[2024] UGHC 552


## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT MISCELLANEOUS CAUSE NO 41 OF 2023** 5 **(ARISING FROM KIRUHURA CHIEF MAGISTRATES' COURT CRIMINAL CASE KRH-00CR-CO-146 OF 2023)**

**MARK E. KAMANZI ------------------------------------- APPLICANT**

**VERSUS**

- **1. DIRECTOR OF CID--------------------------------- RESPONDENTS** - **2. DIRECTOR OF PUBLIC PROSECUTIONS** - **3. ATTORNEY GENERAL** - 15 **BEFORE:** Hon. Justice Nshimye Allan Paul M.

## **RULING**

## **REPRESENTATION**

The Applicant was represented by Adv. Ntambereki Kandebe, while the 20 Respondent was represented Adv. Anna Kanyago from the Attorney Generals Chambers.

## **BACKGROUND**

The Applicant brought a Judicial Review application by way of a Notice of Motion, 25 basing on the law in Section 36 Judicature Act, Rule 3(a),6,7 & 8(2) of the Judicature (Judicial Review) Rules SI 11 of 2009, seeking orders that;

- 1. An order of certiorari calling for and quashing the decision of the 1st and 2nd respondent preferring and approving charges of malicious damages to 30 property alleged to belong to Mutasingwa Charles in a charge sheet dated 4 th April 2023 against the applicant in Criminal case No KRH-00-CR-CO-146 of 2023 at Kiruhura, Chief Magistrates Court. - 2. A declaration that the dispute between the applicant and a one Mutasingwa and his wife Grace T. Mutasingwa is a civil matter for an alleged breach of 35 contract for sale of land which is already before the High Court of Uganda at Kampala (land Division) Vide HCCS no 653 of 2017.

- 3. A declaration that the charges preferred against the applicant vide criminal case no 146 of 2023 at Kiruhura, Chief magistrate's Court are unfair, illegal, void and untenable at law. - 4. An order that the 3rd respondent pay General, Exemplary and punitive 5 damages to the applicant. - 5. Costs of this application.

The evidence on court record is contained in the affidavit in support of the application by the applicant. SP Agume Bosco swore an affidavit in reply for the 1st respondent, Mr Onencan Moses swore an affidavit in reply for the 2nd 10 respondent and Ms Kalembe Ritah who swore an affidavit in reply for the 3rd respondent.

The Judicial Review application was in respect to the decision of the Director of Public prosecutions (1st respondent) to Charge the applicant in Kiruhura Criminal 15 Case KRH-00CR-CO-146 OF 2023, this prompted the calling of the file from the Chief Magistrates Court at Kiruhura. The application was in the Notice of Motion fixed for hearing on 3rd April 2024. On 08th May 2024 the court gave the parties schedules to file submissions and set 28th June 2024 to deliver the court's decision.

#### 20 **PRELIMINARY OBJECTIONS**

The parties each raised preliminary objections for courts consideration. I will first deal with the salient preliminary objections raised, especially considering that the applicant has questioned the legal validity of the respondent's affidavits in reply to remain on court record.

The applicant submitted that the 3 affidavits in reply filed by the respondents were all commissioned by an advocate on 14 March 2024, who did not have a valid practicing certificate on that date. The applicant put on court record a letter of the Chief Registrar dated 4th April 2024 where it was confirmed that Counsel Suwaya Matovu's practicing Certificate for the year 2024 was issued on 19 30 th March 2024. The applicant then prayed that the three affidavits of the respondents be struck off and the application stays unopposed.

The respondents raised several preliminary objections. That included

Page **2** of **6** 35 1. The assertion that the application is time barred, with the applicant contending that the grounds arose on 4th April 2023 when the charge sheet was presented to the Magistrate Kiruhura. The Respondent in reply contended that the grounds did not arise on 4th April 2023 but when the disclosure was made on 25th September 2023 when disclosure was done, so the application filed on 27th November 2023 was filed within three months.

5 2. The other objection was that the applicant had not exhausted the existing remedies with the Public Body (DPP). The applicant in response to this preliminary objection, stated that the moment the DPP makes her decision to prosecute and present a charge sheet to court, there are no internal / mechanisms inside the office of the DPP to appeal or challenge her decision. 10 He contended that he could only complain against the decision-making process by the office of the DPP through Judicial review.

## **DETERMINATION.**

**A. The applicants raised an objection that the 3 affidavits in reply ought to be**

# 15 **struck out because they are were not commissioned in accordance to the law.**

It is trite that an advocate is not permitted to practice law without a practicing certificate beyond the grace period that ends at the end of February of the year following the one in which the advocate held a practicing certificate. This is in 20 line with the law in **SECTION 11 (2) OF THE ADVOCATES ACT**. The supreme court in in **PROF. SYED HUQ VS THE ISLAMIC UNIVERSITY IN UGANDA CIVIL APPEAL NO.47 OF 1995** held that documents signed without a practicing certificate are invalid.

25 The evidence on court record shows that the affidavits in reply were all commissioned by an advocate who by the 14 March 2024 when she commissioned them did not have a valid Practicing certificate as confirmed by the letter of the Chief Registrar dated 4th April 2024 who confirmed that the commissioner for oaths practicing Certificate for the year 2024 was issued on 30 19th March 2024.

Page **3** of **6** I am mindful of the spirit in **SECTION 14A (1) OF THE ADVOCATES ACT AS AMENDED** on the protection of clients. Courts have in some cases based on this provision to allow the clients rectify the irregularity caused by the 35 advocate. My personal view is that any rectification based on the spirit in section 14A (1) of the Advocates Act, can only be considered after court reaching the conclusion that the affidavit was not dully commissioned in

accordance of the law. In the application at hand the respondents have not made any prayer for extension of time to rectify the identified irregularity that the commissioner for oath did not have a valid practicing certificate as on 14 March 2024 when the affidavits in reply were commissioned.

I find that the affidavits in reply sworn for the respondents by SP Agume Bosco for the 1st respondent, Mr Onencan Moses for the 2nd respondent and Ms Kalembe Ritah for the 3rd respondent were not dully commissioned as required by law as such are invalid. The court cannot validate a document that 10 has not been commissioned in accordance with the law, so the affidavits in reply in this application are liable to be struck out.

# **B. The respondents raised a preliminary objection that application is time barred.**

It is trite that an application for judicial review ought to be filed within 3 months from the date when the grounds of the application arose as is provided in **SECTION 5(1) OF THE JUDICATURE (JUDICIAL REVIEW) RULES, 2009**, which states that;

#### 20 *"5. Time for applying for judicial review*

*(1) An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of the application first arose, unless the Court considers that there is good reason for extending the period within which the application shall be* 25 *made."*

The evidence on court record shows that

- i. The application was endorsed by the Deputy Registry of the High Court at Mbarara on 20th November 2023. It is nonetheless strange that the 30 applicant in his submissions in rejoinder states that the application was filed on 27th November 2023 (see the 4th last line at page 3 of the submission in rejoinder). I will take the date of 20th November 2023 since it backed up by the signature of the Deputy Registrar. - ii. The applicant's application is seeking among others an order of certiorari 35 calling for and **quashing the decision of the 1st and 2nd respondent preferring and approving charges** of malicious damages to property alleged to belong to Mutasingwa Charles *in a charge sheet dated 4th*

*April 2023* against the applicant in Criminal case No KRH-00-CR-CO-146 of 2023 at Kiruhura, Chief Magistrates Court.

It is clear that in the applicant's own application, he makes reference to a 5 desire for an order to quash the decision leading to a charge sheet signed on 4th April 2023 (*See Charge sheet attached as annexture A to the affidavit in support and the one sanctioned that is on the lower court file)*

- 10 The office of the Director of Public Prosecutions (DPP) is created by Article 120 of the Ugandan constitution. The DPP's functions include the institution of **criminal** proceedings against any person or authority in any court with competent jurisdiction as provided in Article 120 (3)(b) of the Ugandan constitution. - 15 I have perused the lower court record in Kiruhura Chief Magistrates' Court Criminal Case KRH-00-CR-CO-146 Of 2023. I find that the charge sheet against the applicant herein was sanctioned by the RSA on 4th April 2023. The certified record of proceedings also confirms that the charges were read out to the applicant herein and he pleaded not guilty on 4th April 2023. - 20

The applicant in his submissions argued that court should take the date of 25th September 2023 as the date when the grounds of this application arose because it is the date that the state made a disclosure of evidence and documents to him, which has prompted this application. In essence the applicant is claiming that the 25 decision that is forming the basis of his grounds is not the sanctioning of Charges by the DPP (sanctioned on 4th April 2023), but the disclosure from the DPP (disclosure on 25th September 2023).

It is my finding that the grounds arose when the DPP in accordance with her 30 function in Article 120 (3)(b) of the Ugandan constitution sanctioned the charges on 4th April 2023.

Sanctioning of charges is a decision-making aspect that the DPP has to take in accordance with her functions, whereas disclosure of evidence is an obligation

Page **5** of **6** 35 that the DPP has to do in the criminal trial procedure. Disclosure of evidence is not discretionary to the DPP, whereas sanctioning of charges is an independent and discretionary burden of the DPP. In my opinion, therefore the grounds giving rise

to an application for judicial review would arise after the DPP makes a decision they are duty bound to do, which in this case amounts to the sanctioning of Charges.

- The Charges were sanctioned on 4^th April 2023, the applicant ought to have $\mathsf{S}$ challenged the process that led to the sanctioning of the Charges by the DPP within 3 months from 4^th April 2023 or in alternative ought to have made an application for extension of time to file the application, which was not done. This implies that when this application for judicial review was filed in court on $20^{\rm th}$ November 2023 it was out of the stipulated time in the law. I find that the - 10

Having determined the two preliminary objections above, I see no need to delve into the rest of the preliminary Objections, because the above two preliminary objections determine the matter.

I would also like to state that a complainant in a criminal case, or an accused person charged in criminal case, or a third party to a criminal case are all permitted if they so desire to formally write a compliant and lodge it with the complaints Department at the offices of the Director of Public Prosecutions. The 20 Director of Public Prosecutions can then consider the complaint and take the relevant actions, which if it merits, can include a decision to discontinue the prosecution of an accused at any stage before judgment, as is stipulated in Article 120 $(3)(d)$ of the Ugandan constitution.

$25$

In conclusion, I order that.

application was filed out of time.

- 1. The respondent's affidavits in reply are struck out. - 2. The application is dismissed for having been filed out of time. - No order as to costs is made.

Mrstet?

**NSHIMYE ALLAN PAUL M. JUDGE** 28.06.2024

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