Makondere v Kyenjojo District Local Government (HCT-01-CV-MA-0012-2025) [2025] UGHC 275 (25 April 2025)

**THE REPUBLIC OF UGANDA**

**IN THE HIGHCOURT OF UGANDA AT FORT PORTAL**

**HCT-01-CV-MA-0012-2025**

**(ARISING OUT OF HCT-01-CV-CS-0038-2024)**

**MAKONDERE B. K AGAPITO :::::::::::::::::::::::::::::::::::: APPLICANT**

**VERSUS**

**KYENJOJO DISTRICT LOCAL GOVERNMENT::::::::: RESPONDENT**

**BEFORE HON. JUSTICE VINCENT WAGONA**

**RULING**

**Introduction**

1. The Applicant brought this Application by Chamber Summons under Section 33 Judicature Act, Section 98 of the Civil Procedure Act, Order 41 Rule 1 (a) & 9 of the Civil Procedure Rules seeking Orders that; - 2. **A declaration that the Respondent has altered the status quo, and is wittingly acting sub judice in abuse of Court process, to defeat Applicant’s ends of justice in Civil Suit No. 38 of 2024.** 3. **A Temporary mandatory injunction doth issue, directing the Respondent, its legal representatives, agents, servants, or any person or officer claiming to be acting on its behalf; to rescind its minute/decision/removal/ reduction in rank or termination of the Applicant’s current terms of service and to maintain/reinstate the Applicant’s current appointment as Town Clerk/Principal Township Officer Scale U2, until the determination of Civil Suit No. 38 of 2024 or further orders of this Court.** 4. **That costs of the Application be provided for.**

**Grounds of the Application**:

1. The brief grounds of the Application as contained in the Applicant’s Affidavit in Support thereof are as follows; - 2. The Applicant is an employee of the Respondent appointed and duly deployed at Butiiti Town Council as a substantive Town Clerk/Principal Township Officer Salary Scale U2 since the 19" June, 2023, which is about 19 months (1 year and 9 months now). 3. That following the Applicant’s appointment, posting and assumption of duty, in July 2023; the Respondent without notice or justified reason breached the Applicant’s terms of his revised employment by not effecting any pay changes on the payroll, prompting the Applicant and 14 others to file Civil Suit No. 38 of 2024 in which they seek several declarations and other orders including specific performance and that the said suit is still pending determination. 4. That on 11th February, 2025 duly aware of the main suit against it, and, in total disregard of the said suit and applicant's written protest, the Respondent went ahead and rescinded the minute on which the Applicant was appointed as Town Clerk/Principal Township Officer Scale U2 purporting to demote him without charge or termination of his employment with the Respondent as Town Clerk Scale U2, and has not paid his salary arrears for the period worked in that position. 5. That the whole administrative processes leading to rescission of his appointment were intentional, malicious and *sub judice* of pending suit No. 38 of 2024 is thus illegal, null and *void ab initio*. 6. That the Applicant will suffer irreparable damage by the actions of the Respondent unless abated by this Court's temporary mandatory injunction restoring the status quo as at the time the main suit was filed. 7. That the main suit is merited and has a high likelihood of success and that the balance of convenience is in favour of granting the orders sought, given that the Respondent will not be prejudiced in any way.

**The Respondent’s Reply**:

1. The Respondent opposed this Application through the Affidavit in Reply of ***Busingye Daniel***, the Respondent’s Acting Principal Assistant Secretary, in which it was averred, in brief as follows; - 2. The Applicant applied for the position of the Town Clerk /Principal Township Officer and he was erroneously appointed on promotion as he did not possess the requisite qualifications thereby making his appointment illegal and irregular. 3. That as a result, on 30th August 2024, the Public Service Commission guided the Chief Administrative Office of the Respondent to rescind the minute appointing the Applicant as Principal Township Officer. 4. That subsequently, the Applicant’s appointment on promotion, as Principal Township Officer, was rescinded after according him a fair hearing and that consequently, on 19th February 2025, the Applicant was transferred from Butiti Town Council to Kisojo Sub-county as a Senior Assistant Secretary with immediate effect. 5. That there were no Court Orders stopping the Respondent’s said administrative processes and that what the Applicant is seeking to injunct has already been overtaken by events since the decision was already made by the District Service Commission and implemented by the Chief Administrative Officer. 6. That the Applicant is now substantively employed as a Principal Assistant Secretary of Kisojo Sub-county, Kyenjojo District.

**The Applicant’s Rejoinder**:

1. In Rejoinder, the Applicant was dismissive of the Respondent’s averments and mainly reiterated his averments in the Affidavit in Support of the Application. The Applicant contended that he was duly vetted and found qualified before he was offered the appointment as Town Clerk/Principal Township Officer.

**Representation and Hearing**:

1. The Applicant was represented by *M/s Ingura & Co. Advocates* while the Respondent is represented by the Attorney General’s chambers. Both parties addressed me by way of written submissions which I have duly considered.

**Applicant’s Written Submissions**:

1. Learned Counsel for the Applicant submitted that mandatory injunctions are granted generally to preserve/restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when the full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. That the principles that ought to be met before an interlocutory mandatory injunction is granted are that; - 2. The Applicant has a strong case for trial, that is, that the standard should be higher than that of a prima facie case that is often required for grant of a prohibitory injunction. 3. The grant of an interlocutory mandatory injunction is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. 4. The balance of convenience is in favour of the one seeking grant of relief of interlocutory mandatory injunction. 5. That these principles are neither exhaustive nor complete or absolute. Counsel referred me to the case of **Dorab Cawasji Warden vs. Coomi Sorab Warden & Ors, (1990) 2 SCC 117** and the case of **Rashida Abdul Hanali & Anor vs. Sulaiman Adrisi, HCMA No. 11 of 2017**. Counsel reiterated the averments of the Applicant’s Affidavit in Support of the Application and submitted that the Respondent is guilty of having intentionally worked to harm merits of the pending Civil Suit No. 38 of 2024 and that the Respondent is guilty of intentional *sub judice*, abuse of court process and practice intended to prejudice the Applicant by rendering his claim nugatory. That the balance of convenience is in favour of the Applicant who will lose a job or suffer demotion in rank.

**Respondent’s Submissions**:

1. Learned Counsel for the Respondent referred me to the case of **E. I Kiyimba Kaggwa vs. Hajji Abdul Nasser Katende [1985] HCB 43** for the requirements one has to meet before being granted a temporary injunction, namely, that the Applicant must show a prima facie case with a probability of case, that the Applicant will suffer irreparable damage which cannot be adequately compensated by any award of damages and that if the court is in doubt, it would decide an application on the balance of convenience. 2. That the Applicant’s recruitment was illegal and in total disregard of the legally established public service recruitment processes. The Applicant appealed against the rescission of his appointment to the public service but his appeal was disallowed for lack of the requisite qualifications and experience as per the public service framework. Learned Counsel asked this Honourable Court to dismiss the instant Application since the Respondent was only executing her administrative mandate and implementing the guidance from the Public Service Commission to rectify the irregularities in appointment of the Applicant. That as it was stated in **R vs. Secretary of State for Transport Ex.p Factor Tame Ltd [1990] 2 AC 85** that courts cannot as matter of law grant an injunction which will have the effect of suspending the operation of the legislature. 3. Learned Counsel further submitted that the Applicant together with 12 others filed Civil Suit No. 38 of 2024 in which they seek special, general, and punitive damages and an order of specific performance in the main cause. That as per the case of **Zam Nambi vs. Bujjingo & 2 Ors, HCMA No. 1013 of 2015**, a prayer for damages shows a possibility of compensation. That the prayers for damages by the Applicant in Civil Suit No. 38 of 2024 shows that the alleged damages can be adequately compensated by an award of damages. Accordingly, that the Applicant does not meet second consideration for grant of a temporary injunction. Finally, that the Applicant will not be prejudiced by the dismissal of this Application as he is a substantive Senior Assistant Secretary/Sub County Chief of Kisojo Sub County, Kyenjojo District. Counsel prayed that the Application be dismissed with costs to the Respondent.

**CONSIDERATION OF THE APPLICATION**

1. A **temporary mandatory injunction,** is a court order compelling a party to take a specific action, rather than refrain from doing something, before the main case is decided. Injunctions can be either **mandatory** or **prohibitory**. Prohibitory injunctions, which are more common, order a party to stop doing something. Mandatory injunctions, on the other hand, order a party to take a specific action. The purpose of a temporary injunction, whether mandatory or prohibitory, is to preserve the **status quo** until the main case is resolved. To obtain a temporary injunction, an applicant must among others demonstrate a prima facie case with a probability of success, and that they would suffer irreparable harm if the injunction is not granted. It is granted in cases where monetary compensation would afford an inadequate remedy to an injured party. *(see****Black’s Law Dictionary 9th Ed page 855).*** 2. A Mandatory Injunction is usually granted to restore the status quo that was existing as at the time when the suit was filed. In the case of **Shepherd Homes vs. Sandham, [1970] 3 WLR 348 at page 356**, *Megarry J* (as he then was), drew the distinction between a prohibitory and a mandatory injunction as follows; -

***“whereas a prohibitory injunction merely requires abstention from acting, a mandatory injunction requires the taking of positive steps, and may (as in the present case) require the dismantling or destruction of something already erected, or constructed. This will result in a consequent waste of time, money and materials if it is ultimately established that the defendant was entitled to retain the erection.”***

1. Therefore, since a mandatory injunction may have a future undesirous result of wasting time, money or materials when it is ultimately and eventually determined in the main suit that the Respondent/Defendant was justified in doing the act complained of, mandatory injunctions are granted with reluctance and only in exceptional and clearest cases and more so in very special circumstances. In the case of **Kenya Breweries Limited & Another vs. Washingtone O. Okeyo Civil Appeal No. 332 of 2000 [2002] 1 EA 109** the Court of Appeal of Kenya stated as follows:

**“*A mandatory injunction can be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not normally be granted. However if the case is clear and one which the Court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff, a mandatory injunction will be granted on an interlocutory application…A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the Court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory injunction the Court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction*.”**

1. Therefore, to obtain a mandatory injunction, the applicant needs to demonstrate a higher standard of proof than for a prohibitory injunction, including establishing a prima facie case with high chances of success, irreparable harm, and the balance of convenience in their favour, along with the existence of special circumstances.

***Prima Facie Case With High Chances of Success:***

1. The Applicant states under **Paragraphs 8** and **9** of his Affidavit in Support of the Application as follows: -

*“8. THAT I know that, on 11th February, 2025 duly aware of the main suit against it and in total disregard of my written protest, went and rescinded the minute on which I was appointed as Town clerk/Principal Township Officer Scale U2 purporting to demote me without charge, or termination of my employment with the Respondent as Town Clerk Scale U2 and have not even paid my salary arrears for the period worked in that position (19 months of contract performance).* ***See copy of rescission letter is attached and marked ‘I’****.*

*9. THAT I am totally in disagreement with the Respondent’s unilateral alteration of my current revised and binding terms of service, as it was done intentionally in bad faith and in abuse of this Court process to defeat my ques for justice.”*

1. The above averments are confirmed by the Respondent’s Affidavit in Reply, which states under **Paragraphs 8, 9, 10** and **11** that, due to the Applicant’s irregular appointment, the Public Service Commission guided the Chief Administrative Officer of the Respondent to rescind the minute appointing the Applicant as Principal Township Officer and that accordingly, the District Service Commission rescinded the minute appointing the Applicant as Principal Township Officer Scale U2. 2. The net effect of the instant Application for a mandatory injunction as well as the remedies sought in the main suit is to reinstate the Applicant to his position as Principal Township Officer Scale U2 until the determination of Civil Suit No. 38 of 2024. 3. According to **Employment Law** **3rd Ed. Page 271**,*“reinstatement means and requires the employer to treat the employee in all respects as if he had not been dismissed, thus his pay; pension; seniority rights etc, must be restored to him and he will benefit from any improvement in terms and conditions which came into operation whilst he was dismissed.* However, the Respondent has protest the reinstatement of the Applicant through a mandatory injunction that since according to the Public Service Commission, the Applicant does not have the requisite qualifications to serve at the rank of a Town Clerk/Principal Township Officer. According to **Paragraph 15** of the Affidavit in Reply, the Respondent has already transferred the Applicant from Butiiti Town Council to Kisojo Sub County where he is deployed as a Senior Assistant Secretary. It is therefore evident that the Respondent no longer wishes to engage the Applicant as its Town Clerk. In the case of **Bank of Uganda vs. Betty Tinkamanyire, Civil Appeal No. 1 of 1998 (SC)**, *Kanyeihamba JSC*, stated that: **“*it is trite that, a court of law should not use its powers to force an employer to retake an employee it no longer wishes to continue to engage. However, depending on the circumstances, an employee who is unfairly or unlawfully dismissed, as in this case, should be compensated adequately in accordance with the law*.”** 4. Further, since it is yet to be established whether indeed the Applicant was unlawfully demoted or terminated, and whether he was qualified to serve as a Town Clerk, it is risky to reinstate him since a subsequent finding that he was an unqualified Town Clerk who was remunerated as such yet he may not have met the expected performance as a result of being under-qualified, would probably cause financial loss to the local government. I am also guided by the principle in **Shepherd Homes vs. Sandham (Supra)**, that a mandatory injunction requires the taking of positive steps, and may subsequently require the dismantling or destruction or undoing of something already done. In the instant case, that leaves a possibility of wasting of time and money if it is ultimately established that the Respondent was justified in rescinding the Applicant’s appointment as Town Clerk. 5. I find that the Applicant fails to establish a prema-facie case with high chances of success regarding his sought reinstatement to the position of Principal Township Officer Scale U2 which is among the intended effects of bringing Civil Suit No. 38 of 2024. There is a possibility of wasting of time and money if the applicant is re-instated through this application and it is ultimately established in the main suit that the Respondent was justified in rescinding the Applicant’s appointment as Town Clerk.

***Irreparable Harm:***

1. In the instant case, it has not yet been determined whether the Applicant was unfairly demoted or terminated from his position as Town Clerk. However, an injunction can only be granted in cases where monetary compensation would afford an inadequate remedy to an injured party. In this case, the Applicant has not demonstrated whether monetary compensation would be an inadequate remedy if it were to be established in the substantive suit that his demotion or termination was illegal. In employment matters, damages are usually an adequate remedy, since in deserving cases, damages can even cater for lost and future earnings. Additionally, this court is bound to apply the common law principle that an employer should not be forced to retake an employee, that the employer no longer wishes to continue to engage. **See also Barclays Bank of Uganda vs. Godfrey Mubiru. Civil Appeal No 1 of 1998 (SC) (unreported).**

***Special Circumstances:***

1. There are no special or exceptional circumstances in the instant case to warrant the grant of a mandatory temporary injunction and

**Conclusion**

1. This Application therefore fails and is hereby dismissed with costs.

It is so Ordered.

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


Vincent Wagona

**High Court Judge**

**FORTPORTAL**