[2025] UGHC 282

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

## MISCELLANEOUS CAUSE NO. 0001 OF 2025

## IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

#### KANABA ESTATES AND AGENCIES LTD :::::::::::::::::::::::::::::::::::

#### **VERSUS**

# 1. DR. SAM MAYANJA 2. THE ATTORNEY GENERAL OF UGANDA ::::::::::::::::::::::::::RESPONDENTS

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

#### **RULING**

The Applicant filed this application for judicial review by way of Notice of Motion under Articles 42 & 44 of the Constitution of the Republic of Uganda, Section 40 of the Judicature Act cap 16, Section 98 of the Civil Procedure Act cap 282, Rules 1, 3, 6, 7 & 8 of the Judicature (Judicial Review) (Amendment) Rules 2019 seeking orders that;

1. An order of certiorari be issued quashing the decision of the Minister of State for Lands (the 1^st respondent) contained in a letter Ref LAD $90/196/310$ dated $23^{rd}$ January 2025 addressed to the Resident District Commissioner, Kyankwanzi District and copied to several officials and Dr. Tulyahikayo – the managing director of the applicant which literally reviews that Judgment in H. C. C. S No. 17 of 2020 (now Kiboga HCCS No. 29) of 2024) and reverses the Judge's findings, conclusions, orders and rubbishes the whole trial and contemptuously directs the cancellation of the applicant's certificate of title to land comprised in Plot 40 Singo Block 746 Kiboga at Bwaba, Kanamwera, Kiboga district (now Kyankwanzi district) measuring approximately 1011.0.

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- An order of prohibition prohibiting the 1% respondent, the Resident District Commissioner Kyanwanzi or any other government official or functionary or local person acting on their behalf from implementing the decision of the 1\* respondent. - A permanent injunction doth issue against the respondents restraining them from in any way reopening the hearing of the civil suit or in any way interfering with the implementation of the court orders emanating from the judgment of the High Court in respect of the suit land comprised in Plot 40 Singo Block 746 Kiboga at Bwaba Kanamwera, Kiboga districit (now Kyankwanzi district where the said land is the same subject matter in Kiboga HCCS No. 29 of 2024 in respect of which judgment was delivered in the applicant's favour and in respect of Court of Appeal civil appeal no. 767 of 2024 which is pending adjudication. - A declaration that the decision of the 1\* respondent is illegal, irrational and procedurally improper, ipso facto, null and void ab initio and of no legal consequences. - . The applicant is entitled to general, aggravated and punitive damages as will be assessed by court. - 6. The costs of this application be provided for.

The grounds upon which the application is set are laid out briefly in the Notice of Motion, and expounded upon in the affidavit in support sworn by Dr. Jersy Rwakairu Tulyahikayo —the managing director of the Applicant but briefly are;

- 1. That at all times, the applicant has been the lawful registered proprietor of land comprised in Plot 40 Singo Block 746 Kiboga at Bwaba, Kanamwera, Kiboga districit (now Kyankwanzi district) measuring approximately 1011.0 (hereinafter referred to as the suit land) and the applicant has at all material times been in possession, use and occupation of the said suit land. - That sometime in 2020, a one Mugerwa Issa and 85 others hereinafter called the plaintiffs filed a suit vide Mubende High Court civil suit no. 17 of 2020 (now Kiboga High Court civil suit no. 029 of 2024) whereby they claimed inter alia that the applicant had fraudulently acquired the suit land and prayed that the certificate of title be cancelled.

- . That after a protracted fully fledged hearing, the court held in favour of the applicant and made several orders and the said plaintiffs have since appealed the decision vide Court of Appeal no. 767 of 2024 and the applicant filed a cross appeal. - . That to the applicant's utter dismay and consternation on the 16™ day of January 2025, the 1\* respondent in the company of a one Phiona Barungi a senior presidential assistant (special duties) attached to state house, Entebbe and in company of several other government officials and chiefs of the area convened an impromptu public rally at the suit land at which the 1\* respondent conduced a draconian summary hearing of the purported resident complainants in respect of the suit land and made contemptuous pronouncements which in effect rubbished the above judgment and the whole hearing. - . That at the said public rally, the 1\* respondent directed inter alia that the applicant's certificate of title had been obtained through fraud and it ought to be cancelled and the managing director Dr. Turyahikayo should be arrested on sight and that the occupants should resist any eviction from the suit land and they should freely occupy the rest of the suit land as they were purportedly bonafide and lawful occupants. - . Thaton 23" January, 2025, the 1\* respondent put his unlawful pronouncements in writing in a letter addressed to the RDC Kyankwanzi district, and reiterated his illegal directives and copied the impugned letter to several authorities. - . That the applicant was not at all given a hearing before the 1\* respondent unilaterally handed down the above decision. - . That the applicant contends that the process of the 1\* respondent's arriving at the impugned decision is utterly flawed and the decision by the 1\* respondent is itself illegal, irrational, procedurally improper, null and void ab initio. - . That the implementation of the impugned decision will disrupt the existing status quo prior to the conclusion of the pending applications, appeal and cross appeal respectively and the same will be rendered nugatory. - 10. That the applicant has been greatly inconvenienced by the impugned decision and has suffered tremendously hence it is entitled to substantial general, aggravated and punitive damages and costs of the application.

The respondents did not file any affidavit in reply despite being effectively served with the application. Therefore, this matter proceeded ex parte.

#### Representation.

The applicant was represented by Senior Counsel John Mary Mugisha assisted by Mr. Didas Muhinda. Counsel filed written submission which have been considered in this ruling

#### Issues

The following are in my view the issues for determination;

- 1. Whether any decision was made by the 1\* respondent. - 2. Whether the respondents acted illegally, irregularly and improperly in coming to the decision contained in a letter Referenced LAD 90/196/310 dated 23 January, 2025. - 3. What remedies are available to the parties?

#### The Law

Section 40 (1) of the Judicature Act Cap 16, provides that the High Court may upon application for judicial review grant an order of mandamus, requiring any act to be done, an order of prohibition, prohibiting any proceedings or matter, an order of certiorari, removing any proceedings or matter to the High Court, an injunction to restrain a person from acting in any office in which he or she is entitled to act or a declaration or any other injunction.

Rule 3 (1) and (2) of the Judicature (Judicial Review) Rules S. I 11 of 2009, provides that a party may apply for an order of prohibition, certiorari, declaration and injunction by way of judicial review in appropriate cases.

Furthermore, Rule 3 of the Judicature (Judicial Review) (Amendment) Rules S.132 of 2019 defines judicial review to mean the process by which the High Court exercises it supervisory jurisdiction over the proceedings and decisions of subordinate courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with performance of public acts and duties.

Rule 3A of the Judicature (Judicial Review) (Amendment) Rules SI 32 of 2019 provides that any person who has a direct or sufficient interest in a matter may apply for judicial review.

In my own understanding judicial review is the process of challenging a decision or an act taken or done by a public body or a person working in public body which decision or act is deemed to be unlawfully done or taken.

Judicial review is not concerned with the decision made but with the decision making process i.e. the process through which the decision was made.

It is pertinent to note that the orders sought under Judicial Review do not determine private rights. The said orders are discretionary in nature and court is at liberty to grant them depending on the circumstances of the case where there has been violation of the principles of natural Justice. See: Godber Wilson Tumushabe V Makerere University MA No. 121 of 2023.

The grounds for judicial review were elaborated by Justice Stephen Musota in the case of Ouma Adea V Attorney General and Busia District Local Government (HCT 04-CV-MA-0095-2012) where court held that for an application for judicial review to succeed, the applicant must show that the decision in question was illegal, irrational, or procedurally improper.

#### Resolution of the issues.

## 1. Whether any decision was made by the 1\* respondent

A decision means a conclusion or a resolution reached after consideration. This may be both administrative and judicial determinations. See The paper by Hon. Justice M. S Arach Amoko (RIP) on The art of decision making in a trial.

In the instant case it is averred by the applicant in the notice of motion and affidavit in support that the decision made by the 1\* respondent who is the Minister of state for Lands is contained in a letter Ref. CAD 90/196/310 dated 23" January 2025 wherein he allegedly reviewed judgment in HCCS No.017 of 2020 and reversed the findings and conclusions of court. That he directed for the cancellation of the applicant's certificate of title.

T wish to refer to some of the parts of the impugned letter by the Hon. Minister below;

"This office was petitioned by the Senior Presidential Assistant .... who was also petitioned by approximately 400 residents ......

There was also a civil suit No.107 of 2020 which did not definitely decide the issue of bibanja holders.

In view of the above information in the petition I conducted a locus visit which was heavily attended by the wanainchi including the Deputy RDC .......

During the locus meeting, all wanainchi who gave oral testimony are tested to the truth of the information in the petition and added more details.

In view of the above facts and law, I direct as follows:

That the deeds of ........are hereby cancelled and by copy of this letter the commissioner Land Registration is guided to liaise with the District Land Board of Uganda Land Commission to engage in a process of formalizing cancellation of the title.

That the court civil suit n0.0107 of 2020 is not operative and of no effect until the procedure of executing the decree and order made thereunder.........."

It is my considered position that from the reading of the above letter, the Hon. Minister heard some testimonies, made conclusions and directives. He therefore made a decision.

# 2. Whether the respondents acted illegally, irregular, and improperly in coming to the decision contained in a letter ref CAD 90/196/310 dated 23 January, 2025.

Learned Senior Counsel for the applicant submitted that the applicant's grievance is concerned with the propriety of the process of decision making made by the 1\* respondent. That the applicant was not invited to attend the proceedings culminating into the 1% respondent putting his unlawful pronouncements in writing in a letter addressed to the RDC Kyankwanzi district containing illegal directives and copied to several authorities. That the 1# respondent's decision of unilaterally reaching at an illegal decision without giving the applicant a hearing did not meet the requisite standard of legality, fairness and rationality which is against Article 44 (c) of the Ugandan Constitution. Counsel further submitted that the process by the 1% respondent arriving at the impugned decision was utterly flawed and the decision is itself illegal, irrational and procedurally improper, null and void ab initio in as much as the 1\* respondent acted ultra vires his mandate when he purported to conduct a hearing and issued the directives/ orders which are a preserve of the courts of law, purported to review, reverse and to rubbish the High Court judgment which was in favour of the applicant.

Further that the decision is an affront on the independence of the judiciary as is enshrined in the constitution, the rule of law and constitutionalism. That the Implementation of the 1 respondent's decision renders the conventional courts of law toothless bulldogs and/or laughing stocks, that the 1 respondent is not mandated to vary, review/ reverse/countermand court orders or handle simultaneously matters which are already in the realm of courts and/or are still pending in courts of law and that the 1¥ respondent has abused the judicial process and the finality of court decisions.

Counsel stated that the 1 respondent acted illegally and ultra vires when he issued orders contrary to the court decision or judgment in respect of the subject matter. He cited the case of Walugembe Daniel V Attorney General misc. cause no. 231 of 2018 where court held that the commission of inquiry has no mandate whatsoever to issue orders contrary to court orders or judgments over the same subject matter. He further cited the cases of Mucunguzi Myers V Sarah Kulata Basangwa and Anor HC MA No. 1329 of 2014 and Pastor Daniel 'Walugembe V Sandra Ndyomugyenyi and Anor HCMA No. 181 of 2023.

## Analysis by court.

In this case, the applicant is challenging the orders of the 1\* respondent contained in a letter dated 23" January, 2025 addressed to the Resident District Commissioner, Kyankwanzi district and copied to several other officials.

As already mentioned above, judicial review is concerned with propriety of the decision making process or procedure and not the decision made itself. See the case of Koluo Joseph Andres & 2 Ors V Attorney General Miscellaneous Application No.106 of 2010 where it was held that;

"It is trite law that judicial review is not concerned with the decision per se but the decision making process. Essentially judicial review involves the assessment of the manner in which the decision is made. It is not appeal and the jurisdiction is exercised in a supervisory manner not to vindicate rights as such but to ensure public powers are exercised in accordance with the basic standards of legality fairness and rationality.

The decision taken the 1\* respondent in this matter is therefore subject to judicial review.

## Illegality and procedural impropriety.

The applicants contended that the 1\* respondent acted illegally when he failed to invite the applicant for a hearing when he conducted the hearing with the residents and the plaintiffs in Civil Suit No. 29 of 2024 over the suit land. That the conduct of the minister did not meet the requisite standard of legality, fairness and rationality which is against Article 44 of the Constitution that prohibits derogation from the right to a fair hearing.

In the case of Cecil David Edward Hugh V The Attorney General, Miscellaneous Application NO. 266 of 2013, the court held that;

"illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Court further noted that acting without jurisdiction or ultra vires or contrary to the provisions of the law or its principles are instances of illegality."

According to the case of Council of Civil Service Unions V Minister of Civil Service (1985) AC 375 procedural illegality is when the decision-making authority fails to act fairly in the process of its decision making which would include failure by an administrative authority or tribunal to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.

Article 28 of the Constitution of the Republic of Uganda 1995 provides for a right to a fair hearing which right is non-derogable. As cited by counsel for the applicant, the rules of natural justice demand that no party should be condemned unheard.

In the 1\* respondent's letter (annexure 'O' to the affidavit in support), he stated that he was petitioned by the senior presidential assistant Ms. Phiona Barungi who had been petitioned by approximately 400 residents of Kabaale village in Kyankwanzi district over the said residents living under the fear of forceful evictions and unlawful detention by Dr. Tulyahikayo the Managing Director of applicant company following the decision of this court vide HCCS No. 29 of 2024.

In the impugned letter, the 1\* respondent indicated that he conducted a locus visit in which a number of residents (wanaichi) gave oral testimonies on issues to do with the suit land.

The 1% respondent thereafter made a number of directives some of which I have referred to in this ruling.

The directives and orders of the 1\* respondent referred to above clearly affected the decision earlier made by this court as well as the applicant and its Managing Director who are referred to in the same letter.

As earlier observed there was no indication in the said letter that the applicant or its representatives were invited for the said locus visit / hearing conducted by the 1\* respondent.

In Halsbury's Laws of England 5 Edition 2010 Vol.61 par.639 it is stated as follows:

"The rule that no person is to be condemned unless that person has been given prior notice of allegations against him/her and a fair opportunity to be heard (the audi alteram partem rule) is a /fundamental principle of justice. This rule has been refined and adopted to govern the proceedings of bodies other than judicial tribunals, and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court"

In the instant case the applicant was not accorded an opportunity to be heard.

I therefore find that failure by the 1% respondent to accord the applicant a hearing and by making directives that affected a decision earlier made by court amounted to an illegality and impropriety.

The 1\* respondent by directing for the cancellation of the certificate of title in matter which had been adjudicated upon and determined by a court of law and is currently on appeal, he acted ultra vires and illegally.

## Irrationality.

Irrationality occurs when there is such gross unreasonableness in the decision taken or an act done that no reasonable authority, addressing itself to the facts and the law before it would have made such a decision.

In his directives, the 1\* respondent ordered that the director of the applicant and his managers should be arrested and charged with several offences which included trespass, forceful entry, malicious damage to property, threatening violence, disturbing the peace of the dead among others. He added that the said director and managers should not granted a police bond.

It is my considered view that it is not in the 1\* respondent's mandate to direct preferring of charges against any person or to order that police grants no bond to any suspect. This would be a violation of the rights of those individuals arrested. It also amounts to interference with the Constitutional mandate of the Director of Public Prosecutions and Uganda Police Force. At most he would direct the police to investigate and if there were any offences committed then it would be Director of Public prosecutions to prefer charges against the culprits. The directive to charge and not to grant a police bond was unlawful and irrational.

The applicant averred and it was also argued by the Senior learned counsel for the applicant that the decision of the 1\* respondent reviewed and reversed the court's findings in HCCS No. 29 of 2024.

The 1\* respondent in his directive in the impugned letter stated that the orders in Civil Suit No. 017 of 2020 which is at the same time Civil Suit No. 29 of 2024 were not operative and of no effect until the process of execution was made. This in my view was the correct position. This statement did not mean that the orders of court had been reversed. It emphasized the need for execution process. There is an allegation in the same letter that the applicant's agents were evicting the plaintiffs/appellants in the suit in issue. This is what the police reeded to investigate for appropriate action.

However, I take judicial notice of the fact that this court has already granted an order staying execution in that suit pending the disposal of the pending appeal arising therefrom.

The above notwithstanding, I find that the 1\* respondent acted irrationally, illegally and ultra vires as earlier explained.

# 3. What remedies are available to the parties?

The applicant prayed for several orders against the respondents which included orders of certiorari, prohibition, permanent injunction, damages and costs.

Rule 3 of the Judicature (Judicial Review) (Amendment) Rules SI 32 of 2019 defines certiorari to mean an order by court to quash a decision which is ultra vires and prohibition means an order issued by the court to forbid some act or decision which is ultra vires.

In the Court of Appeal case of Eng. Pascal R. Gakyaro V Civil Aviation Authority, Civil Appeal No. 6 of 2006, it was held, inter alia, that the overall effect of denial of natural justice to an aggrieved party renders the decision void and of no effect.

T accordingly allow the application and grant the orders sought.

# Damages

The applicant prayed to be awarded general, aggravated and punitive damages. The learned Senior counsel submitted that that pursuant to Rule 8(1) 9 (a) of the Judicature (Judicial Review) Rules 2019 damages are awardable. Counsel did not justify why damages should be awarded apart from citing cases where they were awarded. There is nothing to show what the applicant had suffered so far.

Am not convinced to award any damages.

## Costs

Section 27 of the Civil Procedure Act provide that costs follow the event unless court finds otherwise. In this case I find it proper not to award costs.

Therefore, this application succeeds with the following orders:

- a) A declaration that the 1% respondent's directive vide Ref LAD 90/196/310 dated 23/1/2025 is illegal, irrational and procedurally improper. - b) An order of certiorari doth issue quashing the decision/directives of the 1\* respondent contained in the letter Ref LAD 90/196/310 dated 23/1/2025 addressed to the Resident District commissioner, Kyankwanzi district and copied to various offices. - c) An order of prohibition doth issue restraining the respondents and their agents from implementing the decision of the 1\* respondent in so far as it affects the decision in HCCS No. 029 of 2024. - d) A permanent injunction doth issue restraining the respondents and their agents from implementing the decision of the 1\* respondent in so far as it affects the decision in HCCS No. 029 of 2024. - e) No damages awarded. - f) No order as to costs.

KAREMANI JAMSON. K

JUDGE

09/05/2025

Co is ruling has been delivered by email on 09/05/2025

KAREMANIJAMSON. K

JUDGE.

09/05/2025