MUNYAMPUNDU ET.AL V. KIGALI CITY

# MUNYAMPUNDU ET.AL V. KIGALI CITY

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-03-18 - Case/document no.: RADA 0011/13/CS - Collection: Supreme Court

## Text

## Page 1

MUNYAMPUNDU ET.AL V. KIGALI CITY [Rwanda SUPREME COURT – RADA 0011/13/CS (Mukanyundo, P.J., Rugabirwa and Ngagi, J.) March 18, 2016] Administrative procedure – Administrative decision – The transfer of the obligations of the administrative organ at the other organ – Administrative appeal – the organ which is lodged for an administrative appeal while it was filed for – In case the transfer of the obligations of the administrative organ at the other organ, it become the reason which leads the organ maker of the decision that are requested for being abrogated on when those obligations were still in its attribution it is not the one to be filed for or applied for informal appeal, rather the organ in which those obligation were transferred in should be applied for informal appeal and be filed for because it is the responsible for the decision made by former organ – The administrative appeal should not be given the merit when it was lodged before an incompetent administrator at the time of lodging it – Law No 08/2006 of 24/02/2006 determining the organization and functioning of the district, promoting land use, organizing and allotting plots in the District, article 67(17) – Law No 18/2004 of 20/06/2004 relating to the civil, commercial, labour and procedure, article 339 Contracts or obligations law – Damages – The fact that it was ruled that the appeal has no merit, it implies that the appellants should not be awarded the damages especially the respondent did not commit any fault so that it can be the grounds for liability – Decree law 30/07/1888 relating to Contracts or obligations, article 258. Facts: After Kigali city allotted to Kalisa the plot No 1068 locates at Kacyiru Sector, Gasabo district which belonged to Gatarayiha and gave it to their children, those children who are Munyampundu, Muhizi, Mukarwego and Sebahire applied the administrative appeal to Kigali city requesting for respecting what are provided by the law of expropriation especially on what regards the awarding the appropriate damages. Munyampundu and his mates did not be replied for their informal appeal, they sued against the administration of Kigali City with High Court requesting for annulment of the decision which take away that plot, then that court held that their claim is inadmissible because the filed for the wrong person since they should been filed for Gasabo district, due to the time of allotting the pot the issues of plots were in the hand of Kigali city, but during the hearing of the judgment what are concerning with the land use and allotting the plot are in the attribution of the district. Munyampundu and his mates appealed with Supreme Court state that the High Court based law which is inconsistent with that of admitting the claim and the fact that the obligation of allotting the plots falls into the jurisdiction of the district, it does not means that the district must be liable for the abrogation of decision of Kigali city because it did not make that decision, and also they request the various damages. Held: 1. The fact that the obligations of allotting the plots were no longer under the attribution of Kigali City but they were in the attribution of the districts in their territory, it is reason why Kigali City does not file a claim against it in the judgement of allotting the plots which was made when those obligations fallen into the attribution of it, rather it should be filed for the district

## Page 2

because it is the one which has the obligations to be responsible for all issues relate to the allotter of the plots which are in its territory, including what were not resolved by Kigali city. 2. The administrative appeal should not be given the merit when it was lodged before an incompetent administrator at the time of lodging it 3. When it is obvious that the respondent did not commit a fault the damages should not be awarded in judgment. Appeal has no merit. The court fees are equal to the expenses of the judgment. Statutes and statutory instruments referred to: Law No 08/2006 of 24/02/2006 determining the organization and functioning of the district, promoting land use, organizing and allotting plots in the District, article 67(17). Law No 18/2004 of 20/06/2004 relating to the civil, commercial, labour and procedure, article 339. Decree law 30/07/1888 relating to Contracts or obligations, article 258. No cases referred to. Judgment I. BRIEF BACKGROUND OF THE CASE [1] Munyampundu Alphonse, Muhizi André, Mukarwego Emerthe and Sebahire François state that their father Gatarayiha Frédéric forsaken to them the plot No 1068 located at Kacyiru sector, Gasabo district, then after they heard that the city of Kigali gave it completely to Kalisa Evariste. On 14 August 2009, they wrote for the Mayor of Kigali city the letter for administrative appeal requesting to comply what are provided for by the law that are concerning with expropriation, especially that concerns with awarding the appropriate the damages. [2] On 14 January 2010, Munyampundu Alphonse, Muhizi André, Mukarwego Emerthe and Sebahire François submitted to the High Court the claim for requesting the termination of the decision which takes away that plot. That court rendered the judgment No RAD 0008/10/HC/KIG on 11 December 2012, and held the inadmissibility of their claim. [3] In deciding, the High Court found that the decision which gives Kalisa Evariste the plot No 1068 was made by the mayor of Kigali city on 07 March 2001, the plaintiffs lodged an administrative appeal to that Mayor on 14 August 2009 in requesting to nullify that decision, and then after that Court ruled that the fact that at the time of giving that plot the issue of plots fall into the jurisdiction of Kigali city, but now ( means the time of filling a claim), what regarding with land use and giving the plot are in duties of a district, it implies that Munyampundu Alphonse, Muhizi André, Mukarwego Emerthe and Sebahire François sued the wrongly defendant because they should sue Gasabo district, thus it declaed that their claim should not be

## Page 3

admitted basing on article 67 (17) of law No 08/2006 of 24/02/2006 determining the organization and functioning of the district. [4] Munyampundu Alphonse, Muhizi André, Mukarwego Emerthe and Sebahire François appealed to the Supreme Court stating that the High Court based on the Law1does not have a relationship with the admissibility of a claim since the ground for not admitting the claim are provided for by article 2,77 and 142 of the Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and procedure, and the fact that the duties of giving the plots are in the hand of the district, it does not means that the annulment of the decision that was made by Kigali city, district must be responsible because it was not the one who took that decision, rather in order for determining who must be sued, it must be examined who made that decision which is the subject for being terminated as it is provided for by article 93(1) of the organic law No 51/2008 of 09/09/2008 determining the organization, functioning and jurisdiction of courts, the fact that the decision maker was the Mayor of Kigali city who was also applied for administrative appeal as it provided for by article 339 of the Law No 18/2004 of 20/06/2004 relating to the civil, commercial, labour and procedure, it means that they complied with the law. They requested the various damages as it is in their submission. [5] The hearing was conducted in public on 16/02/2016; the appellants are represented by Counsel Nkanika Alimasi, whereas Kigali City is represented by state attorney Kayiranga Rukumbi Bernard. II. ANALYSIS OF THE LEGAL ISSUE Determining whether the fact that the duties of giving the land fallen into the jurisdiction of Gasabo district, it can led Kigali city to not be sued in the judgment of giving the plot that was preformed while it was in its jurisdiction. Nkanika Alimasi, the Counsel for the appellants states that the High Court reject their claim on the basis of article 67 of Law No 08/2006 of 24/02/2006 determining the organization and functioning of the district, and they filed for annulment of the decision that has taken by the Kigali city which took away the plot, and it was removed, therefore that plot should be given back to the owners who are Munyampundu Alphonse, Muhizi André, Mukarwego Emerthe and Sebahire François. He argues that the judge motivates that they filed for the one who was not supposed to be filed for, but he disregarded the ground for filing the plot bases on the decision made by Kigali city. [6] Kayiranga Rukumbi Bernard, the Counsel for Kigali city states that administration of the government is the same and it is unlimited, that the duties of the certain organ of the government attributed to another organ, the last organ take over those duties, and it becomes responsible for the faults that are committed. He explains that in this judgment, the duties regarding to the plots in Kigali City were attributed to the districts, which means that the land cases, even if the decisions were made by Kigali City, the districts must be liable for them; that the Supreme is already made the jurisprudence about the issues like this one, in the judgment Nº RCAA 0057/05/CS, Succession Rukeba c/ MINITRAPE rendered on 10 February 2006, whereby the 1 It based on article 67(17), Law No 08/2006 of 24/02/2006 determining the organization and functioning of the district

## Page 4

Court found that, in order to continue the hearing, the Kigali city must summoned as the successor of MINITRAPE, thus he thinks that the Supreme Court should summon Gasabo district as it is in the case mentioned above in the presence of Kigali City then the hearing continues. VIEW OF THE COURT [7] Article 67 (10) Law No 08/2006 of 24/02/2006 determining the organization and functioning of the district, promoting land use, organizing and allotting plots in the District. [8] In this judgment, the case file demonstrating that the decision which allots plots No 1068 to Kalisa Evariste was made by Mayor of Kigali city on 07 March 2001. It also demonstrates that Munyampundu Alphonse, Muhizi André, Mukarwego Emerthe and Sebahire François applied an administrative appeal to the Mayor of Kigali City on 14 August 2009 requesting the annulment of that decision as it is provided for by article 339 of the law No 18/2004 of 20/06/2004 relating to the civil, commercial, labour and procedure which was in force that time. [9] The Court is finding, as the High Court found, the fact that the mentioned judgment above be allotted to Kalisa Evariste, allotting the plots were in power of Kigali City, then after the time for filling the claim those obligations were attributed to the district, those mean that Kigali city was not the subject to be filled for after the administrative appeal made by Munyampundu Alphonse, Muhizi André, Mukarwego Emerthe and Sebahire François because the Law No 08/2006 of 24/02/2006 mentioned above, there is no where the legislator provides for that the judgments resulting from the decision of allotting the plots who were made before the promulgation of that law, the Kigali city will be sued, they imply that Gasabo district was given the power on what regards the land use and allotting the plots which in its territory, including what are not resolved by Kigali city (Transfer of rights and obligations) [10] The Court also finds that it does not base on that fact that the administrative appeal was before the Mayor of Kigali City in order to rule that Kigali city should have been sued, because that informal appeal was done before the authority that does not still have the competence and obligations of allotting the plots. [11] According to the motivation provided above, the Court is finding that the obligations of allotting the plots are not in the hand of Kigali and the power is given to the districts in its territory; it is the motive which leads Kigali city to not be sued in the judgment relates with allotting the plots which has done when those obligations were still in its power. Determining whether the appellants should be awarded the damages they requested for [12] Nkanika Alimasi, Counsel for the appellants states that the fact Kigali city made it hard for them for requesting what are not provided by law, which led them to spend in appeal, and they delayed their judgment, Munyampundu Alphonse, Muhizi André, Mukarwego Emerthe and Sebahire François must be given 1,000,000Frw of the procedural fees (5,00,000Frw on every instance), 1,000,000Frw of the Counsel fees and 12,000,000Frw of moral damages (3,000,000Frw for everyone).

## Page 5

[13] Kayiranga Rukumbi Bernard, the Counsel for Kigali city states that those requested damages by the appellants are groundless since Kigali city used it rights as the respondent, thus it should not be considered as delaying the judgment because to raise an objection is the lawfully right that the party is granted. VIEW OF THE COURT [14] Article 258 of the civil code book three( CCBIII), it provides for that “any act of man, which causes damage to another obliges the person by whose fault it happened to repair it”. [15] The Court finds that as it was motivated above, the fact that the appeal of Munyampundu Alphonse, Muhizi André, Mukarwego Emerthe and Sebahire François has not merit, it means that they should not be awarded the damages in this judgment, especially that Kigali city did not commit any fault so that it would do liable of the damages as it is provided for by article 258 mentioned above. III. DECISION OF THE COURT [16] It holds that the appeal submitted by Munyampundu Alphonse, Muhizi André, Mukarwego Emerthe and Sebahire François has no merit; [17] It rules that the judgment No RAD 0008/10/HC/KIG rendered by the High Court on 11 December 2012 is sustained. [18] It orders that the Court fees deposited by the appellants are equal to the expenses of the judgment.