its urban divisions to the Mukono District Service Commission (MDSC). - An order of certiorari to quash the decision of the ii. Respondents from electing any other person and/ or conducting any election of the representative of urban councils to the MDSC. - An order of certiorari quashing the Respondents' decision iii. of electing/ appointing any other person to represent all urban councils including Mukono Municipal Council and its urban divisions to MDSC. - iv. An order prohibiting and restraining the Respondents from organizing any nomination and election or from appointing any person as the representative of the urban councils including Mukono Municipal Council and its urban divisions to MDSC. - An order of mandamus directing the Respondents to $\mathbf{V}$ . recognize the appointment of the Applicant as the duly elected member representing all urban councils including Mukono Municipal Council and its urban divisions to MDSC. - An order of mandamus to the effect that the action of the vi. District Council of exercising its powers and appointing

the Applicant as the duly elected member representing Urban Councils including Mukono Municipal Council and its urban divisions to MDSC was legitimate and appropriate in the circumstances.

- vii. A declaration that the elections held on March $10th$ , 2022 were procedurally right and as such the election of the Applicant was without any procedural irregularity. - viii. A declaration that the Applicant is a fit and proper person to serve on the MDSC and was legally and procedurally and/ or properly forwarded to the Mukono District Executive as a member representing urban authorities to MDSC. - General and aggravated damages be awarded against the ix. Respondents. - An order for costs to the Applicant. $\mathbf{X}$ .

#### **Background**

- 3. The background tothisapplication is as follows: - - 4. That prior to the lapse of the term of office of MDSC on 12th March, 2022, the Chief Administrative Officer wrote to the Town Clerks requesting them to conduct elections through their respective electoral colleges for purposes of nominating and electing representatives to the various statutory bodies as provided by law. - 5. This included the nominating and election of a representative for urban councils to the MDSC.

- 6. That on the 10th March, the Electoral Collegeresponsible for electing a representative for the urban councils which included Executive authorities/ councils of Kasawo, Naggalama, Nakifuma, Katosi, Ntenjeru and Namataba town councils, Goma Division and MukonoCentral Divisionwas duly constituted and following the procedure as prescribed by law, they elected the Applicant, Ms. Stella Margaret Kiondo as their representative. - 7. On 11th March, the Town Clerk as the returning officer wrote to the 1st Respondent through the 2nd Respondent to present the name of the Applicant as the duly elected representative of urban councils, for appropriate resolution and recommendation. - 8. However, the 2nd Respondent irrationally and illegally rejected the election of the Applicant, alleging integrity issues and instead purported to nominate a one Sarah Katumba as the representative for urban Councils to the MDSC. - 9. That the Applicant was not given a fair hearing by the Respondents and hence the instant cause.

### Legal representation

- 10. At the hearing of this application, the Applicant was represented by Mr. Denis Nyombi. - 11. The 1st Respondent was not represented by counsel at the hearing of this cause but the affidavit in reply was filed by the Attorney General's Chambers on behalf of the 1st Respondent. - 12. The 2nd Respondent did not file an affidavit in reply and was also not represented at the hearing of this cause.

### **Evidence of the Applicant**

- 13. This cause is supported by an affidavit deponed by the Applicant herself and the grounds therein are that: - - 14. On March 10th, 2022, at a fully constituted electoral college the Applicant, Kiondo Stella Margaret was elected unopposed as the representative of the urban councils to the MDSC in accordance with Section 54(2) of the Local Government Act. - 15. That the process of her election was legitimate and followed the appropriate legal procedure as stipulated under section $54(2)(e)$ of the Local Government Act. - 16. That the presiding/ returning officer declared the Applicant, Kiondo Stella Margaret as having been elected unopposed and hence the representative of all urban Councils including Mukono Municipal Council and its urban divisions to MDSC. - 17. That the returning officer a one Godfrey B Kisekka the wrote to Chief Administrative OfficerMukono submitting the the Applicant's name to be presented to the District Council for appropriate resolutions, in accordance with the law. - 18. That however, the $2^{nd}$ Respondent acting irrationally, illegally and ultravires disregarded the Applicant's election and wrote a letter rejecting the Applicant's election and instead nominated Katumba Sarah as the representative of urban authorities contrary to the provisions of section $54(2)(c)$ of the Local Government Act. - 19. That the $2^{nd}$ Respondent's decision of cancelling the Applicant's election was personal and not legally justified as the 5 | Page

process that led to the Applicant's election was transparent, legal and followed the established process by law.

- 20. That the role of the 1st Respondent was to simply present the Applicant's name to the District Council for consideration and approval. - 21. That the District Council, using its executive powers as provided under Section 30 of the Local Government Act recommended the Applicant's name in the council sitting of June 2022. - 22. That the Applicant was never granted a fair hearing when her election was rejected by the 2nd Respondent and instead wrote a letter nullifying and rejecting the Applicant's election and stated that new elections be organized. - 23. That there were no minutes approving the cancellation of the Applicant's election as well as minutes allowing the nomination an appointment of Sarah Katumba as the representative to the MDSC. - 24. That the actions of the Respondents have caused the people of Mukono to suffer without a District Service Commission. - 25. That the Respondents should be condemned for their irrational, illegal and ultra vires actions and the same quashed. - 26. That it is in the interest of justice that this Application beallowed.

#### **Evidence of the Respondents**

- 27. The $1^{st}$ Respondent filed an affidavit in replydeponed by Elizabeth Namanda, the Chief Administrative Officer of the 1st Respondent and stated that: - - 28. Following the expiration of the District Service Commission on February 08th 2022, she wrote to the Town Clerk of Mukono Municipality and the respective Town Councils requesting them to conduct elections by the electoral colleges for purposes of nominating members representing urban councils to the MDSC. - 29. This was also followed by another letter from the District Chairperson on February 28th 2022 addressed to the Municipal Town Clerk requesting him to also conduct elections for the same purposes. - 30. That on the 04th day of March, 2022, the Town Clerk invited executive committees of all urban Councils to conduct elections. - 31. That on the 10th day of March, 2022, elections were duly conducted and the Applicant, Ms. Kiondo Stella Margaret was elected as their representative to the District Service Commission. - 32. That subsequently on the 11th day of March, 2022, the Town Clerk Mukono Municipal communicated the outcomes of the election to the Chief Administrative Officer for onward submission. - 33. However, on the 16th day of March, 2022, the District Chairperson wrote another letter to the Municipal Mayor and LC III's of urban councils directing them to repeat the entire exercise of electing members of statutory bodies including the District

Service Commission claiming that the Applicant had integrity issues as there existed verbal complaints about her.

- 34. That no evidence of the complaints was availed to the Chief Administrative Officer. - 35. That the instruction of the District Chairperson to repeat the entire exercise of electing members to the DistrictService Commission was rejected by urban Council leaders insisting that they stood by the earlier electoral results and that they were valid. - the District Chairperson wrote a number of 36. That communications and correspondences to both the Ministry of Public service and Local Government seeking guidance on the said matter and the same was rendered. - 37. That a sitting of the District Executive Committee was held on 28th November, 2022 at which meeting the 2nd Respondent as the District Chairperson presented the name of Katumba Sarah Kiwalabye as representative of urban authorities to the MDSC and the District Council approved the same. - 38. That however, in a meeting chaired by the Speaker, Mukono district Local Government on the 13th of June, 2023, the appointment of Mrs. Katumba Sarah was rescinded and that of the Applicant Ms. Kiondo Stella Margaret was re-affirmed as the member representing urban authorities on the MukonoDistrict Service Commission. - 39. That she knows that the Attorney General has also advised on the appointment of representatives of urban authorities on District Service Commissions - 40. The $2^{nd}$ Respondent did not file any affidavit in reply. - 41. The Applicant filed an affidavit in rejoinder which has been read and considered in the determination of this cause.

## Submissions

42. The Applicant filed written submissions which have been carefully read and considered by the Court while arriving at this decision.

## **Issues for determination**

- 43. Whether the application discloses any ground for judicial review? - 44. What remedies are available to the parties?

## **Decision of Court**

#### Issue one

Whether the application discloses any ground for judicial review?

45. According to the **Black's Law Dictionary**, Judicial review is defined as a court's power to review the actions of other branches or levels of government; especially the court's power to invalidate legislative and executive actions as being unconstitutional.

- 46. The Judicature (Judicial Review) (Amendment) Rules, 2019 also define Judicial review to mean the process by which the High Court exercises its supervisory jurisdiction over 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. - 47. The application for judicial review is the primary means of challenging the legality of action taken by public bodies or officers. - 48. Rule 5 of the Judicature Judicial Review Amendment Rules, No. 32 of 2019 introduces Rule 7A into the principal rules, which lays out the factors to consider in handling applications for judicial review. It provides as follows;

"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

49. 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

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judicial review; and secondly, the subject matter of the challenge involves claims based on public law principles and not the enforcement of private law rights.

- 50. It is therefore, 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 the Applicant in such an application for judicial review 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; which is likely to have an effect on other members of the public. See Master Links Uganda Limited & Another versus The Attorney General Miscellaneous Cause No. 167 of 2022. - 51. In the instant cause, there is no dispute as to whether the Mukono District Local Government is a public body and that the 2nd Respondent, as the LC V Chairperson is the political head of the 1st Respondent, whose decisions are liable to this court's power of judicial review. - 52. It is also not disputed that the subject of challenge by the Applicant involves matters of public interest. - 53. It should also be noted that Judicial review is concerned not with the decision but with the decision making process. Essentially, 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.

- 54. The duty of the court, therefore, is to examine the circumstances under which the impugned decision or act was done so as to determine whether it was fair, rational and/or arrived at in accordance with the rules of natural justice. See: Attorney General vsYustusTinkasimiire& Others, Court of Appeal Civil Appeal No. 208 of 2013 and Kuluo Joseph Andrew & Others vs The Attorney General & Others, HC MC No. 106 of 2010. - 55. 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 a decision andthat, as a result, there was unfair and unjust treatment". - 56. This flows from the provisions of Article 42 of the Constitution of the Republic of Uganda which provides that any "person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her". - 57. It follows, therefore, that under the law, the court may provide specific remedies under judicial review where it is satisfied that the named authority has acted unlawfully. A public authority will

be found to have acted unlawfully if it has made a decision or done something: without the legal power to do so (unlawful on the grounds of illegality); or so unreasonable that no reasonable decision-maker could have come to the same decision or done the same thing (unlawful on the grounds of unreasonableness or irrationality); or without observing the rules of natural justice (unlawful on grounds of procedural impropriety or unfairness). See: ACP BakalekeSiraji v Attorney General, HCMC No. 212 of $2018.$

58. In the instant cause, the Applicant alleges that the Respondents' decision of rejecting and/ or not recommending her as the duly elected member representing all urban councils including Mukono Municipal Council to MDSCand instead purporting to appoint another person was made illegally, irrationally and/ or with procedural impropriety or unfairness.

## **Illegality**

- 59. Illegality has been described as the instance when the decision-making authority commits an error of law in the process of taking the 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. - 60. In the case of Council of Civil Service Unions versus Minister for the Civil Service (1985) AC 375, Lord Diplockstated, "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 13 of dispute, by those persons, the judges, by whom the judicial power of the state is exercised."

- 61. A public authority will be found to have acted unlawfully if it has made a decision or done something without the legal power to do so. Decisions made without the legal power are said to be made 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 its exercise. - 62. In Dr. Lam Lagoro James vs Muni University, HC M. C No. 007 of 2016, Mubiru J. held that decisions classified as illegal include, among others, decisions which are not authorized; decisions taken with no substantive power; or where there has been a failure to comply with procedure. - 63. In the instant cause, Counsel for the Applicant submitted, while referring to paragraph 20 of the Applicant's affidavit in support that the $2^{nd}$ Respondent wrote a letter to the effect that the Applicant's election had been rejected and that a fresh and new election for the position of urban council representative was to be held. - 64. This was done without granting the Applicant any hearing at all as to why her election had been rejected.

- Respondent nominated 65. Further, that the $2^{nd}$ and recommended a one Sarah Katumbacontrary to Section 54 (2)(c) of the Local Government's Act. - 66. This Court therefore finds that if Sarah Katumba had been recommended and consequently passed by the District Council, it would have the effect of depriving the Applicant of her victory as she was duly elected by the electoral college without a fair hearing. - 67. This would be contrary to the law and would have been ultra vires the powers of the Respondents. - 68. In the premises the Applicant has proved that the Respondents' rejection of her election as the lawfully elected representative of the urban councils to the MDSC and instead nominating and recommending a one Sarah Katumba was done illegally and ultra vires by the Respondentsand the same is therefore impeachable through judicial review.

# **Procedural Impropriety**

- 69. According to Lord Diplock in Council of Civil Service Unions & Others vs. Minister for the Civil Service [1985] AC 374, "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." - 70. 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 Vs. Muni University (HCMC No. 0007 of 2016).

- 71. Procedural propriety calls for adherence to the rules of natural justice which imports the requirement to hear the other party 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. - 72. In the instant case, the Applicant states that when her election was rejected, she was not informed of any grounds that would lead to the nullification of her election. - 73. Further, when the Applicant requested for the minutes of the purported meeting in which it was proposed to have fresh elections, the same were never provided. - 74. Further, the nomination and subsequent recommendation of a one SarahKatumbawithout following due process was illegal. - 75. Also important to note is that Counsel for the Applicant submitted that the $2nd$ Respondent made allegations to the effect that the Applicant was not of high moral character and integrity as provided for under Section 56 of the Act.

- 76. However, the Applicant was never granted a fair hearing for her to defend herself on the said allegations which allegations were not even supported by any evidence. - 77. The Respondents therefore did not follow the rules of natural justice. - 78. This Court agrees with Counsel for the Applicant to this end.

# **Irrationality**

- 79. Under judicial review, irrationality refers to arriving at a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it as per Lord Diplock in Council for Civil Service Unions (supra). In Dr. Lam -Larogo (supra) the court held that in judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. - 80. It was submitted by Counsel for the applicant that the $2nd$ Respondent, as the political head of the 1st Respondent, without any justification and/ or ground nullified the election of the Applicant and instead purported to nominate and subsequently

recommend a one Sarah Katumba to the position of urban Councils' representative to the MDSC.

- 81. That this act disregarded the known process of elections and had the effect of condemning the Applicant unheard. Counsel further submitted that this act was irrational and offended the Applicant's right of natural justice; the right to he heard. - 82. This Court also agrees with Counsel for the Applicant and finds that the acts of the Respondents of unjustifiably nullifying the election was irrational.

### Issue 2

#### What remedies are available to the parties?

- 83. Section 36 (1) of the Judicature Act provides that the High Court may upon an application for judicial review, make an order, as the case may be, of; - Mandamus, requiring any act to be done; $(a)$ - Prohibition, prohibiting any proceedings or matter; or $(b)$ - Certiorari, quashing any decision of the lower tribunal. $(c)$

Section $36(2)$ also provides that no order of mandamus, 84. prohibition or certiorari shall be made in any case in which the High Court is empowered by the exercise of the powers of review or revision contained in this or any other enactment to make an order of like effect as the order applied for where the order applied for would be rendered unnecessary.

#### Certiorari

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- 85. Certiorari means an order by court to quash the decision which is ultra vires. - 86. Therefore, Certiorari is the means of controlling unlawful exercises of power by setting aside decisions reached in excess or abuse of power. By quashing the decision, certiorari confirms that the decision is nullity and is to be deprived of all effect. It has been held that the orders will not issue to persons who take it upon themselves to exercise a jurisdiction without any colour of legal authority; the acts of usurpers are to be regarded as nugatory. - 87. The legal effect of certiorari is to make it clear that the statutory or other public law powers have been exercised unlawfully, and consequently, to deprive the public body's act of any legal basis. - 88. Having found that the Respondents acted irrationally, illegally and thus ultra vires, a writ of certiorari is hereby issued quashing the Respondents' decision of rejecting and/ or nullifying the election of the Applicant as the lawfully elected representative of urban councils to the MDSCand subsequent nomination and recommendation of a one Sarah Katumba to this position.

## **Mandamus**

89. Mandamus means a court order issued to compel performance by public officers of statutory duties imposed on them.

- 90. This a judicial remedy issued in form of an order from the High Court to any constitutional, statutory or non-statutory agency-to do or to forbear from doing some specific act which that body or agency is obliged to do or refrain from doing under the law and which is in the nature of a public duty or a statutory duty. - 91. A public duty is one which is created either by statute, rules or regulations having a force of law. The public duty enforceable through mandamus must also be an absolute duty and not discretionary duty. - 92. The main conditions for the grant of mandamus as were laid down in John MwombekiByombalirwa v The Regional Commissioner and regional Police Commander Bukoba [1986] **TLR 73** are: $\mathbf{L}$ - There must be a public duty; $i$ . - The applicant must have demanded and the respondent must ii. have refused to perform; - The respondents as public officers must have a public duty $iii.$ to perform imposed on them by statute or any other law but shouldnot be a duty owed solely to the state but should be a duty owed as to the individual citizen. - The public duty imposed should be of an imperative nature iv. and not a discretionary one;

- The applicant must have *locus standi*, that is, he must have $V$ . sufficient interest in the matter he is applying for; - There should be no other appropriate remedy available to the vi. applicant. - 93. Having found in favour of the Applicant in Issue number 1, this Court hereby issues a writ of mandamus to the Respondents to confirm the Applicant as the duly appointed member representing urban Councils to the MDSC. - 94. The Applicant, in addition, prayed for general and aggravated damages. The law is that in judicial review, there is no right to claim for losses caused by the unlawful administrative action. Damages may only be awarded if the applicant, in addition to establishing a cause of action in judicial review, establishes a separate cause of action related to the cause of action in judicial review, which would have entitled him or her to an award of damages in a separate suit. - 95. Rule 8(1) of the Judicature (Judicial Review) Rules, 2009 provides as follows: - "8. Claims for damages - (1) On an application for judicial review the court may ... award damages to the applicant if, - (a) he or she has included in the motion in support of his or her application a claim for damages arising from any matter to which the application relates; and

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- (b) the court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his or her application, he or she could have been awarded damages." - 96. In this regard, the agreed position of the law is that the additional cause of action which may be added to an application for judicial review may include a claim for breach of statutory duty, misfeasance in public office or a private action in tort such as negligence, nuisance, trespass, defamation, interference with contractual relations and malicious prosecution. See: Three Rivers District Council versus Bank of England (3) [3003]2 AC 1; X (Minors) versus Bedfordshire County Council [1995]2 AC 633. - 97. In the instant case, although it has been established that the decision affecting the Applicant was reached illegally, this Court has not found any compelling grounds or evidence justifying the award of damages in this public law matter. - 98. In the premises, this Court has not found any justification for grant of any orders for damages in addition to the remedies in judicial review set out herein above. - 99. Regarding costs, in line with Section 27 of the Civil Procedure Act Cap 71, the Applicant is entitled to costs of the application. I accordingly award the costs of this cause to the Applicant against the Respondents.

## Conclusion

In the final result, this application is hereby allowed in the following terms; -

- (a) An order of certiorari is hereby issued quashing the Respondents' decision of rejecting and/ or nullifying the election of the Applicant as the lawfully elected representative of urban councils to the MDSC. - (b) An order of mandamus to the Respondents to confirm and forward the Applicant to the public service commission as the duly appointed member representing urban Councils to the MDSC. - (c) Costs of this cause are to be met by the Respondents.

| Dated this | | 16 day of March | | 2024 | | |------------|--|-----------------|--|------|--| | | | | | | |

David Matovu **JUDGE**