Mpungu v Uhuru & 3 Others (Civil Suit 12 of 2024) [2025] UGHCCD 45 (26 February 2025)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(CIVIL DIVISION)**

**CIVIL SUIT NO. 012 OF 2024**

***MPUNGU HANIPHER::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT***

***VERSUS***

1. ***SALIM SAAD UHURU***

***(Mayor Kampala Central Division Urban Council).***

1. ***TUMUSIIME MAUREEN KABANANURA***

***(Woman Councilor Nakasero Parish,***

***Kampala Central Division Urban Council)***

1. ***KAMPALA CAPITAL CITY AUTHORITY*** 2. ***ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS***

***BEFORE: HON. JUSTICE SSEKAANA MUSA***

**RULING**

This is an Application brought under the provisions of Articles 28(1), 42 & 44 of the Constitution, Section 36 (1) (b), (c), (d), (e) (2), (3), (4) and (7), Section 38 of the Judicature Act, Cap 16 (as amended), Section 98 Civil Procedure Act, Cap. 282 and Rules 3(1), (2), 4, and 6 of the (Judicial Review) Rules, 2009 for the following orders and judicial reliefs;

1. ***Certiorari to quash the decision of the 1st respondent removing the applicant from the position of Deputy Mayor Kampala Central Division Urban Council embedded in his letter dated 25th January, 2024.*** 2. ***Certiorari to Quash the decision of the 1st respondent appointing the 2nd respondent as Deputy Mayor Kampala Central Division Urban Council embedded in his letter dated 25th January*** 3. ***Prohibition restraining the respondents, their agents, assignees, successors in title or any other person from claiming similar authority from implementing and enforcing the decision of the 1st respondent communicated in a letter dated 25th January, 2024, removing the Applicant from the position of the Deputy mayor Kampala Central Division Urban Council and appointing the 2nd respondent as the Deputy mayor Kampala Central Division Urban Council.*** 4. ***An injunction be to restrain the respondents, their agents or servants and any other public bodies, institutions and personalities from implementing and enforcing the impugned orders of the 1st respondent removed the Applicant from the position of Deputy Mayor Kampala Central Division Urban Council and appointed the 2nd Respondent as the Deputy mayor Kampala Central Division Urban Council.*** 5. ***A declaration that the 1st respondent acted illegally, irrational and seriously flouted the producers bestowed upon him in executing his duties when he took a decision communicated in the letter dated 25th January, 2024 removing the Applicant from the Position of Deputy Mayor Central Division Urban Council.*** 6. ***A declaration that the acts of the 1st respondent in removing the applicant as Deputy Mayor Kampala Central Division Urban Council in his letter dated 25th January, 2024 are null and void.*** 7. ***A declaration that the 1st respondent acted without lawful authority to do so in removing the applicant from the position of Deputy Mayor Kampala Central Division Urban Council and appointing the 2nd Respondent as the Deputy Mayor Kampala Central Division Urban Council in his letter dated 25th January 2024.*** 8. ***A* declaration t*hat the opinion of the 4th respondent by its letter dated 23rd February, 2024 is null and void.*** 9. ***Prohibition, prohibiting the respondents from further recognizing the Unlawful appointment of Tumisime Maureen Kabananura the 2nd Respondent as the Deputy Mayor Kampala Central Division Urban Council.*** 10. ***An injunction restraining the respondents from interfering with the applicant's position as the Deputy mayor Kampala Central Division Urban Council.*** 11. ***Prohibiting restraining the 3rd and 4th respondents from constituting a tribunal to investigate the Applicant.*** 12. ***General damages for stress, mental anguish and inconvenience suffered by the Applicant as a result of the 1st Respondent’s decision for which the 3rd Respondent is vicariously liable.*** 13. ***Costs of this Application.***

The application is supported by an affidavit from the applicant, outlining the grounds but briefly are that:

1. The applicant was elected as a woman Councilor representing Old Kampala Parish in 2021 general elections and was subsequently appointed as Deputy Mayor representing Kampala Central Division Urban Council by the 1st Respondent with the approval of the Division Urban Council. 2. The 1st respondent did not observe the rules of natural justice before arriving at the decision by which he removed the applicant from the Deputy Mayor position of Deputy Mayor Kampala Central Division Urban Council and appointing the 2nd Respondent as the Deputy Mayor Kampala Central Division Urban Council in his letter dated 25th January, 2024. 3. The 1st respondent acted with manifest of bias and extreme recklessness in the process of arriving at the decision dated 25th January, 2024 by which he removed the applicant from the position of the Deputy Mayor Kampala Central Division Urban Council and appointed the 2nd respondent as the Deputy Mayor Kampala Central Division Urban Council. 4. The 1st respondent had no legal authority and or mandate to remove the applicant from the Deputy Mayor Kampala Central Division Urban Council and appointing the 2nd respondent as the Deputy Mayor Kampala Central Division Urban Council in his letter dated 25th January, 2024. 5. The 1st respondent never offered the applicant with any right to be heard before arriving at the impugned orders and he acted ultra vires in as far as reaching the said decision dated 25th January, 2024.

The 1st respondent filed an affidavit in reply through **SALIM SAAD UHURU,** Mayor Kampala Central Division Urban Council, stating that;

1. That I was subsequently guided by the Executive Director Kampala capital city Authority on 5th /2/2024 that the removal and replacement of the Deputy Mayor had been done irregularly 2. That all the issues relating to the applicant's removal from office before and after 25th /1/2024 and all the allegations of unfairness made by the Applicant in this matter collapsed with the termination and rescission of the process vide annexture . C,, herein above, which rescission decision was taken even after Hon. Tumusiime Maureen Kabananura had purportedly been sworn in on 25th /1/2024 and not on 12th March 2024 as falsely stated by the applicant. 3. That on 6th/2/2024, an entirely new, separate and fresh process of determining whether or not the Applicant should be removed from office was initiated by the Council Committee of Kampala Central Division in the petition seeking to investigate the conduct of the Applicant, which I forwarded to the Minister of Kampala and Metropolitan Affairs on 6th/2/2024, in line with the advice of the Executive Director KCCA. 4. That the Attorney General communicated to the Minister of Kampala and Metropolitan Affairs expressing official opinion that after evaluating the petition, there was a prima facie case necessitating a tribunal to be constituted to investigate the allegations made against the applicant. 5. That ever since the irregular process of relieving the applicant of her duties was rescinded on 6th /2/2024, the Applicant has been and is still in office as Deputy Mayor of Kampala central Division with full rights and privileges and she draws a salary for the same position from the treasury. 6. That intention is simply to block a lawful process of investigating her conduct which was commenced on 6th/2/2024 with a petition to the Minister of Kampala and Metropolitan Affair. 7. That the instant application is incompetent, moot and bad in Iaw for it presents no subsisting decision to be reviewed and that the same ought to be dismissed with costs.

The 2nd Respondent filed an affidavit in reply through TUMUSIIME MAUREEN KABANANURA the appointed Deputy Mayor by the 2nd respondent stating that;

1. That apart from being appointed as Deputy Mayor on 25th /January/2024 and sworn in on the same day which, which appointment and process was wholly reversed on 6th /2/2024. 2. That consequent to the removal of the applicant from the position of the Deputy Mayor Kampala Central Division on 25th January 2024, which subsequently aborted on 6th February 2024, I was appointed by the 1st Respondent on 25th January 2024 and by council as the new Deputy Mayor of Kampala Central Division and I was sworn in during the council meeting which convened on the same day. 3. That subsequently, I learnt that the Executive Director Kampala Capital City Authority guided the 1st respondent and Council that the removal of the applicant had not followed the due process and for which she guided all Division Mayors on the procedure to follow while removing Deputy Mayors. 4. That on 6th February 2024, I received a letter from the 1st respondent, addressed to the applicant and copied to me among others, which letter was reversing my appointment as Deputy Mayor Kampala Central Division. 5. That consequent to the rescission of the decision by the 1st respondent dropping the applicant as Deputy Mayor, all councilors of Kampala Central Division including myself made a petition to the Minister of Kampala and Metropolitan Affairs requesting to investigate the conduct of the Applicant which in view of the entire council is wanting and this initiated a new and separate process to investigate the conduct of the applicant , distinct and detach from the earlier process which aborted with a reversal by the 1st Respondent. 6. That all issues relating to the applicant’s removal from office before and after 25th / 1/ 2024 and the allegations of unfairness by the Applicant to which I was not a party collapsed with the termination and rescission of her removal from office and the termination of my appointment as Deputy Mayor. 7. That the process of investigating the conduct of the Applicant which started on 6th /2/2024 with the council petition, has nothing to do with her earlier removal from office and the same process is new and separately undertaken, following the due process after the rescission of the decision appointing me as Deputy Mayor. 8. That since the applicant is aware that my appointment as Deputy Mayor was reversed, her intention is to frustrate the intended investigation into her conduct hiding under the process of her removal from office which was reversed. 9. That for a short time I was appointed Deputy Mayor until the reversal of my appointment, I never enjoyed any privileges attached to the office of the Deputy Mayor and I do not enjoy any since I am not the Deputy Mayor and I know for the fact that the Applicant is still the Deputy Mayor though pending to be investigated in accordance with the process.

The 3rd Respondent file its Affidavit through *Dan Muhumuza the Clerk* to the 3rd Respondent stating that;

1. The present application before this court is premature, incompetent and fatally defective as it seeks to restrain the 3rd and 4th Respondents, agents, servants and employees from exercising a statutory mandate i.e. constituting a tribunal to investigate the applicant. 2. That the 3rd respondent has accordingly not implemented the decision of Kampala Central Division to remove the Deputy Mayor and the applicant is still being paid as the Deputy Mayor of Kampala Central Division. 3. That the Kampala City Central Division Councilors on 8th February 2024 invoked the provisions of Section 12 and 32 of the Kampala and Metropolitan Affairs for the removal of the applicant from the office of Deputy Mayor. 4. That in the circumstances, the decision of the 1st respondent removing the applicant has been overtaken by events and the matter is being handled by the Minister, as required by law. 5. That the applicant seeks to shield herself from statutory processes i.e. constituting a tribunal to investigate her, without any justification. 6. That it is in the interest of substantive justice and equity that the court exercise its inherent power and discretion to dismiss this application with costs to the 3rd respondent.

**The following Issues were raised for determination.**

1. *Whether the 1st respondent's decision to remove the applicant from office as the Deputy Mayor Kampala Central Division was subsisting during the time of filing this application for Judicial Review?* 2. *And if so whether it was illegal?* 3. *Whether the Constitution of the Tribunal is lawful* 4. *What remedies are available to the parties*

***The Legal Representation***

The applicant was represented by *Counsel Ben Ikilai and Counsel Oluka James* while the 1st and 2nd respondents were represented by *Counsel Ambrose Tebyasa* and the 3rd respondents was represented by *Counsel Jackeline Hellen Atugonza.*

The parties were directed to file their submissions. I have duly considered the affidavit evidence for all the parties and their respective submissions.

***DETERMINATION***

***Whether the 1st respondent's decision to remove the applicant from office as the Deputy Mayor Kampala Central Division was subsisting during the time of filing this application for Judicial Review? And if so whether it was illegal?***

The applicant’s counsel contended that their removal from office as Deputy Mayor Kampala Central Division was illegal and the decision was not subsisting when the application for judicial review was filed.

The applicant submitted that the decision to remove them was rescinded on 6th February, 2024, making it an afterthought aimed at defeating justice and never served to the applicant. The applicant argued that the 3rd respondent - Kampala Capital City Authority Council should not have issued a Notice dated 5th March, 2024 for a special Council Meeting to discuss the applicant's removal.

The applicant also submitted that the decision for removal was never in existence before the application for Judicial Review was filed in Court.

In response, counsel for the 1st and 2nd respondents argued that the 1st respondent’s decision made on 25th /1/2024 removing the applicant was subsisting at the time of filing the case. However, the same decision was rescinded on 6th /2/2024, before the instant application was filed in court.

Counsel submitted that the letter of rescission was authored after the case was filed and backdated to allegedly defeat the applicant’s claim. This submission is based on conjecture and baseless claims.

The 1st respondent rescinded the decision after getting guidance from the Executive director Kampala Capital City Authority. The applicant received the rescission letter. The applicant remains in office with her full rights after the rescission of her disposal letter.

The 3rd respondent argued that that the application should be quashed because the applicant was already overtaken by events since she still holds the office and is being paid as such by the 3rd respondent.

Lastly, the decision was rescinded on 6th /2/2024 before the application was filed, and the 3rd respondent had taken no action to execute it.

***Analysis***

Judicial review also establishes a clear nexus with the supremacy of the Constitution, in addition to placing a grave duty and responsibility on the judiciary. Therefore, judicial review is both a power and duty given to the courts to ensure supremacy of the Constitution. Judicial review is an incident of supremacy, and the supremacy is affirmed by judicial review.

It is a fundamental principle of the rule of law, recognised widely, that the exercise of public power is only legitimate where lawful. The rule of law-to the extent at least that it expresses this principle of legality-it is generally understood to be a fundamental principle of constitutional law.

A particularly challenging part of lawfulness relates to the reason, purpose or motive for which the action was taken. This is especially the case where the empowering provision grants a wide discretion to the decision maker/administrator.

The 1st respondent exercised the discretionary power for a purpose for which it was never granted. When a decision-maker pursues a purpose outside the ‘four corners’ of the powers, he may do so by taking an “irrelevant consideration” into account. The interpretation of purpose, and the relevance of considerations taken into account in pursuing that purpose are inextricably linked. However, in some cases like the present case, the purpose pursued is to be judged alone without reference to the considerations by which it was linked.

The 1st respondent in pursuing an illegal purpose and personal whims decided to ‘fire’ or dismiss the applicant for reasons which are not related to her job description and or a ‘failed land deal or money deals’. In pursuing this motive, the 1st respondent was pursuing something which was improper, ulterior or extraneous to what was required to be the main reasons for the effective removal of a Deputy Mayor. The 1st respondent motive was clouded by irrelevant considerations which is thus illegal. Improper purpose or motive connotes to moral impropriety and the decision-maker either knowingly pursues a purpose that is different from the one that is ostensibly being pursued, or the motive behind the decision is illicit (based on personal factors such as financial gain, revenge or prejudice).

The 1st respondent’s exercise of power was fraudulently done for an improper purpose, dishonestly to achieve an object other than that which he claims to be seeking. The applicant’s personal life should only affect an office if it is interrelated to what was done and never should personal failures be used to cause a removal especially on mere suspicion. The applicant was merely charged and she is yet to be convicted or found liable for any wrongdoing, it would be absurd to cause her removal on mere allegations which are being perpetuated by private interests of the 1st respondent.

A power is exercised maliciously if its repository is motivated by personal animosity towards those directly affected by its exercise. The 1st respondent’s action or decision to dismiss the applicant was malicious and or an acrimony between the 1st respondent and applicant arising out of personal or political animosity built up in different past dealings. See ***Smith v East Elloe RDC [1986] A. C 736.***

The contention that the said illegal decision had been reversed seems to hold no water since the person who was affected by the decision was never served specifically with the nullification of the decision. The applicant was challenging the wrongful exercise of power by the 1st respondent and it was the same exercise of power which resulted into the subsequent decision which was premised on the same improper motive and it was an attempt to validate the earlier wrongful decisions.

***Whether the constitution of the Tribunal is lawful?***

The applicant’s Counsel submitted that the constitution of the tribunal to investigate the applicant is unlawful because there has never been a Notice issued by Kampala Central Division Council calling for the Council meeting to set up the tribunal.

The applicant argued that no other Council meeting has ever resolved to constitute the tribunal to investigate the applicant.

Counsel also noted that The Hon. Minister's actions requesting the appointment of two persons to constitute part of the Tribunal and the Chief Magistrate seeking guidance are of no legal basis and unlawful.

While the 1st and 2nd respondents argued that the removal of the Applicant from the office of Deputy Mayor Kampala Central Division was irregular. The decision is well aware that it was rescinded but insists on its existence because of her convenience.

The applicant is trying to block the Kampala Central Division from raising concerns about their leader and to stop the designated lawful offices of the Minister of Kampala Capital City & Metropolitan Affairs from conducting and executing their mandate over matters regarding the leaders in Kampala Central Division once they receive petitions from council members.

The constitution of the tribunal by the Minister is lawful. The application is to stop the tribunal since the council for Kampala Central Division, the Minister of Kampala Capital City & Metropolitan Affairs and the Attorney General are all operating within the provisions of the KCCA Act.

Counsel for the 3rd respondent argued that the removal of the applicant was irregular and illegal, lacking proper guidance from the Executive Director of the 3rd respondent.

The 1st respondent sought to correct and rescind the decision on 6th /2/2024, indicating that the Applicant's insistence on this issue is misguided.

The Minister is empowered under Section 12 (5) of the Kampala Capital City Act to constitute a tribunal after consultation with the Attorney General if sufficient grounds are found.

The 3rd respondent argued that the applicant cannot prevent a statutory body from executing its mandate. The process leading to the constitution of the Tribunal was initiated by the 1st respondent through a two-thirds majority of the Central Urban Division Councilors. The Minister consulted the 4th respondent and followed the law, ensuring the process was legal, fair, and rational.

***Analysis***

A patently unreasonable decision like in this case reflects unfairness, bad faith, victimization and bias on the part of the 1st respondent. The process leading to the constitution of the tribunal was a *malafide* exercise of power or, in other words, an act of victimization, thus avoiding a fair enquiry into the absence of a resolution of a properly constituted meeting. It was a clear case of trying to find any irrational reason to deny the applicant an opportunity to continue to serve out as the Deputy Mayor Central Division. The 1st respondent tried to bulldoze the Council into a mob to make allegations of misconduct, misbehavior and abuse of office See ***R Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 CLJ 147***

Fundamental to the legitimacy of public decision-making is the principle that official decisions should not be infected with improper motives such as fraud or dishonesty, malice or personal interest. These motives, which have the effect of distorting or unfairly biasing the decision-maker’s approach to the subject of the decision, automatically cause the decision to be taken for an improper purpose and thus take it outside the permissible parameters of the power. The Central Division Urban Council exercised the power maliciously with the sole intention of appeasing the 1st and 2nd respondent and it was motivated by personal animosity towards the applicant.

The opinion of the Attorney General is quite revealing about the allegations made against the applicant. The alleged petition against the applicant was only sustained on one ground of misconduct and misbehavior of the applicant. The allegation is as wide and amorphous with cogency of any evidence to sustain the same. The fact that the applicant was charged in a court with charges of obtaining money by false pretence. The said charges could be settled out of court, which is an indication that they are not serious charges to be used to cause a constitution of the tribunal for the applicant’s removal. Not every allegation or charge without conviction should be used to cause the removal of a person on ground of misconduct or misbehavior.

The alleged commission of the offence of obtaining money by false pretence and the manner of reaching such a decision was based on considerations which were accorded manifestly inappropriate weight. The decision of the Central Division Urban Council resolution was supported by inadequate or incomprehensible reasons which resulted in the recommendation of removal of the applicant from office which is apparently illogical or arbitrary.

The constitution of the tribunal was infected with improper motives since the 1st respondent was driven by personal animosity against the applicant.

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

The court issues the following orders;

1. ***An Order of Certiorari issues quash the decision of the 1st respondent to remove the applicant from the position of Deputy Mayor Kampala Central Division Urban Council embedded in his letter dated 25th January, 2024.*** 2. ***An Order of Certiorari issues to quash the decision of the 1st respondent appointing the 2nd respondent as Deputy Mayor Kampala Central Division Urban Council embedded in his letter dated 25th January, 2024.*** 3. ***An Order of Prohibition issues restraining the 3rd and 4th respondents from constituting a tribunal to investigate the applicant as premised on insufficient grounds and improper motives by the 1st respondent.*** 4. ***The applicant is awarded costs of the application.***

***I so Order***

***Ssekaana Musa***

***Judge***

***This ruling is delivered by the Registrar this………day of February 2025***