Mwesige & Another v Kampala Capital City Authority & Another (Miscellaneous Cause 12 of 2023) [2023] UGHCCD 396 (27 October 2023)

### THE REPUBLIC OF UGANDA

#### IN THE HIGH OF UGANDA AT KAMPALA

## [CIVIL DIVISION]

#### **MISCELLANEOUS CAUSE NO. 12 OF 2023**

1. MWESIGE SAMUEL

2. SSENDAULA MOSES ========================= APPLICANTS

#### **VERSUS**

1. KAMPALA CAPITAL CITY AUTHORITY

2. KWESIGA STUART ================ RESPONDENT S

### **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

#### **RULING**

This application is by notice of motion under Article 50 of the 1995 constitution, section 3 (1), 4 (1&2), 9(2) (iii), (iv), (vi) of the Human Rights Enforcement Act and Rule 5(1) (a), 6(1) (a), 7(1) and 8 of the Judicature (Fundamental and other Human Rights and Freedoms Enforcement Procedure Rules of 2019 seeking for orders that; -

- 1. A declaration that the acts of the 1st Respondent's agent under the command of the 2nd Respondent of arresting the 1st Appellant falsely accusing him of being a road side vendor and subjecting him to torture detaining him at Kira Road Police Station were illegal, unconstitutional and violated the 1st Applicant's constitutional rights protected under articles 20, 23, 24, 44(a) & (c) of the Constitution. - 2. A declaration that the acts of the 1st Respondent's law enforcement officers of turning themselves into the complainants, investigators, prosecutors, a court of law and arbitrarily reaching the conclusion that the 1st Applicant was a road side vendor were unconstitutional, unfair, illegal violated the applicant's right to be heard protected under Articles 28 and 44(c) of the constitution. - 3. A declaration that the acts of the 1st Respondent's agents of subjecting the 2 nd Applicant to torture through beating with sticks, metallic wires and subsequently detaining him at Kira Road Police Station for pleading with

them to stop beating the 1st Applicant were illegal, unconstitutional and violated the 2nd Applicant's constitutional rights protected under Articles 20, 23, 24, 28, 44 a & c of the constitution.

- 4. An order directing the Respondents jointly and severally to pay general damages, and punitive damages to the Applicants as compensation for violation of their rights. - 5. An order directing the Respondents to pay the costs and incidental to this Application.

The application is supported by the affidavits of Mwesiga Samuel the 1st applicant, Ssendaula Moses the 2nd Applicant, Nabweteme Carol Mwesigwa and Sonko Robert whose details are on record.

- 1. **Mwesige Samuel** the 1st applicant briefly stated that on 5th September 2022 at around 8:00pm together with my wife and son while at Ndundu Complex where I had stopped to buy food stuffs, I was approached by law enforcement officers of the 1st Respondent dressed in plain clothes and others in the law enforcement uniform under the command of the 2nd Respondent falsely accused me of being a road side vendor and started beating me using metallic rods, wires and sticks to the extent of losing my consciousness. - 2. My efforts to cry out for help were futile as people feared the officers of the respondent. Those actions humiliated and degraded me in the presence of my wife and son. - 3. Due to the merciless beatings from the agents of the Respondent I lost my conscience which I regained hours later while at Kira Road police station where the 2nd Respondent turned himself into a complainant and trumped up charges of assault against me. - 4. I also lodged criminal complaint against the 2nd Respondent at the same police station for the offence of grievous harm vide SD REF; 53/06/09/2022 but no step was taken to investigate and charge the 2nd Respondent. - 5. I was released on bond on 6th September 2022 and referred to the police surgeon who conducted a medical examination on me and confirmed that I was tortured on the fateful day. - 6. Since the beating had fractured my jaws and broken my teeth, on 6th day of September I visited a dentist as one of the steps to repair my teeth but since I had several injuries, I was recommended to undergo surgery for dentures and bridges whose cost I have even failed to meet.

- 7. I had lost sight since my left eye had been injured during the beating and upon conducting an optical examination, it was established that my eye had blood clots which required an immediate operation for it to be saved. - 8. I was also humiliated in the eyes of my family, friends, clients who read the Bukedde newspaper of 7th September 2022 where it was reported that I was a vendor and that I had been beaten and arrested by law enforcement officers. - 9. I have been advised by my lawyer whose advise I verily believe to be true that the impugned acts of the Respondents violated my constitutionally guaranteed rights to a fair hearing, respect for human dignity and protection from inhuman treatment provided for under the constitution. - 1. **Sendaula Moses** the 2nd applicant stated that on 5 th September 2022 at around 8:00pm we were at Ndundu Complex, we saw the 1 st applicant being beaten by the law enforcement officers of the 1st Respondent commanded by the 2nd Respondent. - 2. We feared to go and rescue the applicant because we knew of the highhandedness of the Respondents enforcement officers. - 3. After some minutes a woman came running to where we were standing requesting us to go save her husband from the Respondents officers. - 4. I got concerned seeing how helpless the woman was crying for help. I moved and tried to plead with the law enforcement officers but they instead turned against me and started beating me stating in which capacity am speaking to them. They beat me severally and carried me and put me at the patrol car that was waiting. - 5. The 1st applicant also badly beaten and unconscious was carried and thrown to the patrol car and we were driven to Kira Road Police Station where we spend a night. - 6. The following day 6th because of the 1st applicant's deteriorating health was given bond and I was taken to court where though I knew I had not committed the offence, but for fear of being taken to prison, I pleaded guilty to the charge and I was given a fine of 200,000/= which I paid and I was released. - 7. Due to the severe beatings by the Respondents I had to seek medical treatments upon release from court. - 8. I agree with the advise of my lawyers that the actions of the Respondents violated my constitutionally guaranteed rights.

**Nandaula Carol Mwesiga** a wife to the 1st applicant deponed the same facts as stated by the 1st and 2nd applicants.

**Ssonko Robert** the vendor of chicken stated that the Respondents found the 1 st applicant buying chicken and they started beating him. For me I escaped and hid somewhere but the Respondents officials continued beating the 1 st applicants and took him to police.

The 1st Respondent opposed the application and in the affidavit sworn by **Odok Michael** stated that;-

- 1. On the 10th September 2022 at around 10:00hrs, I was instructed by the 1st Respondent's manager Security and enforcement to investigate a reported case at Kira Road Police arising out of the enforcement activities at Kisaasi in Kawempe Division on 5th September 2022. - 2. On the same day I went to Kira Road Police station, investigated the matter and compiled a report after interviewing CPL Byabasaija Albert who received the suspects, the investigating officer Birabea Nabirah, the DPC Kira Road Police Station Mr. Sebuyongo and the enforcement team members. - 3. I established that on 5th September 2022 at around 19:30am, the 1st Respondent's enforcement team together with UPDF soldiers and police officers carried out a motorized patrol commanded by the 2nd Respondent aimed at ensuring trade order by removing illegal vendors from the streets at Kisaasi, Kawempe Division. - 4. During the enforcement exercise a person was found vending chips and chicken on the street and as the 2nd Respondent was effecting arrest of the vendor, a group of about 15 men came and obstructed the arrest by beating the 2nd Respondent with pool table sticks and was rescued by the UPDF soldiers and Police, arrested the mob and took them to Kira Road Police Station and later taken to court.

The 2 nd Respondents opposed the application and in affidavit sworn by **Kwesiga Stuart** the 2nd Respondent a Law Enforcement Assistant employed by the 1st Respondent whose details are on record briefly stated that; -

1. The 1st Respondent is charged with the mandate of assisting in the maintenance of law, order and security and prohibition, restriction, regulation or licensing the sale or hawking of wares or the erection of stalls on any streets, or the use of any part of the street or public for the purpose of carrying on any trade, business or profession among others.

- 2. As a law enforcement Assistant of the 1st Respondent my duties include coordination of implementation of trade order law enforcement programs in my unit of command, preparing and implementing plans to be followed by the enforcement plan. - 3. On 5th August 2022 at around 19:30hrs, I commanded a motorized patrol of the 1st Respondent's enforcement team together with UPDF soldiers and police officers aimed at ensuring trade order by removing vendors from the streets at Kisaasi Kawempe Division. - 4. During the enforcement exercise, a person was found vending chicken and chips on the street at Ndundu, and as I executed an arrest of the vendor, a group of about 15 men, led by the 1st Applicant attacked me and beat me with pool table sticks on the head and shoulders and obstructed the arrest of the said vendors. - 5. I was rescued from the violent mob by the UPDF soldiers and Police who witnessed the assault on my person and obstruction of arrest by the Applicants removed some of the pool table sticks from my attackers who then picked stones and fought them as well. - 6. The Respondents enforcement team together with police and the UPDF soldiers arrested the suspects, including the Applicants. - 7. The suspects were arrested and detained at Kira Police Station for assault, obstructing illegal vending and the pool table sticks were exhibited. - 8. As a result of the beating by the applicants and his cohorts, I sustained injuries on my head and shoulders and I was examined by the medical practitioner who classified the nature of my injuries as "harm". - 9. The 1st Applicant is a suspect in an ongoing case of inciting, obstructing arrest/assault/vending, and is currently released from police custody on police bond while the 2nd Respondent and other suspects were on 6th September 2022 charged with obstructing KCCA Law Enforcement Officials and Police Officers on duty and pleaded guilty before the trial Magistrate at City Hall Court. - 10. I have not violated any constitutional rights of the Applicants as they were lawfully arrested and detained at police for criminal activity on 5th September 2022, charged on 6th September 2022 for obstructing KCCA Law Enforcement Officials and Police Officers on duty by fighting them and hindering them from performing their lawful duties which offense they

pleaded guilty to and were convicted and sentenced by the trial Magistrate at City Hall Court.

11. I did not torture the Applicants as alleged by beating with sticks and metallic wires but they sustained those injuries by fighting law enforcement officers and thereby knowingly and voluntarily assuming repercussions including injuries sustained and I with other enforcement agencies were acting in self defence.

In rejoinder the Applicants reiterated their averments in support of the application.

# **Legal Representation.**

Mr. Kamya France Shelbie and Mr. Sebutta Hamza represented the Applicant while Mr. Kwikiriza Benson and Ms. Denise Louise Babirye represented the Respondents.

Both counsel agreed to file written submissions whose details are on record.

Counsel for the applicant in his written submissions raised two issues for court's determination to wit;

- *1. Whether the Applicants' right to freedom from torture, cruel, inhuman and degrading treatment were violated by the Respondents?* - *2. What remedies are available to the parties?*

# **Submissions by counsel for the Applicants.**

## **Issue No. 1**

# *Whether the Applicants' right to freedom from torture, cruel, inhuman and degrading treatment were violated by the Respondents?*

Counsel submitted that Article 20(2) of the constitution commends all persons and authorities to respect and protect and promote fundamental human rights and freedom and article 24 and 44(a) provides that no person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment.

Counsel referred to the case of **Attorney General Versus Salvatori Abuki and another SCCA No. 1 of 1998 where** the supreme court fortified article 24 of the constitution and held that;

*"......... it seems clear that the words emphasized have to be read disjunctively, thus read, the article seeks to protect the citizen from several different conditions;*

- *i) Torture* - *ii) cruel punishment* - *iii) inhuman treatment* - *iv) degrading treatment and* - *v) degrading punishment*

Counsel submitted that the 1 st applicant was beaten by the Respondents agents and he sustained injuries, the 2nd Applicant came to plead with the agents of the 1st Respondents who were severally beating him but his plea fell on a deaf ear and instead the Respondents agents turned against him and started beating him up as well. That the Applicants were humiliated before their families and the community yet they are not vendors.

Counsel submitted that the 1st Respondent is a statutory body established under KCCA Act 2010 as amended and according to section 5(2) of the KCCA Act, it is vicariously liable for the acts of its errant Law Enforcement Officers.

Counsel referred to the case of **Rights Trumpet and 2 others Vs AIGP Asan Kasingye and 5 others and Mucunguzi Abel and 9 others Vs Attorney General, consolidated Misc. Cause No. 17 and 13 of 2017** where court held that the Attorney General is responsible for the actions of police officers.

Counsel submitted that in the instant case the Law Enforcement Officers are agents of the 1st Respondent and this makes the 1st Respondent vicariously liable.

# **Issue No. 2**

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

Counsel submitted that Article 50 of the constitution empowers a person whose rights have been violated to seek redress in court. Article 126(2) (c) of the constitution empowers court to grant adequate compensation to victims of human rights violations. Counsel also referred to section 3 of the Human Rights Enforcement Act and prayed that given the wanton and arbitrary human rights violations suffered by the Applicants, court be pleased to adequately compensate them. Counsel suggested general damages of 800,000,000/= and punitive/exemplary damages of 200,000,000/=. ## **Submissions by counsel for the Respondents.**

Counsel for the Respondents in their written submissions raised 3 preliminary points of law to wit;-

- *a) The application is an abuse of court process as it arises from illegalities and criminality committed by the Applicants.* - *b) The application is incompetent and improperly before this court as there is no direct violation of a fundamental human right.* - *c) The 2nd Respondent has immunity from prosecution as an officer of the 1st Respondent.*

I have very carefully looked at the preliminary objections raised by counsel for the Respondents, it is my considered view that these POs will be resolved in issues No.1

## **Issue No. 1**

# *Whether the Applicants' right to freedom from torture, cruel, inhuman and degrading treatment were violated by the Respondents?*

Counsel for the Respondents submitted thatsection 2 (1) of the Prevention of Torture Act 2012 defines torture as; -

*" any act or omission by which severe pain or suffering whether physical or mental is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity for such purpose as obtaining information or a confession from the person or any other person; punishing that person for an act he or she planning to commit; or intimidating or coercing the person or any other person to do or to refrain from doing any act".*

Counsel also referred Section 2(4) of the above mentioned law which dictates that the definition of torture set out in subsection (1) does not include pain or suffering arising from inherent or incidental to a lawful sanction.

Counsel submitted that in the instant case On 5th August 2022 at around 19:30hrs, the 2nd Respondent commanded a motorized patrol of the 1st Respondent's enforcement team together with UPDF soldiers and police officers aimed at ensuring trade order by removing vendors from the streets at Kisaasi Kawempe Division. During the enforcement exercise, a person was found vending chicken and chips on the street at Ndundu. As the 2nd Respondent executed an arrest of the vendor, a group of about 15 men, led by the 1st Applicant attacked him and beat him with pool table sticks on the head and shoulders and obstructed the arrest of the said vendors.

Counsel submitted that the applicants allege torture by use of metallic rod, wires and sticks but have not adduced evidence of the same. In fact the alleged injuries sustained by the 1st Applicant to his jaws, teeth and eyes cannot be attributed to metallic roads, wires and sticks but is evidence of brawl and no sufficient medical evidence was adduced to prove the same.

Counsel submitted that the applicants have not detailed in particular or identified who occasioned the alleged injuries to his jaws, teeth and eyes to the required standard in law. Was it the 2nd Respondent, 1st Respondent law enforcement officers or police or the army who were part of the exercise. The 2nd Respondent stated that he was rescued by police and the army yet police and army are not agents of the 1st Respondent for matters of vicarious liability to arise.

Counsel referred to the case of **Gideon Olowo Vs Kampala Capital City Authority & Attorney General CS No. 288 of 2018** where court held that;

*" the police was called in under section 4 (1) of the police Act which mandates the police to ensure that there is public safety and order in the country. The 1st defendant (KCCA) cannot therefore be vicariously liable for actions carried out by the police under its legal obligations. The 1st defendant would have been held accountable if the injury caused to the plaintiff had come from one of its officers which is not the scenario in this case."*

Counsel submitted that the 1st Respondent's officers were not armed and do not move with metallic rods, wires and sticks. It is the violent crowd commanded by the 1 st Applicant that was armed with stones and pool table cue sticks among others and since the applicants have not established who among the Law Enforcement Officers, the police or army in particular occasioned the harm, they have not made a case against the Respondents.

Counsel submitted that he who seeks equity must come with clean hands. The 2nd Respondent was beaten by the Applicants and he reported a case of assault against them. The 2nd applicant pleaded guilty to the charge and he was accordingly sentenced. The 1st applicant was granted bond by police and instead has brought this case as an afterthought to frustrate the pending criminal charges against him.

Counsel concluded that the injuries occasioned to the 1st applicant were as a result of a scuffle not torture as no serious physical injuries have been proven by the

applicant. To the contrary the 1st applicant incited the mob, violently attacked the 2nd Respondent and the other officers and committed the offence of obstruction and resisted lawful arrest. The above realm of pain or suffering incidental to a lawful sanction as provided under section 2(4) of the Prevention and Prohibition of Torture Act, 2012 as reasonable force was used to arrest the 1st applicant who had committed the offence of obstruction of arrest.

#### **Analysis of court.**

**Issue No. 1**

*Whether the Applicants' right to freedom from torture, cruel, inhuman and degrading treatment were violated by the Respondents?*

Article 44(a) of The Constitution of the Republic of Uganda provides that;

*"Notwithstanding anything in this constitution, there shall be no derogation from enjoyment the following rights and freedoms-*

*(a)Freedom from torture and cruel, inhuman or degrading treatment or punishment."*

Section 2 of the Prevention and Prohibition of Torture Act, 2012 defines

torture to mean; -

*"any act or omission, by which severe pain or suffering whether physical*

*or mental, is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity for such purposes as;*

*i) obtaining information or a confession from the person or any other person;*

*ii) punishing that person for an act he or she or any other person has committed,*

*or is suspected of having committed or of planning to commit; or*

*iii) Intimidating or coercing the person or any other person to do, or to refrain*

#### *from doing, any act".*

*In the case of Ireland vs United Kingdom ECHR Application No.5310/71, court explained the distinction between Torture and inhuman or degrading treatment lies in the difference in the intensity of suffering inflicted. In deciding whether certain treatment amounts to torture, the court takes into account factors of each individual case, such as the duration of treatment, its physical and mental effects, and age, sex, health, and vulnerability of the victim.*

In the instant case, it is not in dispute from both parties that there was a scuffle during the arrest of vendors. Equally, it is evident that the 1st Applicant was arrested during the scuffle, taken to police where he was released on police bond which shows that there are pending criminal charges against him evidenced by the police bond attached to his affidavit in support of his application.

Further, it is not in doubt that the 2nd applicant was also arrested during the operation of arresting vendors, taken to police where he was charged and later produced in court where he pleaded guilty and he was convicted and sentenced.

The above analysis is further corroborated by the evidence of the 2nd Respondent who stated in his affidavit in reply that while he was effecting an arrest of a street vonder at Ndundu Kisaasi, the 1st applicant together with a group of other 15 men attacked him. Beat him up and obstructed an arrest.

The UPDF Officers and Police came to his rescue and arrested the mob. That they were taken to Kira Road police station and charged with assault and obstructing a lawful arrest. They were taken to city hall court the following day where they pleaded guilty before the trial Magistrate.

This evidence is corroborated with that of the 2nd Applicant in his affidavit in support of the application when he stated that they were arrested, charged with obstructing an arrest and pleaded guilty whereby he was sentenced to a fine of 200,000/=.

The applicants did not adduce any evidence or proof that the injuries they sustained were inflicted by the agents of the 1st Respondent.

It is the uncontroverted evidence of the 2nd Respondent in paragraph 8 that he was rescued from the angry mob by UPDF and Police Officers who witnessed the incident and arrested the applicants for obstruction of lawful arrest and assault of the 2 nd Respondent.

The UPDF and Police officers are not agents of KCCA and cannot be held liable for their actions.

*Black's Law Dictionary, 9th Edition,* at page 998, defines vicarious liability as;-

*"the liability that a supervisory party, such as an employer bears for the actionable conduct of a subordinate or associate, such as an employee, based on the relationship between the two parties".*

Therefore, for a party to be vicariously liable for the acts of another, there should exist a relationship between the party and the person who did the negligent act, and the act ought to have been done in the course of the employment, and not when the person who did it was acting on a frolic of his own.

In the case of *Paul Byekwaso vs. Attorney General, Civil Appeal No. 10 of 2002,* court held that a master is liable for tortuous acts committed by his/her servant in the course of the servant's employment.

In **Joseph Mukasa Balikudembe –v- Centenary Rural Development Bank Ltd & Attorney General HCCS No. 278 of 2014**, court noted that; "*police does not take directives from the complainants and once they have taken over the complaint they become wholly responsible for their actions.'*

Similarly, in this instant case, once the 2nd Respondent called in the Police, it became entirely responsible for its actions at the scene while executing its legal mandate of calming down and stopping the mob to ensure that there is public safety and order.

I have considered all the evidence before court and find that the applicants did not lead sufficient evidence to prove that their constitutional rights were violated by the Respondents on a balance of probabilities hence issue No. 1 is in resolved in the negative.

#### **Issue two**

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

Since the Applicants failed to prove their case against the Respondents, they are not entitled to the remedies sought.

## **Conclusion.**

In the final result, this application fails with the following orders; -

- 1. The application is hereby dismissed. - 2. Given the nature and circumstances of this case, I make no orders as to costs.

Dated, signed, sealed and delivered by email this **27th** day of **October 2023**.

Emmanuel Baguma

Judge.