[2025] UGHCCD 91

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS CAUSE NO. 268 OF 2022**

# **KAGANDA STEPHEN :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS UGANDA NATIONAL BUREAU OF STANDARDS :::::::::::::::: RESPONDENTS**

## **BEFORE: HON. JUSTICE BONIFACE WAMALA**

#### **RULING**

### **Introduction**

[1] This application was brought by Notice of Motion under Article 28(1), 44(c), 42 & 139 of the Constitution, Sections 33 & 36 of the Judicature Act Cap 13, and Rules 3 & 6 of the Judicature (Judicial Review) Rules 2009 seeking a declaration and orders that;

- a) A declaration doth issue that the applicant's dismissal was wrongful, unfair and unlawful. - b) A writ of Certiorari doth issue quashing the respondent's decision to dismiss the applicant from employment. - c) A writ of Mandamus doth issue compelling the respondent to pay the applicant accruing emoluments from the time of dismissal to the end of the contract including but not limited to salary, gratuity, medical benefits and NSSF contributions. - d) General and punitive damages be awarded to the applicant. - e) The costs of the suit be provided for.

[2] The grounds upon which the application is based are summarized in the Notice of Motion and also set out in the affidavit deposed by the applicant in support of the application. Briefly the grounds are that the applicant was employed by the respondent as a driver on a three- year renewable contract. Upon expiry of the first contract, he was offered another three- year renewable contract that took effect on 1st April 2022. The applicant performed his duties diligently in accordance with his contract of employment until he was summarily dismissed by the respondent on 28th September 2022. On 20th July 2022, the applicant had received a phone call from the respondent informing him of a complaint against him regarding unauthorized use of a vehicle that had been assigned to him. On 26th July 2022, he received an email requesting him to appear before the investigations committee about the complaint; which he did on 27th July 2022. On 16th August 2022, he received a disciplinary notification from the respondent requesting him to appear before the disciplinary committee and file a written defense. On 18th August 2022, he received another email from the respondent notifying him of the rights available to him including the right to be accompanied at the hearing and the right to cross examine the respondent's witnesses who were to be his supervisors.

[3] The deponent further stated that he wrote to the secretary of the disciplinary committee requesting to be availed the investigation report, list of witnesses and any documentary or electronic evidence they intended to rely on and was only availed the investigation report and was informed that the respondent's witnesses were to be his supervisors and that it was not a court case warranting cross examination. The applicant submitted his response denying all allegations and on 2nd September 2022, he appeared together with his lawyer before the disciplinary committee. He averred that the head of surveillance who was mentioned in the complaint was the chairperson of the disciplinary committee and no witness or other evidence was brought against him and his lawyer's request to file written submissions was rejected. The applicant and the respondent received a copy of the dissenting opinion of the branch secretary for labour union at the respondent who was one of the members of the disciplinary committee but the respondent ignored it and called for a management meeting on 27th September 2022 that took the decision to dismiss him; at which meeting the said branch secretary of the labour union was absent. On 29th September 2022, the applicant received a letter dismissing him from employment. The applicant believes the process that was followed violated his right to a fair hearing and was illegal and procedurally improper.

[4] The respondent opposed the application through an affidavit in reply deposed by **Ms. Agonzibwa Caroline**, the Principal Legal Officer of the respondent. She stated that the applicant was issued with warning letters during his employment dated 25th August 2020 and 25th May 2021. The applicant was subjected to disciplinary action on 25th August 2022 as envisaged under the laws and the respondent's Human Resource Management Policies and Procedures Manual 2021. The applicant was duly informed of the allegations against him and given an opportunity defend himself. After the hearing of the matter, the disciplinary committee compiled a report and sent the same to management with recommendations. The respondent's management in its meeting held on 27th September 2022, after satisfying itself that due process was followed by the disciplinary committee, dismissed the applicant from service of the respondent. She concluded that the respondent accorded the applicant a fair hearing and followed all the due processes in dismissing the applicant.

#### **Representation and Hearing**

[5] At the hearing the applicant was represented by **Mr. Kyobe William** from M/s KAL Advocates while the respondent was represented by **Ms**. **Doreen Nanvule** and **Mr. Kakuru Luke** from the Legal Department of the respondent. The hearing proceeded by way of written submissions which were duly filed by both counsel and have been taken into consideration in the determination of the matter before Court.

#### **Issues for determination by the Court**

[6] Two issues were agreed upon for determination by the Court, namely;

- *a) Whether the application discloses any sufficient grounds for judicial review?* - b) *Whether the applicant is entitled to the reliefs claimed?*

## **Resolution of the Issues**

# **Issue 1: Whether the application discloses any sufficient grounds for judicial review?**

[7] Judicial review is concerned not with the decision but the decision making process. Essentially, judicial review involves an assessment of the manner in which a decision is made. It is not an appeal and the jurisdiction is exercised in a supervisory manner, not to vindicate rights as such but to ensure that public powers are exercised in accordance with the basic standards of legality, fairness and rationality. The duty of the court, therefore, is to examine the circumstances under which the impugned decision or act was done so as to determine whether it was fair, rational and/or arrived at in accordance with the rules of natural justice. See: *Attorney General v Yustus Tinkasimmire & Others, CACA No. 208 of 2013* and *Kuluo Joseph Andrew & Others v Attorney General & Others, HC MC No.1 06 of 2010*.

[8] It therefore follows that the court may provide specific remedies under judicial review where it is satisfied that the named authority has acted unlawfully. A public authority will be found to have acted unlawfully if it has made a decision or done something: without the legal power to do so (unlawful on the grounds of illegality); or so unreasonable that no reasonable decisionmaker could have come to the same decision or done the same thing (unlawful on the grounds of unreasonableness or irrationality); or without observing the rules of natural justice (unlawful on grounds of procedural impropriety or unfairness). See: *ACP Bakaleke Siraji v Attorney General, HC MC No. 212 of 2018*.

[9] On the case before me, the decision challenged by the applicant is his dismissal by the respondent. The allegation by the applicant is that the decision of the respondent was tainted with illegality and procedural impropriety. There was no specific allegation based on the ground of irrationality. I will thus proceed to consider the allegations based on the grounds of illegality and procedural impropriety.

## *The Ground of Illegality*

[10] Illegality has been described as the instance when the decision making authority commits an error in law in the process of making a decision or making the act the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of the law or its principles are instances of illegality. See: *Council of Civil Service Unions v Minister for Civil Service (1985) AC 375*. A public authority will be found to have acted unlawfully if it has made a decision or done something without the legal power to do so. Decisions made without legal power are said to be ultra vires, which is expressed through two requirements: one is that a public authority may not act beyond its statutory power; the second covers abuse of power and defects in the exercise. See: *Dr. Lam-Lagoro James v Muni University, HCMC No. 007 of 2016*.

[11] In this case, the point of illegality alleged by the applicant is that the applicant was dismissed when the statutory time limit within which to impose a disciplinary penalty had elapsed. Counsel for the applicant relied on Code 3(1) of the Disciplinary Code under the First Schedule of the Employment Act 2006 [now Second Schedule under the Employment Act Cap 226] where it is stipulated that an employer shall not impose a disciplinary penalty more than fifteen days after the occurrence that gave rise to the disciplinary action. Counsel submitted that if a dismissal or indeed a disciplinary penalty is imposed beyond the stated time, it must automatically be declared unlawful since the employer would be deemed to have waived their right to terminate or impose a disciplinary penalty onto the employee. Counsel stated that in this case, the event that gave rise to the disciplinary action occurred on 19th July 2022 and the Executive Director of the respondent was informed on 20th July 2022. However, the disciplinary penalty was imposed onto the applicant on 22nd September 2022, way after the stated period of 15 days within which the respondent could legally impose a disciplinary penalty. Counsel concluded that the decision to dismiss the applicant was therefore unlawful and should be quashed by the Court. No specific response was made by counsel for the respondent to this submission.

[12] Code 3(1) of the Disciplinary Code under the First Schedule of the Employment Act 2006 [now Second Schedule under the Employment Act Cap 226] provides as follows –

*"In deciding on the imposition of a disciplinary penalty, the employer shall have regard to the circumstances of the employee as well as the circumstances of the infringement itself and, an employer shall not impose a disciplinary penalty more than fifteen days after the occurrence which gave rise to the disciplinary action."*

[13] However, the above provision in the Code should be read together with Code 11 thereof, which provides that *"Disciplinary penalties which may be imposed shall be limited to those prescribed in section 61 and shall be subject to the restrictions set out in sub-sections (4) and (5) of that section"*. Section 61 of the Employment Act Cap 226 provides as follows;

*"Disciplinary penalties*

*(1) This section and sections 62 and 63 shall apply where an employer imposes a disciplinary penalty, other than dismissal, on an employee because of neglect, failure or alleged failure on the part of an employee to carry out his or her duties under his or her contract of service.*

- *(2) 'Disciplinary penalty' for the purposes of this Part includes –* - *(a) A written warning;* - *(b) Reprimand; and* - *(c) Suspension from work.* - *(3) An employer is entitled to impose a disciplinary penalty only where it is reasonable to do so in the particular circumstances and what is reasonable shall be decided by considering –* - *(a) the nature of the neglect, failure or alleged failure on the part of the employee, the penalty imposed by the employer, the procedure followed by the employer in imposing the penalty, the reformed conduct of the employee and, if any, the personal circumstances of the employee; and* - *(b) the disciplinary code set out in Schedule 2 to this Act.* - *(4) …* - *(5) Except in exceptional circumstances, an employer who fails to impose a disciplinary penalty within fifteen days from the time he/she becomes aware of the occurrence giving rise to disciplinary action, shall be deemed to have waived the right to do so."*

[14] From the above elaborate provision of the law, it is clear that the provision of the code cited by the applicant's counsel has its roots in the principal legislation; the Employment Act. Its parameters are therefore fully defined by the principal law. According to the provision under section 61(1) of the Employment Act, the disciplinary penalties referred to in the code are those set out under sub-section (2) of the Act and they expressly exclude dismissal. As such, where an employer contemplates dismissal as a sanction to an employee, the provisions of the Disciplinary Code do not apply and cannot be invoked in that regard. From the present facts, the applicant herein was investigated for conduct that, within the framework of the respondent, could be sanctioned by dismissal. The eventual dismissal of the applicant, therefore, was not a disciplinary penalty within the meaning of section 61 of the Employment Act and code 3 of the Disciplinary Code.

[15] Secondly, and equally important, it ought to be noted that even where the sanction imposed is a disciplinary penalty within the meaning of the above stated provisions, the application of the 15 days would not be automatic. This is because of the explicit intention of the legislature as manifested in the provision under section 61(5) of the Act, set out above. The provision indicates that in presence of exceptional circumstances, the presumption that an employer has waived their right to impose a disciplinary action may not apply. As such, the 15 days may not fall like a hammer even where the penalty to be imposed were a disciplinary penalty within the meaning of the law.

[16] Be that as it may, in the present case, it is clear that the sanction imposed by the respondent was not in the category of disciplinary penalties envisaged under the relevant provisions cited above. The respondent was, therefore, seized with the legal power to make the decision dismissing the applicant; the decision was not ultra vires the powers of the respondent and neither did it manifest any evidence of abuse of power. No instance of illegality has therefore been proved against the respondent upon the allegations that were placed before the Court.

## *The Ground of Procedural Impropriety*

#### **Submissions**

[17] It was submitted by Counsel for the applicant that the conduct of the respondent leading to the dismissal of the applicant was tainted with procedural impropriety. Counsel submitted that the procedures in the respondent's Human Resource Manual were not followed and the applicant's right to a fair hearing was not observed in a number of ways. These included the facts that the applicant was not allowed to interface with any of the witnesses that testified against him; the failure by the management committee of the respondent to consider the dissenting opinion of the branch secretary of the labor union before approving the decision of the disciplinary committee dismissing the applicant; and failure to call the said branch secretary to the management meeting that made the decision to dismiss the applicant. Counsel further submitted that the chairperson of the disciplinary committee was the head of surveillance, Daniel Arorwa, who was mentioned in the investigations report as the one that the applicant purported to impersonate. Counsel argued that he could not be expected to be judge in his own cause and was perceived to be biased.

[18] For the respondent, it was submitted that the respondent followed the procedures set out in the Human Resource and Policies Manual. The applicant was notified of the complaint against him on 16th August 2022 and was required to provide his defense and a list of witnesses he wished to rely on at the hearing. The applicant received all the evidence against him and was at no time denied chance to come with his witnesses. Counsel for the respondent disputed the applicant's allegations of bias and stated that they are untenable and misconceived as the applicant did not provide any evidence to support them. Counsel argued that the disciplinary process was conducted in line with the laws of Uganda and the Human Resource Policies and Procedures Manual. Counsel further submitted that the labor union officer not being a member of the respondent's management team could not be accorded audience in the management committee meeting. Counsel also stated that although the opinion of the said labour union officer could guide the disciplinary committee, it could not bind the disciplinary or management committee in their decision making.

## **Determination by the Court**

[19] Procedural impropriety has been defined to mean "the failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision." See: *Council of Civil Service Unions & Others v Minister for the Civil Service (supra)*. Under the law, procedural impropriety encompasses four basic concepts; namely (i) the need to comply with the adopted (and usually statutory) rules for the decision making process; (ii) the requirement of fair hearing; (iii) the requirement that the decision is made without an appearance of bias; (iv) the requirement to comply with any procedural legitimate expectations created by the decision maker. See: *Dr. Lam – Lagoro James v Muni University (supra)*.

[20] Procedural propriety calls for adherence to the rules of natural justice which imports the requirement to hear the other party (audi alteram partem) and the prohibition against being a judge in one's case. The latter essentially provides against bias. Natural justice requires that the person accused should know the nature of the accusation made against them; secondly, that he/she should be given an opportunity to state his/her case; and thirdly, the tribunal should act in good faith. See: *Byrne v Kinematograph Renters Society Ltd [1958]1 WLR 762*.

[21] I will begin with the contention by the applicant's counsel that the respondent did not observe the principles of natural justice while investigating and conducting disciplinary proceedings against the applicant. Counsel particularly argued that the applicant was not accorded a fair hearing; particulars of which included not facing the witnesses that gave evidence against him and not being afforded an opportunity to cross examine them. Counsel argued that this offended the applicant's non-derogable right to fair hearing, and fair and just treatment under the Constitution.

[22] I have stated before in a couple of cases that while it is true that the right to a fair hearing is sacrosanct and non-derogable, it ought to be understood that the full application of the right to a fair hearing under Article 28 of the Constitution is triggered in the case of proceedings before a court or tribunal established by law. Article 28(1) of the Constitution provides that *"In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law."*

[23] When making a decision over termination of an employee's contract, the body, such as the present respondent, would be making a management or administrative decision and would not be acting as a court or tribunal established by law. It would simply be executing its duties as a public body. The constitutional provision that is applicable to the execution of functions by public or administrative bodies is Article 42 of the Constitution. It provides that any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.

[24] In law, for a decision to be fair and just, it must comply with the principles of natural justice. Where the party aggrieved by the decision or action of a public body was summoned and appeared before the body, the court in judicial review would be required to examine the nature of the proceedings for procedural propriety and fairness. The nature of the proceedings is dictated by a number of considerations, including whether the public body has procedural rules established either by statute or within the internal mechanisms of the body; or whether the body only had recourse to the general requirements of the rules of natural justice.

[25] It should be noted that for a public body to adhere to the rules of natural justice, it does not have to conduct proceedings that are akin to a court hearing. The public body only has to ensure that the concerned individual is treated justly and fairly. In order to satisfy that standard, the requirement under natural justice is that the person accused should know the nature of the accusation made against them, be given an opportunity to state their case and the tribunal or public body should act in good faith.

[26] In the present case, the evidence is that when a complaint was received against the applicant, it was referred to an investigation committee of the respondent which interacted with the applicant. The committee made a report on basis of which disciplinary proceedings were commenced against the applicant. The applicant was notified of the pending disciplinary committee proceedings and was asked to make a defence to the allegations. The applicant asked for further and better particulars including the report of the investigation committee which was provided to him. He also asked about the likely witnesses and whether they would be available for him to cross examine them and he was informed that since this was a disciplinary hearing and not a court hearing, there would be no need for cross examination of any witnesses. It is apparent from the material on record that the proceedings of the disciplinary committee relied on statements of witnesses in the investigation report and only called the applicant and witnesses to verify the contents of those statements. The disciplinary committee then made its decision and forwarded the matter to the management committee of the respondent to take a final decision in the matter; leading to the dismissal of the applicant.

[27] From the above sequence of events, I do not find any instance of procedural impropriety or unfairness in the way the respondent conducted the disciplinary hearing. There is no requirement either under the law or under the respondent's Human Resource Manual that a party subject of disciplinary proceedings has, of right, to cross examine witnesses in order for the proceedings to be regular or fair. Indeed, there is no mandatory requirement that witnesses must be called to testify during disciplinary proceedings. As I have stated herein above, the nature of disciplinary proceedings is dictated by a number of considerations, including whether the public body has procedural rules established either by statute or within the internal mechanisms of the body or whether the body only had recourse to the general requirements of the rules of natural justice. As such, a procedure that is not dictated by either statutory rules, internal mechanism or general requirements of the rules of natural justice cannot be a basis for impeachment of a decision by a public body.

[28] In this case, the demand by the applicant to face the witnesses that were interviewed by the investigation committee and to cross examine them was not part of the procedure that was adopted by the disciplinary committee. The disciplinary committee flouted no rule of law or procedure in adopting the procedure they did. What mattered was that they observed the rules of natural justice. From the sequence of events highlighted above, it is clear they adhered to the rules of natural justice.

[29] The other complaint by the applicant against the decision of the respondent was the failure by the management committee of the respondent to consider the dissenting opinion of the branch secretary of the labor union before approving the decision of the disciplinary committee dismissing the applicant; and the failure to call the said branch secretary to the management meeting that made the decision to dismiss the applicant. It is apparent from the record that the said labour union officer was part of the disciplinary committee. He chose to make a dissenting opinion which he disseminated. The majority members of the disciplinary committee disagreed with his opinion. This means that the majority took the day. In law, a dissenting opinion is what it is. It does not prevail over the decision of the majority. It only expresses the points of disagreement of the individual member with the majority opinion. There was no rule that in order for the decision of the disciplinary committee to be carried, all the members had to agree. As such, the existence of a dissenting opinion in the present case did not in any way affect the majority decision of the disciplinary committee.

[30] The second leg of this argument concerned the failure of the management committee to call the said branch union secretary to the management meeting that made the decision to dismiss the applicant. It should be clear that a disciplinary committee operates differently from the management committee of an entity. Although some members of the management committee may form part of the disciplinary committee, when sitting in the management committee, they do not do so as members of the disciplinary committee. They do so in their capacity as members of management. Secondly, when a report of the disciplinary committee is presented to the management committee, it is not for purpose of conducting another disciplinary hearing; it is only for purpose of adoption of the report and taking of a management decision based on the adopted report. It follows, therefore, that the argument by the applicant that the labour union officer and himself should have been called in the management meeting is misguided.

[31] The other complaint by the applicant was that the chairperson of the disciplinary committee was the head of surveillance, Daniel Arorwa, who was mentioned in the investigations report as the one that the applicant purported to impersonate. Counsel argued that he could not be expected to be judge in his own cause and was perceived to be biased. First, the facts ought to be put straight. The allegation was that the applicant had impersonated to be Joel Mutete, the head surveillance. He was not alleged to have impersonated Daniel Arorwa. It only so happened that Daniel Arorwa was the rightful head surveillance at the respondent. The investigation, therefore, concerned whether the person who presented himself as Joel Mutete, the head surveillance was the applicant. This had little or no material connection to Daniel Arorwa, the actual head surveillance. It is not a connection that could place the said Daniel Arorwa in a position of conflict of interest as to occasion either actual, imputed or apparent bias.

[32] I would also state that even then, it should be noted that unlike proceedings before courts or judicial tribunals where the decision makers must be detached from the parties that appear before them, internal disciplinary committees cannot have the benefit of having members that are totally detached from the facts that lead to disciplinary matters. It is only in situations of actual or apparent bias that a person may be required to disqualify themselves from such proceedings.

[33] In an earlier decision in the case of *Mugoya Paul v Uganda Bureau of Statistics (UBOS) HCMC No.118 of 2021*, the applicant proved bias on the part of the Executive Director who chaired the disciplinary committee. The main ground was that the applicant had previously, in response to the warning letters, indicated that there was bad blood between the Executive Director and himself. The Court also found that some of the disciplinary charges involved the applicant's personal conduct towards the Executive Director and that the charges were preferred and signed off by the Executive Director as well as other documents concerning the disciplinary proceedings. The Executive Director was therefore in positions of complainant and prosecutor; he could not at the same time chair the disciplinary committee. The circumstances of the present case are very distinct and nowhere near to disclosure of any form of bias.

[34] Upon consideration of all the allegations by the applicant, it has not been proved that the decision by the respondent leading to the dismissal of the applicant was tainted with any procedural impropriety or unfairness. None of the grounds for judicial review has been proved on a balance of probabilities by the applicant. Issue one is therefore answered in the negative.

## **Issue 2: Whether the applicant is entitled to the reliefs sought?**

[35] In view of the findings above, the claim by the applicant has failed and the applicant is not entitled to any of the reliefs sought in the application. The application is accordingly dismissed with costs to the respondent.

It is so ordered.

*Dated, signed and delivered by email this 16th day of June, 2025.*

**Boniface Wamala JUDGE**