[2024] UGHC 847

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

## **MISCELLANEOUS CAUSE NO. 019 OF 2023**


## **VERSUS**

#### **KABAROLE DISTRICT LOCAL GOVERNMENT ::::::::: RESPONDENT**

## **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **RULING**

This application was filed by way of a Notice of Motion under provisions of Article 41(1) of the Constitution of the Republic of Uganda, sections 5(1) & (2), 6(a) & (b) of the Access to Information Act Cap 95, section 98 of the Civil Procedure Act Cap. 282, and Order 52 Rules 2 & 3 of the Civil Procedure Rules seeking the following orders:

i. A prerogative order of mandamus doth issue against the Chief Administrative Officer, Kabarole District, compelling him to avail information regarding persons with disabilities.

ii. Costs of the application be provided for

## **Background**

The applicants are Persons with Disabilities (PWDs) and residents of Kabarole District. Being dissatisfied with how the respondent is managing the affairs of the PWDs, the applicants, in a letter dated 1st September 2023, wrote to the Chief Administrative Officer of the respondent, requesting various documents, including accountability reports on grants and bursaries, as well as appointment letters of the members of the District Disability Council, among others. The respondent, in response, expressed a willingness to provide the requested documents by 15th October 2023. However, the respondent failed to provide the documents in issue within that timeframe. On the 22nd of December 2023, the applicants filed this application seeking an order compelling the respondent to make the documents available.

## **Grounds for Application**

The grounds for this application are set out in the affidavit of Mugabo Bagambaki Charles, the 1st applicant, the gist of which is that:

- (a)The applicants are PWDs who reside within the Kabarole District. - (b)In 2020, the respondent through its officials appointed one Bagonza Aloho John, a full-time resident of Bunyangabu district to head the district disability council to the detriment of the applicants and other PWDs within the district. - (c) On the 23rd of December 2022, the respondent through its officials or agents swore in and legitimised another disability council with

one Katiisa Paul, an active member of the National Resistance Movement, as a serving chairperson of PWD league Kabarole district.

- (d) In the year 2020, the respondent appointed one Kabaseke Clovice as a member of the District Service Commission representing PWDs with full knowledge that he was an employee of the Mountains of the Moon University, a government institution. - (e) Between 2013 and 2023, the respondent through its officials mishandled grants and bursaries meant for PWDs. - (f) The applicants through their lawyers wrote to the respondent requesting for several accountability documents which to date have not been availed to them. - (g) The architectural designs of the house for PWDs are missing in the archives of the district. - (h)The officials or agents of the respondent authorised the appointment of Kabaseke Clovis to the District Service Commission as the representative of PWDs and Byaruhanga Emmex, as Chairperson of KADIPU, both being residents of Kiko/Ruteete Town Council which is a sign of nepotism and marginalisation of PWDs. - (i) The act of denying the applicants the documents asked for is irrational and an abuse of power.

The respondent filed an affidavit in reply, deponed by Rubaihayo Stephen, the Chief Administrative Officer of the respondent, opposing this application on the following grounds:

(a)The respondent received the applicants' request for the information and documents in issue but has not yet provided the requested information due to the nature of the documents, which require additional time for the secretariat to prepare.

- (b)The respondent has compiled the said documents which are attached to the affidavit in reply. - (c) The appointment of Bagonza Aloho John as the chairperson of the disability council is in accordance with the law. - (d)The appointment of Katiisa Paul as a member of the disability council followed the due processes of the law. - (e) Kabaseke Clovice was appointed as a member of the District Service Commission per the law and his employment with Mountains of the Moon University came after that appointment.

## **Representation and Hearing**

Mr. Twesige Fred Micheal represented the applicants while Mr. Kawalya Ronald represented the respondent. Both Counsel filed written submissions which I will not reproduce herein but have been considered in this ruling.

## **Issues for determination**

In this application, the issues for determination are;

- i. Whether the application raises sufficient grounds for the grant of orders sought. - ii. What remedies are available to the parties?

## **Determination by Court**

On the 27th of May 2024, when the matter came up for hearing, counsel for the applicants informed the Court that the respondent had served him with several documents, which required time for verification before deciding how to proceed with this application. Counsel for the respondent, on the other hand, informed the Court that the respondent had exercised due diligence in making the documents available to the applicants. However, some documents that may be of interest to the applicants may have been lost during the respondent's relocation of its offices from Boma. The respondent reported the matter of the missing documents to Boma Police under Ref 17/17/06/2023.

On the 27th of June 2024, counsel for the applicants informed the court that since the respondent had reported to the police a case of missing documents, he was unable to proceed with the application but made a prayer to the court to determine the issue of the costs of this application.

I note that the respondent has provided some of the requested documents to the applicants, and certain documents are now part of the court record. The respondent asserts that it has furnished all documents within its custody, and any documents of interest to the applicants that were not provided may be among those reported missing. A case regarding the missing documents was filed with Boma Police under Ref 17/17/06/2023. Counsel for the applicants has requested that, in light of these circumstances, the Court should address the issue of costs, as the applicants have incurred expenses in their request for the documents and in pursuing this application.

In the premises, I find this application to be moot, given that the circumstances upon which it was filed have changed. I, therefore, see no reason why I should waste this court's precious time to determine the issues raised.

I will instead proceed to determine the issue of costs as prayed for by counsel for the applicants.

It is trite law that costs follow event unless the court orders otherwise (see section 27 of the Civil Procedure Act). It is also trite that a successful party can only be denied costs if it is proved that but for his conduct the action would not have been brought.

In the case of *Impressa Infortunato Federice v. Irene Nabwire (Suing By her next Friend Dr. Julius Wambette SCCA No. 03 of 2000*, Order, JSC, as he then was, held that:

> *"In my view, the effect of the provisions of section 27 in question of the Civil Procedure Act is that the judge or court dealing with the issue of costs in any suit, action, cause or matter has absolute discretion to determine by whom and to what extent such costs are to be paid. Of course, like all judicial discretions, the discretion on costs must be exercised judiciously. How a court or a judge exercises such discretion depends on the facts of each case…The factors which determine the exercise of discretion in favour of one party and against another in a case do not necessarily apply to any other case. If there were mathematical formula, it would no longer be discretion."*

In the case of *Kivumbi Paul v. Namugenyi Zulah Civil Revision No. 10 of 2014*, Hon Lady Justice Elizabeth Musoke (as she then was) citing *Kiska Ltd Vs De Angelias [1969] EA 6*, noted that:

# *"A successful party can only be deprived of his costs when it is shown that his conduct either prior to or during the course of the suit has led to litigation, which, but for his own conduct might have been averted."*

In the instant case, although there was a significant delay by the respondent in providing the requested documents to the applicants, the respondent demonstrated a willingness to furnish the requested documents, right from the time it was notified through the notice of intention to sue. This willingness is evidenced by the letter dated 12th September 2023, as well as the submissions on record by counsel for the respondent and L. C. V. Chairperson of Kabarole district, indicating the respondent's interest in resolving the matter amicably.

Article 126(2)(e) of the 1995 Constitution of the Republic of Uganda enjoins this court to promote reconciliation between the parties in the adjudication of cases, subject to the law. In the spirit of promoting reconciliation between the parties, I hereby exercise my discretion and award no costs to any of the parties.

Resultantly, this application is hereby dismissed with no order as to costs.

It is so ordered.

Dated at Fort Portal this 29th day of August 2024.

\_\_\_\_\_\_

**Vincent Emmy Mugabo Judge**