Kunywana Barnabas and Others v Fort Portal City Council and Another (HCT-01-CV-MC-0022-2024) [2025] UGHC 272 (25 April 2025)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

**HCT-01-CV-MC-0022-2024**

**IN THE MATTER OF AN APPLICATION FOR PREROGATIVE ORDERS BY WAY OF JUDICIAL REVIEW**

1. **KUNYWANA BARNABAS** 2. **MUSINGUZI DANSON** 3. **KIRUNGI KUGONZA CHRISTOPHER** 4. **AHIMBISIBWE ROBERT** 5. **HAPPY IVAN** 6. **HBOMUGISHA BRIAN** 7. **GONZA SABIITI** 8. **ETUDI FELIX** 9. **DORCUS MURUNGI** 10. **MUSINGUZI GEORGE** 11. **BYARUHANGA JOHN BOSCO** 12. **NSUNGWA CHRISTINE::::::::::::::::::::::::::::::::APPLICANTS VERSUS** 13. **FORT PORTAL CITY COUNCIL** 14. **BATANDA PAUL (TOWN CLERK) ::::::::::::::::: RESPONDENTS**

**BEFORE: HON. JUSTICE VINCENT WAGONA**

**RULING**

**Introduction**:

1. The Applicants brought the instant Application under Sections 37 and 40 of the Judicature Act and Rule 6 of the Judicature (Judicial Review) Rules seeking Orders that; - 2. **An order of mandamus be issued against the Respondent directing him to regularise the Applicant's appointment.** 3. **A declaration that the actions of the Respondent are ultra vires, unfair and discriminatory in nature.** 4. **General damages.** 5. **Punitive damages.** 6. **An injunction doth issue against the Respondent restraining him from further defamatory utterances against the Applicants.** 7. **Costs of the Application be provided for.**

**Grounds of the Application**:

1. The Application is grounded in the Affidavit of the 6th Applicant who was expressly authorised by the other 11 Applicants to swear an Affidavit in Support of the Application on their behalf, but also, on his own behalf. He deposed in brief that; - 2. On 28th December 2022, the City Service Commission of Fort Portal City published an advert in the New Vision Newspaper of several job vacancies in Fort Portal Tourism City. The Applicants applied for the said jobs, sat interviews, were successful in the interviews and were issued with appointment letters. 3. After receipt of appointment letters, the Applicants started work by 3rd July 2023 under the supervision of the then Town Clerk, Mr. Kyansanku David, and they worked for 3 months until around 20th October 2023 when the 2nd Respondent officially stopped them from work on grounds that the Ministry of Public Service was yet to confirm the availability of wages for new recruits. 4. Later, the availability of wages was for new recruits was confirmed but the Respondents still refused to recruit the Applicants on grounds that the process of seeking clearance on the regularisation of their appointments was still on-going. 5. On 4th April 2024, the Permanent Secretary of the Ministry of Public Service wrote to the Respondent clearing all the Applicants for regularisation of their appointments and also advised the Permanent Secretary of the Ministry of Local Government to supervise the entire regularisation process with the help of the technical team from the Ministry of Public Service. 6. On 2nd July 2024, the Solicitor General of the Attorney General’s chambers officially wrote to the Town Clerk of Fort Portal City directing and advising him to carry out the regularisation of the Applicants, but the Respondents still deliberately and maliciously refused to regularise the Applicants. 7. On 8th August 2024, the Head of Public Service and Secretary to Cabinet wrote to the Permanent Secretary Ministry of Local Government directing that the Applicants’ regularisation issues be handled accordingly. 8. That notwithstanding, the Respondents have still deliberately refused to take heed of the guidance and direction of the ministry of Public Service as well as that of the Solicitor General, and have instead refused to regularise the Applicant’s recruitment on grounds that the Applicants are under criminal investigations which allegations are not true but defamatory in nature. 9. The 2nd Respondent’s act of refusing to take heed of the Attorney General’s advice and the directives from higher offices is illegal, unfair, discriminatory and misuse of office of the Town Clerk for personal gain.

**Respondents’ Affidavit in Reply**:

1. The Respondents jointly opposed the Application through the Affidavit of *Mr. Mugisha B. Richard*, the Deputy Town Clerk of Fort Portal City Council, who deposed in brief that; - 2. On 19th February 2024, the City Town Clerk of Fort Portal City wrote to the Ministry of Public Service requesting for clearance to regularise the appointments of persons who had been recruited and appointed in service of Fort Portal City Council and that by letter dated 4th April 2024, the Permanent Secretary Ministry of Public Service approved the filling of various positions and directed the Permanent Secretary of the Ministry of Local Government to supervise the entire process with support from the Public Service Commission, but that to date, no support has been provided from the named entities. 3. In a letter by the Head of the State House Anti-Corruption Unit written to the Ministry of Local Government and copied to the Town Clerk of Fort Portal City dated 15th August 2024, the Ministry of Local Government was advised against any attempts to regularise the recruitment and purported appointment of 23 Applicants as the same would amount to engaging in an illegality. 4. This Application is an abuse of Court process since the 1st, 2nd, 3r, 4th, 5th, 6th, 7th, 7th, 9th, and 13th Applicants also filed Civil Suit No. 39 of 2023 against Fort Portal Tourism City in which they seek an Order compelling Fort Portal Tourism City to formalise their access to the Public Service Payroll. 5. This Application is incompetent and is not amenable to judicial review since it has been filed out of time.

**Applicants’ Affidavit in Rejoinder**:

1. In an Affidavit in Rejoinder deponed by the 6th Applicant, the Applicants contended, in brief that; - 2. The Respondents neglected their duty of co-ordinating with the Ministry of Public Service officials to regularise the Applicants’ appointment since they did not seek any support from them as required by the letter from the Ministry of Public Service dated 4th April 2024. 3. On 6th May 2024, the State House Anti-Corruption Unit which was investigating the recruitment exercise released their report and among the actions taken by the Unit was to forward the Implicated staff to the DPP’s office which further charged them in the Chief Magistrates Court. The report did not implicate any of the Applicants. 4. Whereas the Applicants had initially filed Civil Suit No. 9 of 2024 before the Hugh Court, the said suit abated and it was seeking orders different from those being sought in the instant Application.

**Representation and Hearing**:

1. The Applicants were represented by *M/s Rwabwogo & Co. Advocates* while the Respondents were represented by the *Attorney General’s Chambers*. Both Counsel addressed me by way of written submissions which I have considered.

**Applicant’s Submissions**:

1. Learned Counsel for the Applicant submitted that the law on judicial review is governed by **Section 37** and **40 (1)** of the **Judicature Act** provide that upon an Application for judicial review, the High Court may grant an Order of mandamus requiring any act to be done, prohibition prohibiting any proceedings or matter or an injunction to restrain a person from acting in any office in which he/she is not entitled to act. That it is an established principle of law that judicial review is concerned with the processes leading to a particular decision and if established that there were legal, proprietary and procedural flaws in the process, then the resultant decision will be subject to the judicial review test under **Section 40** of the **Judicature Act**. 2. He referred me to the case of **Chief Constable of North Wales Police vs. Evans (1982) 2 ALL ER** at **page 141** which was cited with approval in **Kuluo Joseph Andrew & 2 Ors vs. Attorney General & 2 Ors, M. C. No. 106 of 2010** where it was held that, *“the purpose of judicial review is to ensure that the individual receives fair treatment not to ensure that the authority, after according fair treatment reaches on a matter which it is authorised or enjoyed by law to decide from itself a conclusion which is correct in the eyes of court.”* That courts must interrogate the processes leadings to decisions arising from abuse of authority and mete out unfair treatment against individuals affected by those decisions. That the decision of the 1st Respondent of deliberately refusing to regularise the Applicant’s appointment even after being directed by various high offices is very unfair and an abuse of authority. 3. Learned Counsel for the Applicants referred me to **Paragraph 18** of the Applicants’ Affidavit in Support of the Application where it is stated that there are certain people such as *Mr. Kaihura Herbert* the current City Engineer, who went through the same appointment process, but were regularised and are currently working yet the Applicants have been denied the opportunity to work. He submitted that these actions are discriminatory, illegal, improper, and fall within the ambit of procedural impropriety justifying the issuance if prerogative orders of judicial review. He invited this Court to find that the process and decision of the Respondent not to regularise the Applicants’ appointment was irrational and tainted with political interference. Counsel’s submissions remained silent on other remedies sought in the Application such as general damages and punitive damages.

**Respondent’s Submissions**:

1. In their written submissions, Learned Counsel for the Respondent raised two preliminary objections.

Points of Law:

1. The first point of law was that the Application for judicial review was brought out of time. That whereas **Rule 5 (1)** of the **Judicature (Judicial Review) Rules, 2009** provides that an application for judicial review must be made within 3 months, the Applicants filed this Application on 2nd October 2024 and yet according to **Paragraph 7** of the Affidavit in Support of the Application the guidance from the Permanent Secretary of the Ministry of Public Service which the 2nd Respondent failed to implement was communicated to the 2nd Respondent on the 4th day of April 2024 requiring the Respondents to clear all the Applicants for regularisation of their appointments. That the period between 4th April 2024 when the guidance was issued by the Ministry of Public Service and 2nd October 2024 when the Application was filed is a period of more than 6 months. He referred me to the cases of **IP Mugumya vs. AG, HCMC No. 116 of 2015**, **Open Forum Initiative vs. AG & UNRA, Misc. Cause No. 251 of 2020**, and **Obol James Henry & 2 Ors vs. Gulu University & Anor, Misc Cause No. 16 of 2021**, for the proposition that time is of essence in matters of judicial review. Counsel concluded by submitting that since the Applicants did not seek extension of time before bringing this Application, the same is time barred and is in contravention of **Rule 5 (1)** of the **Judicature (Judicial Review) Rules, 2009.** 2. The second preliminary objection was that the instant Application is an abuse of court process since the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, and 13th Applicants filed Civil Suit No. 39 of 2023 against the 1st Respondent seeking orders to compel the 1st Respondent to formalise their access to the Public Service payroll. That since the prayers being sought in Civil Suit No. 39 of 20223 are more less similar to this Application, this Application is an abuse of Court process. I was referred to the decision of *Hon. Justice Ssekaana Musa* (as he then was) in **Male Mabirizi vs. Attorney General, Misc. Application No. 917 of 2021** and that of **James Ditai and Sanyu Africa Research Institute vs. Prof. Florence Mirembe & 4 Ors, Civil Suit No. 358 of 2021,** in which it was held that filing of a multiplicity of actions on the same subject matter against the same opponents on the same issues amounts to abuse of court process.

Merits of the Application:

1. On the merits of the Application, Learned Counsel for the Respondents submitted that judicial review is not concerned with the decision but the decision making process and that in this case, the Respondent is a public body that acted in exercise of its public function. That as per **Paragraph 6** of the Respondents’ Affidavit in Reply, the Head of the State House Anti-Corruption Unit wrote to the Permanent Secretary of the Ministry of Local Government advising against any attempts to regularise the recruitment of the Applicants as the same would amount to an illegality. That as such, there is no illegality, procedural impropriety or irrationality that has been perpetuated by the Respondents since the process to regularise the Applicants has been halted by the Head of the State House Anti-Corruption Unit. Counsel referred me to the case of **Dr. Lam – Lagoro James vs. Muni University, HCMA No. 007 of 2016**, for the proposition that 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. That 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 and the second covers abuse of power and defects in its exercise.

**Applicants’ submissions in Rejoinder**:

1. In rejoinder, Learned Counsel for the Applicants first responded to the points of law that were raised by the Respondents.

Response to points of law:

1. On whether the Application was brought out of time, Counsel submitted that the grounds for this Application arose on 2nd July 2024 as per **Paragraph 4** of the Applicant’s Affidavit in Rejoinder and that this Application was filed on the 2nd day of October 2024 as per the filing date. That the Application was therefore filed after 2 months and 30 days which is well within the timelines provided for by law. 2. In regard to the 2nd point of law about abuse of court process, Counsel submitted that this Application is not in any way an abuse of court process since Civil Suit No. 39 of 2021 abated and the same is not proceeding before Court and that the claims sought in Civil Suit No. 39 of 2021 are completely different from the claims sought in this Application. That in Civil Suit No. 39 of 2021, the Applicants specifically claimed for an order of special damages, general damages, and an order compelling the defendants to formalise the Applicant’s access to the public service payroll and an order of a permanent injunction. That that is different from the instant Application which is seeking an order of mandamus against the Respondents. Further, that as per the case of **Nkunyingi Ssembajja vs. Public Service Commission, Misc No. 82 of 2019**, multiple suits on related issues may co-exist if they pursue distinct legal remedies, reinforcing the principles of addressing both procedural and substantive rights independently.

Merits of the Application:

1. On the merits of the Application, Learned Counsel for the Applicants submitted that as per **Paragraphs 5, 6** and **7** of the Affidavit in Rejoinder, the Director of Public prosecutions acted upon the letter from the State House Anti-Corruption Unit by instituting criminal proceedings which were heard and determined and dismissed by the Chief Magistrate. That it is against **Article 42** of the Constitution and the principles of natural justice for the Respondents to base their decision of not regularising the Applicants’ appointment on a report which never implicated them and which was already acted upon and concluded by courts of judicature.

**CONSIDERATION OF THE POINTS OF LAW**:

**1ST POINT OF LAW: Whether the instant Application is brought out of time.**

1. **Section 36 (7)** of the **Judicature Act Cap 13** as Amended and **Rule 5 (1)** of the **Judicature (Judicial Review) Rules, 2009** provides for the time frame within which an application for Judicial Review should be presented and it provides thus:

*“An application for judicial review shall be made promptly and in any event* ***within three months*** *from the date when the grounds of the application* ***FIRST*** *arose, unless the Court considers that there is good reason for extending the period within which the application shall be made.”*

1. The above law limits the time within which an application for review is to be presented in court to three months from the time the grounds which call for review arose. (See **Nelson Basaija vs. Fort Portal Tourism City & Anor, HCMA No. 6 of 2023**). In **Uganda Revenue Authority Vs Uganda Consolidated Properties Ltd (1997 – 2001) UCL 149** *Justice Twinomujuni JA* stated: *“Time limits set by statutes are matters of substantive law and not mere technicalities and must be strictly complied with*.” In **Francis Nansio Michael Vs Nuwa Walakira (1993) VI KALR 14** which decision has been cited with approval in **Speke Hotel (1996) Ltd v URA, HCT-00-CC-OS 3 of 2009**, the Supreme Court held that *“...clearly if the action is time barred then that is the end of it.”* 2. The rule grants this court the discretion for good reason to extend the period within the application shall be made. But where a party wishes to rely on any exemption to the periods of limitation it must be specifically stated in the pleadings. If it is not, the plaint or application should be rejected. See **Iga Vs Makerere University (1972) EA65 and Speke Hotel (1996) Ltd v URA (HCT-00-CC-OS 3 of 2009) [2009] UGCommC 31 (20 September 2009).** 3. In the instant case, it was the Applicants’ evidence under **Paragraphs 3 – 7** of the Affidavit in Support of the Application that they started working on **3rd July 2023** but were stopped on **20th October 2023** on ground that the ministry of public service was yet to confirm the availability of their wages. That on **19th February 2024**, the 2nd Respondent officially wrote to the Ministry of Public Service requesting for clearance on whether to regularise the Applicants. That on 4th April 2024, the Permanent Secretary of the Ministry of Public Service wrote back to the 2nd Respondent clearing the Applicants for regularisation of their appointments and further advised that Permanent Secretary of the Ministry of local government to supervise the entire regularisation process with the help with a technical team from the ministry of public service. 4. I have perused the record and read the impugned letter dated 4th April 2024 written under reference number COM006/293/06 Vol 21 by *Mr. Kaima Godfrey* for the Permanent Secretary of the Ministry of Public Service. As per the receiving stamp reflected thereon, the letter was received by the Respondents on 9th April 2024. In my view, the grounds of judicial review would first arise when the Respondents failed, neglected or refused to implement this letter which okayed the regularisation process of the Applicants’ recruitment, but not when the letter was written as suggested by learned Counsel for the Respondents. And since the letter was received by the Respondents on 9th April 2024, it cannot be said that time begun running on 4th April 2024 when the letter was written. 5. In my view, the Respondents ought to have implemented the directive of the Ministry of Public Service within a reasonable time, but they did not. As such, as per **Paragraphs 10** of the Affidavit in Support of the Application and the letter annexed thereunder as **Annexture “G”**, the 2nd Applicant wrote to the 2nd Respondent requesting for an update on the appointment regularisation process. Whereas the letter was signed by the 2nd Applicant, the Applicants all own this letter under **Paragraph 10** of the Affidavit in Support of the Application. The letter reads verbatim as follows; -

*“The City Clerk*

*Fort Portal City Council*

*PO Box 29, Fort Portal.*

*Dear Sir,*

*RE: FOLLOW UP ON THE APPOINTMENTS REGULARISATION STATUS*

*As you may be aware, we are appointees of FY 2022/2023. We assumed our duties in July 2023. However, we were subsequently instructed by the Permanent Secretary, ministry of Public Service, in her letter dated 21st September 2023, to wait from assuming duty pending confirmation of our wage. (Letter attached)*

*After further consultation with the relevant authorities notably the Permanent Secretary Ministry of Local Government, we have been informed that clearance to regularise our appointments was issued on 4th April 2024 and directed to the office of the City Clerk for its implementation (Letter Attached), but we haven’t heard any communication to date. We have since verified this information with Permanent Secretary Ministry of Public Service and confirmed the same.*

*Additionally, we have noticed that Fort Portal City Council through City Service Commission has advertised and started the recruitment of new staff, which indeed confirms availability of wages.*

*Given these developments, this is therefore to kindly request an update on the progress of the appointment regularisation process. We eagerly await your guidance and resolution.*

*Thank you for your attention to this matter.*

*Sincerely*

*MUSINGUZI DANSON ….”*

1. This letter by the Applicants is undated but was received by the City Clerk on 6th May 2024 and by the Ministry of Local Government and the Ministry of Finance on 7th May 2024 and the first recipient having received in on 6th May 2024, it implies that the letter was written on 6th May 2025. In my view, the grounds of judicial review first arose on 6th May 2025 when the Applicants wrote this letter and the time within which to file an Application for judicial review started running on 6th May 2025 because the Applicant had waited in vain since 4th April 2024 for the Respondents to act upon the guidance of the ministry of public service and expressed their discontent by the said letter of 6th May 2024. Therefore, the Respondents had by that time failed, neglected or refused to implement the guidance of the ministry of public service and the Applicants were on notice to take such appropriate action against them. 2. It would mean that since the time started running on 6th May 2024, the window for filing an Application for judicial review lapsed on 6th August 2024, and yet the instant Application was filed 2nd October 2024 after a period of 5 months. I do not find merit in the Applicants’ submission that time began running on 2nd July 2024 when office of the Solicitor General responded to their inquiry about the Respondent’s delay in implementing the directives of the ministry of public service. 3. The applicant did not plead any permissible exception why the Application would be considered outside the three months provided for under the **Judicature (Judicial Review) Rules 2009** and **Section 34** of the **Judicature Act** neither was leave sought as provided for under **Rule 5** of the **Judicial Review Rules** and **Section 34** of the **Judicature Act**. This application was therefore brought outside the three months provided for under the law without seeking leave as provided for under **Rule 5(1)** of the Judicial Review Rules and Section 34 of the Judicature Act. This renders the application barred by time.

**2nd POINT OF LAW: Whether the Application is an abuse of Court process.**

1. What constitutes abuse of court process was defined in **Attorney General vs. James Mark Kamoga & Anor, SCCA No. 8 of 2004**, where *Mulenga JSC (RlP)* in the lead judgment concurred with the definition of "**abuse of court process**" as proffered by authors of **Black's Law Dictionary 6th Edition** and held 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."* 2. He further went on to observe that; "*A malicious abuse of legal process occurs when the party employs it for some unlawful object" not the purpose which it is intended by law to effect; in other words, a perversion of it."* 3. In the case of **Benkay Nigeria Limited vs Cadbury Nigeria Limited No. 29 of 2006** (Supreme Court of Nigeria), their Lordships held:

*“In Seraki vs Kotoye (1992) 9 NWLR (pt 264) 156 at 188, this court on abuse of court process held....the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue…”*

1. In the instant case, I have perused the record of **HCT-01-CV-CS-039 of 2023** and established that save for the 10th and 11th Applicants, all the other Applicants were the Plaintiffs in the said suit which had been brought against the 1st Respondent and a one *Kyansanku David*, the then Town Clerk of Fort Portal Tourism City. The said suit was filed on 25th September 2023 and it abated by an Order of Court issued on 31st October 2024. 2. I have perused the Plaint in HCT-01-CV-CS-039 of 2023 and established that the subject matter in the said suit is similar in material particulars with that in the instant Application. As per the Plaint in the said suit, the Applicants alleged that between the period of December 2022 to June 2023, they applied for different jobs for which they became successful and eventually reported for work but that they had since been denied work and access to the payroll. Consequently, the Applicants inter alia sought; *“An order commanding, compelling and directing the defendants to formalise the Plaintiff’s access to the Public Payroll from the date of appointment and assumption of duty in accordance with the Plaintiff’s respective salary scales unconditionally.”* 3. However, in the instant Application, the Applicants primarily sought the following Order; *“An order of mandamus be issued against the Respondent directing him to regularise the Applicant's appointment.”* 4. In the case of **John Jet Tumwebaze vs. Makerere University Council and Ors (Civil Application No. 78 of 2005)**, *Ag. Justice Remmy Kasule* (as he then was) gave the definition of mandamus as follows; *An order of mandamus is issued to compel performance of a statutory duty. It is used to compel public officers having responsibilities in public offices and public bodies to perform duties imposed upon them by an Act of Parliament.* 5. Therefore, the effect of the Order sought in HCT-01-CV-CS-039 of 2023 is identical to that sought in the instant Application since both orders seek to compel the Respondents to regularise their appointment. In the instant Application, in their Notice of Motion, the Applicants used a general term, *“to regularise the Applicant’s appointment”* while in the earlier suit, they were specific and sought an order, “*to formalise their access to the Public Payroll.”* The two phrases however mean one and the same thing and seek the same result. 6. I find no merit in Learned Counsel for the Applicants’ submission that this point of law holds no water since Civil Suit No. 39 of 2021 abated. After careful perusal of the record of both court files, I found that Civil Suit No. 39 of 2023 abated on **31st October 2024** and yet the instant Application was filed on **2nd October 2024** implying that by the time the instant Application was filed, Civil Suit No. 39 of 2024 was still pending before Court and that before 31st October 2024, there were therefore two matters on the same subject matter against the same opponent and on the same issue. Since the instant Application was filed during the pendency of Civil Suit No. 39 of 2023, I find that the instant Application was filed in abuse of Court process since it occasioned a multiplicity of actions at the time. In my view, a subsequent abatement of the earlier and original suit cannot cure the anomaly. 7. Consequently, both the points of law as raised by Counsel for the Respondents are upheld and this matter is accordingly struck out with costs.

I so order.

**Dated at Fort Portal this 25th day of April 2025**


Vincent Wagona

High Court Judge

**FORTPORTAL**