Kiwankuka Benedicto Galiko v Democratic Party and Others (Miscellaneous Application No. 576 of 2024) [2025] UGHCCD 66 (28 May 2025)

# THE REPUBLIC OF UGANDA

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

## MISCELLANEOUS APPLICATION NO. 576 OF 2024

## (ARISING FROM MISC. CAUSE NO. 306 OF 2020)

KIWANUKA BENDICTO GALIKO :::::::::::::::::::::::: APPLICANT

#### VERSUS

- 1. DEMOCRATIC PARTY - 2. DR. SIRANDA GERALD BLACK - 3. DR. MAYAMBALA KIWANUKA - 4. HON. NOBERT MAO - 5. HERBERT RUTAGWERA::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

## BEFORE: HON. JUSTICE SIMON PETER M. KINOBE

## RULING

The background of this application is that the applicant filed Miscellaneous Cause No. 306 of 2020 challenging the legality of the electoral process of the members of NEC of the Democratic Party (1st Respondent). The matter was heard and judgment delivered. The applicant now claims that the 2 nd , 3 rd , 4 th and 5th respondents are in contempt of court hence this application.

28th May 2025

The applicant brought this application under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act Cap. 71, Order 52 Rules 1, 2, of the Civil Procedure Rules S. I 71-1 for orders that;

- 1. The 2nd, 3rd,4th and 5th respondents be committed to civil prison for contempt or disobedience of court orders. - 2. The respondents jointly or severally be fined a sum of UGX 300,000,000 (Three Hundred Million Shillings Only) for contempt of court orders - 3. The respondents be fined UGX 100,000,000 (One Hundred Million shillings only) each for contempt of court. - 4. The costs of the application be provided for.

The grounds of the application are specifically set out in the affidavits of the applicants but briefly are that;

- a. The 1st respondent's officials, notably the 2nd respondent and others, were declared by the High court to have been irregularly elected. - b. Since the election was irregular, the 2nd , 3 rd , 4 th and 5th Respondents do not qualify to occupy the office of the secretary general, national chairman, president general and organizing secretary respectively for the Democratic Party. - c. Despite the said judgment, the respondents have continued to illegally occupy the offices and carry out party activities well aware they don't have the mandate to do so. - d. The 2nd respondent has since called for a NEC Meeting which took place on the 19th and 20th April 2024.

28th May 2025

- e. The 2ndrespondents cannot continue to call for such a meeting in view of the fact they are illegally in office. - f. It is in the interest of justice that an order for contempt of court is issued against the respondents.

In opposition to the application, the 2nd , 3 rd , 4 th and 5th respondents filed affidavits in reply whose grounds of opposition are summarized as follows;

- a. The application is misconceived barred by res judicata, bad in law, frivolous and vexatious. - b. Miscellaneous Cause No. 306 of 2020 did not order that the respondents elect interim office bearers or organize a national delegates conference for legitimate elections. - c. That in Miscellaneous Cause No. 306 of 2020 court dismissed the prayers by the applicant to dissolve the national executive committee of the party. - d. The national executive council and national council meetings were regularly convened and there is no status quo to maintain. - e. That the respondents continue to occupy their offices and are carrying out party activities legally. - f. The applicant neither filed for appeal nor review of the decision delivered vide Miscellaneous Cause No. 306 of 2020. - g. The orders of the high court cannot be subject to a temporary injunction as there is no pending suit.

28th May 2025

- h. Once a court makes a determination or judgment in a matter, the court becomes functus officio and that the instant application is misconceived. - i. That there are no grounds pleaded by the applicant based on which court should make an order that the respondents are in contempt of court. - j. The application be dismissed with costs.

## REPRESENTATION

The Applicant represented himself while the respondents were represented by Mr. Semuyaba Justin.

## ISSUES FOR DETERMINATION

Whether the respondents are in contempt of court.

## DETERMINATION

#### Applicants case

- a) The applicant's case is that he was a successful party in MC 306 of 2020 where court delivered judgment declaring the National Executive Council's election irregular, illegal and in contravention of the constitution of the 1 st respondent. - b) That court having delivered the above ruling the respondents had a duty to do any of the following;- - I. They would abdicate and abandon office immediately upon the pronouncement of court,

28th May 2025

- II. Or organize the National Council to regularize the election, - III. They would have organized another National Delegates Conference to seek new mandate, - IV. Applied to court to stay execution pending hearing and determination of the appeal. - c) The applicant alleges that the respondents never did any of the above and that the respondents were adamant to obey the court order. - d) That they continue to conduct their national executive meeting as if there was no order served upon them. - e) That despite the judgment of court the respondents have continued to occupy their respective offices and carry out party activities. - f) Therefore, the same are in contempt of court for failing to comply with the judgment in MC 306 of 2020. - g) That the respondents' actions are a direct affront to the authority of this honorable court among others.

#### Respondents' case

- a) The respondents allege that the applicant was not successful in challenging the legality of the electoral process of the members of the National Executive Committee of the 1 st respondent in MC 306 of 2020. - b) That court found that the delegates conference that took place on the 18th to 20th September 2020 at Sir Samuel Baker school in Gulu district was duly convened.

5 | P a g e

28th May 2025

- c) That the National Executive Committee of the 1 st respondent was regularly and legally appointed/ elected. - d) That court made it clear in MC 306 of 2020 that it could not oust the National Executive Committee of the 1 st respondent to which the 2nd ,3 rd ,4 th and 5th respondent are among - e) That court emphatically dismissed the prayers by the applicant to dissolve the National Executive Committee of the 1 st respondents and declined to issue the writs of certiorari and mandamus. - f) That the above prayers declined because the 2 nd , 3 rd , 4 th and 5th respondents were not parties to MC 306 of 2020 and granting such prayers would amount to condemning the 2 nd , 3 rd , 4 th and 5th respondents unheard - g) That therefore this application is incompetent, frivolous and vexatious and barred by law as it does not disclose any cause of action against the 2 nd , 3 rd , 4 th and 5th respondents who were never party to MC 306 of 2020. - h) That the applicant never appealed the ruling in MC 306 of 2020 - i) That they have appealed part of the ruling in MC 306 of 2020.

#### Decision.

I have had the opportunity of reading the Judgment in Miscellaneous Cause No. 306 of 2020.

The applicant filed Miscellaneous Cause No. 306 of 2020 challenging the manner in which he was treated during an election of delegates of the 1 st respondent.

28th May 2025 Miscellaneous Cause No. 306 of 2020 was an application for Judicial Review wherein the applicant sought for a declaration that the acts of the respondent of denying him the opportunity to freely participate in the national delegates conference of 1 st respondent after, he fulfilled all the requirements was discriminatory, illegal, ultra virus, null and void, contrary to the rules of natural justice and amounted to inhuman and degrading treatment

The applicant sought;-

- a) a declaration that the 1 st respondent's Electoral Commission that conducted the elections was not legally constituted, - b) an order of certiorari quashing the declaration of Gerard Siranda and the other office bearers of the 1 st respondent as duly elected, for having been marred with irregularities, - c) an injunction to restrain the 1 st respondent from future undemocratic practices manifested in the previous electoral process, - d) a writ of mandamus compelling and directing the respondents to hold credible free and fair elections of its leaders in which he should be allowed to freely take part, - e) general and exemplary damages, - f) and the costs of the application.

Court issued the following orders and declarations; -

a) a declaration that the decision of the respondent to strike off the name of the applicant from the list of candidates and to deny him

28th May 2025

the right to contest without giving him a fair hearing was procedurally improper,

- b) a declaration that the decision of the respondent to announce the name of office bearers of the respondent from a pre prepared list was illegal and in contravention of the constitution of the 1 st respondent, - c) The 1 st respondent is ordered to pay the applicant half of the tax bill of costs.

As to the orders of mandamus and certiorari the court on page 18 paragraph 48 categorically stated and I quote,

"*the applicant sought for several remedies. One of the remedies sought was for an order of certiorari to quash the declaration of Gerard Siranda and other office bearers of the respondent for having been marredwith irregularities. The other remedy which was sought by the applicant was for a writ of mandamus compelling and directing the respondent to hold credible free and fair elections of its leaders in which he the applicant should be allowed to freely take part. I note that the applicant did not join Gerard Siranda and the other office bearers as parties to this application the orders of certiorari and mandamus that he sought have the effect of removing them from office without being given an opportunity to be heard. Those prayers are accordingly rejected"*.

From a read of the above, I agree with the respondents that court did not in any way whatsoever nullify the election of the 2 nd , 3 rd , 4 th and 5th respondents. I note that court did not order fresh elections and or the

28th May 2025

election of new office bearers. There was also no order whatsoever for the elected office bearers to vacate office.

I therefore find that the 2 nd , 3 rd , 4 th and 5th respondents were under no obligation to abdicate and abandon office. Equally the 1st respondent was under no obligation whatsoever to organize the National Council to regularize the election or organize another National Delegates Conference to seek a new mandate.

Both parties have cited a plethora of authorities on contempt of court with which I agree and find no reason to depart. I will quote a few for purposes of putting this matter in perspective on the issues of contempt of court.

Contempt of court refers to any behavior of an individual that defies or opposes the authority or dignity of the court (see; Black's Law Dictionary 10 th edition). Contempt of court consists of conduct which interferes with the administration of justice or impends or perverts the course of justice. Civil contempt of court consists of a failure to comply with a judgment or an order of court or breach of an undertaking of court (see Nambi Vs

## Lwanga MA 213 of 2017)

Before any action can be found to amount to contempt of court the following principles have to be established

- 1. existence of a lawful order, - 2. potential contemnor's Knowledge of the order - 3. potential contemnor's Failure to comply, that is, disobedience of the order, (see Nambi Vs Lwanga MA 213 of 2017)

A party who knows of an order regardless of whether in view of that party the order is null or valid, regular or irregular, cannot be permitted to

9 | P a g e

28th May 2025

disobey it by reason of what that party regards the order to be. It is not for the party to choose whether or not to comply with such an order. The order must be complied with in totality in all circumstances by the party concerned subject to the party's right to challenge the order in issue. It is the responsibility of, and duty of the party concerned in case that party for some genuine reason finds compliance with the order not possible, to appropriately move court issuing the order and bring to the attention of court the reason for noncompliance (see; Housing Finance Bank Limited and Another Vs Edward Musisi CA MA 158 of 2010)

In the current application it is not in dispute that the applicant filed Miscellaneous Cause No. 306 of 2020 in which courts made certain orders as observed above. Certain declarations were made against the 1<sup>st</sup> respondent as regards to the manner in which the applicant was treated during the election. However, I note that this application is based on the intentional misconception of what court ordered. This application is based on the applicants' desired, speculative orders that were **not** granted or issued by court in **Miscellaneous Cause No. 306 of 2020.**

I find that this application is tactfully crafted to bring the 2<sup>nd</sup>, 3<sup>rd</sup>, 4<sup>th</sup> and 5<sup>th</sup> respondents under the ambit of **Miscellaneous Cause No. 306 of 2020**. This is a difficult task to achieve as court declined the prayers for certiorari and mandamus. Courts rationale in denving these prayers was the 2<sup>nd</sup>. 3<sup>rd</sup>. $4<sup>th</sup>$ and $5<sup>th</sup>$ respondents were never party to **Miscellaneous Cause No. 306 of 2020** and annulling their election would amount to condemning them unheard.

Since the judgment in Miscellaneous Cause No. 306 of 2020, the 1<sup>st</sup> respondent has held several National Delegates Conferences and National

SPKinobe<br>28th May 2025

$10 \mid$ P a g $\emph{e}$

Council meetings for elections of office bearers of the 1 st respondent. The applicant herein has not been barred from participating in the subsequent elective processes of the 1 st respondent. The continuous filing of applications in this court by the applicant on matters already concluded with clear orders is not only an abuse of court process but is ill motivated with an intention to stifle the function of the 1st respondent and vex the respondents.

I therefore find that the respondents cannot be held in contempt of court as there is no court order that was violated by the respondents. I find this application to be misconceived, an intentional abuse of court process and vexatious with an intention to harass and annoy the respondents.

In line with the foregoing, I dismissed this application with costs to the respondents.

I, so order.

…………………………………………………

SIMON PETER M. KINOBE JUDGE

DATE: 28th May 2025