Ssemwezi v Kyankwanzi District Local Government & Another (Miscellaneous Cause 2 of 2024) [2024] UGHC 1194 (16 December 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

#### MISCELLANEOUS CAUSE NO. 0002 OF 2024

SSEMWEZI ROBERT :::::::::::::::::::::::::::::::::::: ::::::::::::::::::::::::::::::::::::::

## **VERSUS**

# 1. KYANKWANZI DISTRICT LOCAL GOVERNMENT }:::::::::::::::::::::::::::::::::::: 2. ATTORNEY GENERAL

# BEFORE: HON. MR. JUSTICE KAREMANI JAMSON. K **RULING**

### **Introduction**

This application is brought by Notice of Motion under Article 42 of the Constitution of Uganda, Sections 37, 40 and 43 of Judicature Act CAP 6 as amended by Rules 6, 7 and 8 of Judicature (Judicial Review) Rules 2009, Section 98 of the Civil Procedure Act and Order 52 Rule 1 of Civil Procedure Rules and all enabling laws for orders that;

- a) An order of certiorari issues to set aside the decision of the respondents terminating the applicant's employment dated $17/09/2024$ and $30/08/2024$ respectively. - b) An order of mandamus directing the respondents to reinstate the applicants on Kyankwanzi District Local Government pay roll as a nursing officer. - c) An order pf declaration that the applicant is an employee of the 1<sup>st</sup> respondent. - d) An order against the respondent in favour of the applicant directing that applicant be paid his salary entitlements/arrears from My 2016 up to date amounting tosha.162.480.000 $=$ - e) An order that the applicant be paid damages of shs.100.000.000= and exemplary damages of shs.200.000.000= for the loss /injury occasioned by the respondent's decision to dismiss him from employment. - f) Costs of the application be provided for.

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#### Grounds

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The grounds of this application are in the Notice of Motion and affidavit in support sworn by the applicant but briefly they are that;

- 1. The applicant's failure to attend duty was due to good cause due to sickness. - 2. The applicant was dismissed as an employee of the 1<sup>st</sup> respondent without being accorded a fair hearing. - 3. The applicant duly notified the 1<sup>st</sup> respondent in writing of his sickness supported by medical reports. - 4. The respondent acted outside the law in reaching their decisions

The respondents filed an affidavit in reply and opposed the application on the basis that

- 1. The application is incompetent, incurably defective, barred in law and an abuse of court process. - 2. That the instant application is not amenable for judicial review as the applicant's $\frac{1}{2}$ claim is labor dispute under the jurisdiction of the Labour Officer/Industrial court. - 3. That the applicant absconded from duty and was duly declared to have done so after a fair and transparent process. - 4. That the applicant was appointed into service on $8<sup>th</sup>$ January 2013a and posted to Kokonda Health Centre III. - 5. That the applicant's performance starred to deteriorate due to irregular attendance to duty. - 6. That he was warned of absence without permission. - 7. That the applicant absconded from duty and was declared so after a fair and transparent hearing. - 8. That the District Chief Administrative Officer made a submission to the District Service Commission about the applicants abscondment from duty. - 9. That the applicant was invited to attend the meeting for the hearing of his disciplinary case. - 10. That the District Service Commission resolved that the applicant be dismissed from service due to abscondment from duty.

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11. That the applicant being aggrieved with the decision of the District Service Commission appealed to the Public Service Commission which appeal failed.

#### The issues for this court to determine are:

- 1. Whether the application raises grounds for judicial review - 2. Whether the applicant is entitled to the remedies sought.

#### Representation

The applicant was represented by Mr. Kamya Ibrahim Senyonyi of $M/S$ Manzi Mutamba Advocates & Solicitors while Allan Mukama of M/S Attorney General Chambers represented the respondents.

## Whether the application raises grounds for judicial review

Both counsel made written submissions which I have carefully looked at and studied before arriving at this decision.

The principles governing Judicial review are well settled. Judicial Review is not concerned with the decision made but rather the decision making process. Judicial Review is concerned with the courts supervisory jurisdiction to check and control the exercise of power by those in public offices or persons/bodies exercising quasi-judicial functions by the granting of prerogative orders as the case may be. It is pertinent to note that the orders sought under judicial review do not determine private rights between individuals.

Judicial review is meant to ensure that individuals are given fair treatment by public authorities in the process of exercising their mandate against them.

In an application for judicial review a court is tasked with the duty of establishing whether the authority in issue arrived at a decision after going through a process that was not illegal, irrational or unlawful.

It is my considered position that from the annexures to the affidavit of the respondents in reply to the application in this matter, the applicant was accorded fair hearing before the decision to dismiss him was arrived at.

The applicant even exercised a right of appeal against the same decision to the Public Service Commission before he lost the appeal and the filing of this application. The applicant may not have been satisfied with the decisions of the District and Public Service Commissions. These decisions could not be challenged by way of judicial review. The applicant having been afforded an opportunity to be heard he was given due process. The same decisions could only be substantively challenged through a substantive suit if he was aggrieved with the decisions made.

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It is my considered view that judicial review ought to be the first line of remedy rather than being resorted to after the other remedies have failed as it was in this case.

I do find that this is not one those matters where the judicial review is remedy to be undertaken.

**Whether the applicant is entitled to remedies sought.**

The applicant has failed to show court that the respondents acted unfairly, illegally, irrationally or unlawfully when they subjected him to disciplinary proceedings in which he participated before the decision to dismiss him was made.

It is my finding that this application lacks merit and is dismissed with costs in favor of respondents.

I so order.

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Main

KAREMANI. JAMSON. K **TUDGE** 16.12.2024

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