Omari v Kampala City Council Authority (KCCA) and 3 Others (Miscellaneous Application 30 of 2023) [2024] UGHCCD 156 (11 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL DIVISION MISC. APPLICATION NO. 30 OF 2023 (ARISING OUT OF MISC. CAUSE NO. 374 OF 2019)**

**YASIN OMARI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

- **1. KAMPALA CAPITAL CITY AUTHORITY (KCCA)** - **2. ASIA NABISERE KINAABI [PARISH DEVELOPMENT MODEL FOCAL PERSON]** - **3. KAMOGA RUBEN [HEAD GOVERNMENT UNIT]** - **4. JANET LUZINDA [TOWN CLERK MAKINDYE] :::::::::: RESPONDENTS**

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

#### **RULING**

#### **BACKGROUND**

The applicant brought this suit by Notice of Motion under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Order 52, Rules 1, 2 and 3 of the Civil Procedure Rules, seeking for orders that;

- a) A declaration that the respondents' action of excluding Muyenga Parish, Namongo Parish and Bukasa Parish situated in the Makindye Division of Kampala district from the Parish Model Development programs are directly and indirectly in contempt of orders in High Court Miscellaneous Cause No. 374 of 2019; Yasin Omari versus Electoral Commission & 2 Ors. - b) An order compelling the respondents to include the three parishes to wit; Muyenga parish, Namongo parish and Bukasa parish in the PDM program for Kampala till its completion and/ or transfer of the monies allocated to the said parishes that is Ugx. 100,000,000 per parish per year.

- c) An order that the applicant be compensated by way of general and punitive damages in the amount of Ugx. 1,500,000,000/= (Uganda Shillings One Billion Hundred Thousand only) by the respondents. - d) An order that the respondents do pay a fine in court. - e) The 2nd, 3rd and 4th respondents be punished by detention in civil prison for the repetitively disobeying court orders. - f) Costs of this application be provided for by the respondents.

The grounds supporting this application are contained in the affidavit of Yasin Omari; the applicant herein attached to the application which briefly states that;

- a) That the High Court Civil Division in Miscellaneous Cause No. 374 of 2019 issued an order on the 13th March 2020 demarcating Bukasa ward into three administrative units/ parishes namely; Muyenga parish, Namongo parish and Bukasa parish. - b) On the 30th June, 2020, the Attorney General, in a letter to the then minister of Kampala Capital City Authority advised that the order be complied with and also attached the same. - c) On the 27th October, 2020, the Executive Director of the 1st respondent (KCCA) in a letter to the then town clerk of Makindye advising that the order of court demarcating the said three parishes be implemented immediately. - d) The said order/ judgement was never appealed against at all and the respondents were notified of the same. - e) The respondent in contempt of the said orders chose to ignore, disobey and acted contrary to them by excluding the three parishes from the parish development model program that they are yet to recognize them.

f) It is in the interest of justice that this Honourable court be pleased to grant the orders as prayed for.

The respondents filed an affidavit in reply deponed by Ritah Mutuwa opposing this application wherein it was indicated that the application is misconceived, bad and barred in law for it being wrongly instituted against the respondents who were not parties to Misc. Cause No. 374 of 2019 and the orders therein were not directed to them. It was also indicated that the 2nd, 3rd and 4th respondents are protected by law against suits arising from acts done in their official capacity.

The respondents further stated that the applicant's action vide Misc. Cause No. 347 of 2019 was against the Electoral Commission, Attorney General and Hon. Minister Betty Kamya, seeking among others, an order of mandamus to compel the Attorney General and the minister to demarcate Bukasa ward into three wards/ administrative units namely Muyenga ward, Namongo ward and Bukasa ward. The court delivered ruling granting an order of mandamus compelling the 3rd Respondent therein to consider the applicant's petition for creation of the said administrative units.

The respondents contend that they were not party to Misc. Cause No. 347 of 2019 and neither do they act for or on behalf of the Attorney General, Hon. Minister Betty Kamya or the office of the Minister of Kampala Capital City and Metropolitan Affairs. The respondents further contended that it is the Minister of Kampala Capital City and Metropolitan Affairs who has the mandate under the law to create ward urban councils and alter the boundaries of the same.

The respondents further submitted that the parish development model is a government program under the Ministry of Local Government and any allocations to ward/ administrative units are the responsibility of the said Ministry. The respondents deponed that they have not acted in contempt of the court orders issued in Miscellaneous Cause No. 347 of 2019 and that the orders therein were not directed to them nor do they have the mandate to implement such orders.

The applicant was represented by *Mr. Mujuzi Najib* whereas the respondents were represented by *Mr. Kwikiriza Benson*.

The following issues were proposed for determination by this court.

- *1. Whether the 2nd, 3rd and 4th respondents have immunity from prosecution as officers of the 1st respondent.* - *2. Whether the Respondents are in contempt of any court orders in Miscellaneous Cause No. 374 of 2019; Omari Yasin vs Electoral Commission and 2 Ors.* - *3. What remedies are available to the parties?*

The parties were ordered to file written submissions which all the parties complied with. This court relied on the pleadings, evidence and submissions made by the parties to determine the issues raised accordingly.

## **Determination**

## **Whether the 2nd, 3rd and 4th respondents have immunity from prosecution as officers of the 1st respondent.**

Counsel for the respondents submitted that immunity from prosecution is any exemption from a duty, liability or service of process especially such exemption granted to a public official as per the *Black's Law Dictionary, 8th Edn 2004*. He further relied on section 81 of the Kampala Capital City Authority Act, 2010 as amended which protects any member of staff or other person in the service of the Kampala Capital City Authority from liability to any civil action, claim or demand for any act, matter or thing done or omitted to be done in good faith in execution of a duty or under the direction of the authority.

Counsel further relied on the case of *Blue Line Enterprises Limited vs East African Development Bank Civil Appeal No. 110 of 2009* where the Tanzania Court of Appeal noted that the rationale for such immunity is based on the principle of functionality and achieving objectives of the organisation. He submitted that it is not in dispute that the 2nd, 3rd and 4th respondents are officers of the 1st respondent performing their duties in line with the directions of the authority. The 2nd, 3rd and 4 th respondents' actions for implementing the PDM program and demarcation of the said parishes are an ongoing process. It is submitted that the applicant has not demonstrated bad faith in the execution of duties by the 2nd, 3rd and 4th respondents.

Counsel therefore submitted that the 2nd, 3rd and 4th respondents being officers of the 1st respondent have immunity from prosecution while performing their duties under the direction of the 1st respondent and thus the suit is incompetent against them.

## **Analysis.**

The question before the court is whether the 2nd, 3rd and 4th defendants enjoy immunity from legal process. The 2nd, 3rd and 4th defendants rely on the section 81 of the Kampala Capital City Act to plead their immunity from judicial process and the matter can be decided by interpreting the law.

The question of whether somebody enjoys immunity from legal process is a question of law. As I have noted above, the defendant relies on an Act of Parliament and a Statutory Instrument. In the premises I will go ahead to consider the submissions of counsel is whether the defendant enjoys immunity from legal process on the basis of the law.

The Black's Law Dictionary 9th Edition defines immunity as any exemption from a duty, liability or service of process especially such an exemption granted to a public official or governmental unit. Immunity is a defence to tort liability which is conferred upon an entire group or class of persons or entities under circumstances where considerations of public policy are thought to require special protection for the person, activity or entity in question at the expense of those injured by its tortious act.

The 2nd, 3rd and 4th respondents contend that they are immune to such legal proceedings by virtue of the law. Qualified immunity is a legal status wherein an individual or entity cannot be held liable for a violation of the law, in order to facilitate societal aims that outweigh the value of imposing liability in such cases. Such qualified immunity may be from criminal prosecution, or from civil liability (being subject of lawsuit), or both. It is a legal privilege attributed to certain

persons and recognized by under the law to enable them to exercise their functions free from outside constraints or pressures, including legal ones.

It is important to note that this immunity is never absolute and is generally restricted to acts committed in the exercise of official functions, during the time the person holds that official position for anything done in good faith.

The defendants rely on *section 81 of the Kampala Capital City Authority Act* which I shall restate hereunder.

*81. No act, matter or thing done or omitted to be done by—*

- *a) Any member of the Authority or division urban council or lower urban council;* - *b) Any member of staff or other person in the service of the Authority; or* - *c) Any person acting under the directions of the Authority, shall, if that act, matter or thing was done or omitted to be done in good faith in the execution of a duty or under the direction of the Authority or any appropriate authority under this Act, render that member or person personally liable to any civil action, claim or demand.*

From the evidence on court record, it is clear and undisputed that the 2nd, 3rd and 4 th respondents are officials of the 1st respondent and the acts complained about in the circumstances fall under the acts done in direction of the 1st respondent. Furthermore, the applicant has not adduced any evidence to impute bad faith by the 2nd, 3rd and 4th respondents during performance of their actions.

I therefore agree with counsel for the 2nd, 3rd and 4th respondents are protected from personal liability in the circumstances under section 81 of the Kampala Capital City Authority Act and as such, the orders of punishment by detention in civil prison cannot be sustained. This ground therefore succeeds.

> **Whether the Respondents are in contempt of any court orders in Miscellaneous Cause No. 374 of 2019; Omari Yasin vs Electoral Commission and 2 Ors.**

The applicant submitted that section 98 a (c) of the Civil Procedure Act is instructive in the circumstances. Counsel noted that contempt of an order is an abuse of court process and therefore this court has wide powers to deal with it as it deems fit. He relied on the case of *Yasin Omar vs KCCA & 2 Ors Misc. Applic. No. 832 of 2017* where court held that the primary purpose of contempt power is preserves the effectiveness and sustenance of the power of courts. The rule of law requires that orders of the court be respected and obeyed and that duty equally applies even where a party is dissatisfied with an order and has appealed against it.

Counsel also relied on section 33 of the Judicature Act which he stated empowers the high court to grant all such remedies that are necessary in determining all matters in court to grant all such remedies that are necessary in determining all matters in controversy between the parties finally and decisively. Counsel further relied on the *Halsbury's Law of England, 4th England pg. 284* which states that it is a civil contempt to refuse to do an act required by the judgement or order of the court within the time specified in that judgement or to disobey a judgement or order requiring a person to abstain from a specific act.

Counsel further relied on *Megha Industries (U) Ltd vs Conform Uganda Ltd Misc. No. 21 of 2014* where the elements a complainant must prove were stated to include the existence of a lawful order, the potential contemnor's knowledge of the order, the contemnor's ability to comply and failure to comply. It was submitted that the court lawfully issued the order under Misc. Cause No. 374 of 2019 and the same has not been vacated, declared null and void.

The applicant further submitted that the general rule is that a person who knows of an order cannot be allowed to disobey it. He relied on the case of *Hadkinson vs Hadkinson [1952] ALLER 567* where the court held that a party who knows of an order whether null or void, or regular or irregular cannot be permitted to disobey it. Counsel submitted that the import of this provision is that even if the party was not part of the case, so long as he or she is notified of the order, he or she must obey it and if he or she is aggrieved, then redress must be sought from court and not a unilateral decision to disobey it.

It was submitted that it is the evidence of the applicant that all the respondents were fully notified of the order and the order was appreciated given the respondents' conduct after learning of it

In respect of the potential contemnor's ability to comply and failure to comply, the applicant's counsel submitted that the respondents had the ability to comply with the court order but simply chose to disobey it without assigning any justification whatsoever or pleading disability or impossibility to obey the same as a result of any extraneous circumstances.

Counsel submitted that the respondents' defenses for failure to comply with the order since the PDM program in Kampala falls under the ambit of KCCA and not the Ministry of Local Government as alleged are not acceptable. The plaintiff therefore submitted that the respondents fully had the capacity to comply since the inclusion of the three parishes was squarely within their mandate. Counsel further submitted that the fact that they were not directed to them doesn't give them a ticket to disobey it as long as they were notified of it; which is not denied.

The applicant therefore submitted that noncompliance was not for any other reason but sheer contempt for this court and orders issued therein and as such, the same must not go unpunished.

Counsel for the respondents defined contempt of court according to the *Black's Law Dictionary, 8th Edn* as the conduct that defiles the authority or dignity of a court or legislature. That it means the failure to obey a court order that was issued for another party's benefit. He relied on the case of Hon. Sitenda Sebalu vs The Secretary General, East African Community Ref. No. 2012 where the court noted that to prove contempt, the complainant must prove four elements to wit; existence of a lawful order, potential contemnor's knowledge of the order, ability to comply and failure to comply with the order.

Counsel further relied on the case of *Prof. Fredrick Ssempebwa & Ors vs A. G Civil Application No. 5 of 2019* where the Supreme Court held that once the applicant has proved the order, service and non-compliance, the respondent bears an evidential burden in relation to willfulness and mala fides. Counsel submitted that the respondents do not dispute the existence of a lawful order or knowledge of the same but contest that their alleged actions of noncompliance with the court order in Misc. Cause No. 373 of 2019; Yasin Omari vs Electoral Commission & 2 Ors are willful or malafide.

Counsel submitted that the ruling and orders therein were directed to the Minister of Kampala Capital City and Metropolitan Affairs whose office is under the office of the President making it a separate body from the 1strespondent. It is the minister who has the mandate under the law to create urban councils and alter the boundaries of the same under section 4 (3) of the Kampala Capital City Act. It was therefore submitted that the present application for contempt is against a wrong party and the orders were not within the respondents' ability to comply.

Counsel further submitted that the application is outside the ambit of the original orders to consider the applicant's petition for creation of the said administrative units and now traverses implementation of the parish development model program. On this, counsel relied on *Nakabuye vs URA High Court Misc. Cause No. 372 of 2019* where this court held that excessive interference by the judiciary in the functions of the executive is not proper. The machinery of government would not work if it were not allowed some free play in its joints.

Counsel further submitted that the 1st respondent's Executive Director advised that the order of court on demarcation of parishes is implemented and directed for a stakeholder harmonization meeting on the disputed parishes chaired by the 3rd respondent to ensure the smooth operation of the program and this was done. This was affirmed by the applicant in his affidavit under para. 4 and Annexture C and thereby proof that the respondent's bonafide actions in implementing the orders of court.

Counsel further submitted that the respondents faced an implementation/ operational challenge given that the list of gazetted parishes in Kampala provided by the ministry of Local Government under the PDM program did not demarcate the said administrative wards of Muyenga Bukasa and Namongo as ordered by court. He further noted that the PDM program and allocations to wards/ administrative units being the responsibility of the Ministry of Local Government; the respondents sought guidance on the implementation of the same which is yet to be received. The respondents submitted that they, thus, cannot be faulted for consulting with the appropriated government entity on administrative matters relating to the implementation of the PDM program. This cannot tantamount to contempt of court.

Counsel therefore submitted that all the essential ingredients necessary to prove contempt of court have not been sufficiently proved by the applicant and prayed that court finds in its favour as to no contempt of court orders in Miscellaneous Cause No. 374 of 2019.

## *Analysis*

It is contempt of court to do an act required by a judgment or order of court within the time specified therein or disobey any orders of court. The dignity and honour of the court cannot be maintained if its orders are treated disdainfully and scornfully without due respect. The right and power of court to punish or pronounce a sanction on whoever disobeys its order is inherent and legitimate right of every court

The main gist of the arguments of both counsel revolved around the question of contempt of court. The Applicant complains that the Respondents committed contempt of Court against this court's orders in Miscellaneous Cause No. 374 of 2019; Omari Yasin vs Electoral Commission and 2 Ors.

Counsel have rightly submitted on several authorities on contempt of court which has been defined by the *Black's Law Dictionary* as a disregard of or disobedience to, the rules or orders of a legislative or Judicial body, or an interruption of its

proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair respect due to such a body.

Contempt of court has also been well described in the case of *Megha Industries Ltd vs Conform Uganda Ltd HCMC No.21 of 2014* where the Court held that contempt of court exists where there is a lawful court order and the potential contemnor must have been aware of the court order and failed to comply with the order. It was further elaborated in the case of *Hon. Sitenda Sebalu Vs Secretary General of the East African Community Ref. No. 8 of 2012* that the conditions which must be proved by the applicant in contempt of court are that;

- a) Existence of a lawful order. - b) The potential contemnor's knowledge of the order. - c) The potential contemnor's ability to comply. - d) The potential contemnor's failure to comply with/ disobedience of the order.

One of the key requirements in proceedings for contempt of court is notice of the existence of a clear and unambiguous court order. The law is that no order requiring a person to do or abstain from doing any act may be enforced by contempt unless a copy of the order has been served personally on him or her (see *Hon. Sitenda Sebalu v. Secretary General of the East African Community Ref No. 8 of 2012 (EACJ) and Stanbic Bank (U) Ltd and another v. Commissioner General Uganda Revenue Authority H. C. Misc. Application No. 42of 2010*).

It is also a fundamental requirement to all proceedings for contempt of court that there was a clear and unambiguous court order. The order must state clearly and unequivocally what should and should not be done.

In the instant case, this court in the Misc. Cause No. 374 of 2019 issued an order of mandamus compelling the 2nd and 3rd respondent; the Attorney General and Hon. Betty Kamya Turomwe to demarcate Bukasa ward into three wards/ administrative units namely; Muyenga ward, Namongo ward and Bukasa ward. It is the applicant's contention that the respondents herein are in contempt of this order.

The respondents do not dispute notice of the said order, but however dispute being in contempt with it as they were never parties to the application and neither do they have the mandate under the law to comply with the order. As already stated, it is fundamental that the court order was clear and unambiguous in all proceedings for contempt of court proceedings. A look at the order made in Misc. Cause No. 374 of 2019 clearly directs that 2nd and 3rd respondents therein to demarcate Bukasa ward into three administrative wards.

A further look at the ruling of this court in Misc. Cause No. 374 of 2019 indicates that the Minister for Kampala and Metropolitan Affairs has the powers to create ward, village urban councils and alter their boundaries in consultation with the Authority in accordance with section 4 (4) of the Kampala City Authority Act.

The applicant under paragraph 7 of his affidavit deponed that the Minister of Kampala and Metropolitan Affairs exercised her mandate under KCCA Act and as per her letter dated 9th September, 2020. He also deponed that the implementation of the court order was done by the Minister of Kampala and Metropolitan Affairs and the newly created parish of Namongo and Muyenga got deployment of ward administrators as per the letter dated 18th January, 2022 to the Chairperson LCII Bukasa ward, Makindye division.

It is therefore clear from this that the respondents in Misc. Cause No. 374 of 2019 in consultation with the 1st respondent herein complied with the court order that led to the creation of Namongo and Bukasa wards as directed by the court order.

Having applied the conditions to satisfy a finding of contempt of a court order as discussed in the case of *Hon. Sitenda Sebalu (supra)* in the circumstances of this case, I cannot find that the respondents herein are in contempt of the orders made by this court in Misc. Cause No. 374 of 2019; Omari Yasin vs Electoral Commission and 2 Ors. The power to punish for contempt should be sparingly used. There must be restraint in its exercise more so as it is entirely at the discretion of the court how to punish for contempt.

From the above discussion, I concur with counsel for the 1st respondent that the orders sought under this application fall outside the ambit of the original orders in Misc. Cause No. 374 of 2019 for the court to consider the applicant's petition for creation of the said administrative units. This application traverses implementation of the parish development model program which was never an issue for determination in Misc. Cause No. 374 of 2019 under which the applicant seeks remedies for contempt of court.

Secondly, list of gazette parishes in Kampala was provided by the Ministry of Local Government under the Parish Development Model did not demarcate the said administrative wards of Muyenga, Bukasa and Namongo as ordered by court. The PDM activities are implemented in the said areas based on the list of gazette parishes in Kampala provided Ministry of Local Government, as the lead government Ministry responsible for coordination of implementation of PDM at the National Level.

The 2nd, 3rd, and 4th respondents are not responsible for creating the administrative Units and their duty was only to release funds to approved parishes by the Ministry of Local Government. There was nothing contemptuous in their actions in execution of their duties in implementing the Parish Development Model programme.

This issue is therefore answered in the negative.

The applicant has not made out a case for contempt to warrant this court's orders on the reliefs sought in the application.

As such, this application is dismissed with no order as to costs.

I so order.

*SSEKAANA MUSA JUDGE 11th October 2024*