[2025] UGHC 41

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE MISC. CAUSE NO. 13 OF 2024

1. NDOBOLI DAN

2. MULIWANI DANIEL ::::::::::::::::::::::::::::::::::::

#### VERSUS

# KIBUKU DISTRICT LOCAL GOVERNMENT::::::::::::::::::::::::::::::::::: **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

## **RULING**

#### 1. Introduction

- 2. This application was brought by way of notice of motion under then section 33, now 37 of the Judicature Act, section 98 of the Civil Procedure Act, Rules 3(1), (2), 6(1) and 8 of the Judicature (Judicial Review) Rules, 2009 and Rule 5 of the Judicature (Judicial Review) (Amendment) Rules, 2019, for prayers that - a. An order of prohibition restraining the Respondent and all its agents from circulating the external advert, receiving applications and subsequently hiring of personale basing on the same; - b. An order of mandamus compelling the Respondent or its agents to consider the Applicants for the positions through an internal advert, and - c. Costs of the application be granted. - 3. This application is supported by the affidavits in support and in rejoinder of the 1^st Applicant which have been considered in the determination of this application but briefly state that - a. He has authority from the $2^{nd}$ Applicant to swear this affidavit in that capacity; - b. He has been an employee of the Respondent for about 10 years and have from time to time held different acting positions like Town Agents, Acting Senior Assistant Secretary among others;

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- c. By a letter referenced as PMD 9/414/01 and dated 16/05/2022 addressed to the Respondent, the Permanent Secretary of the Ministry of Public Service of Uganda recommended/directed that the Respondents and others be submitted to the District Service Commission to assess their suitability for accelerated promotion; - d. The above submission was to be made on condition that the Respondent had no qualified personal for the respective positions; - e. Some of their colleagues were submitted and accordingly promoted to the post of Senior Assistant Secretary as advised by the Permanent Secretary; - f. However, to their dismay, they were denied such an opportunity for accelerated promotion and no valid reason was given to them and no qualified personale is available and yet they are qualified in for those respective positions given their tenure of work; - g. There were only two vacancies and they were three people who had been acting and they were all told to wait to be promoted later, although they were all qualified; - h. The Respondent went ahead and made external advertisements calling the public to apply for the same post of Senior Assistant Secretary; - i. The external advent was to serve the interests of politicians in the Respondent's different offices to bring in other people for posts not them who had acted for long; - j. Such acts of the Respondent demoralize the hard-working employees and hence ought to be corrected by this court; - k. They have been in acting capacity for long, since 2017; - 1. The public service ministry on several occasions has written to the Respondent replying its letters on request to promote us from post of parish chiefs to Senior Assistant Secretary/Sub-County Chief; - m. The District service commission follows guidance from ministry of public service;

$\mathcal{L}^{\mathcal{A}}$

- n. Despite their efforts to the Respondent, to reconsider and prioritize them over the public and align with the guidance/directive of the Permanent Secretary have been in vain. - 4. This application was opposed by the affidavit in reply of **SAMUEL RUHWEZA** KAIJA, the Chief Administrative Officer of the Respondent which has been considered in the determination of this application and briefly states - a. The 1^st Applicant was only assigned duties in relation to the different positions; - b. Persons who attended interviews and qualified were duly promoted; - c. The Applicants were never denied an opportunity for accelerated promotion as alleged; - d. The District Service Commission opted for external advert which was opened to everyone including the Applicants for purposes of competition in the recruitment process; - e. Appointment and/or promotions is a preserve of the District Service Commission that is not subject to directives from anybody or authority and has the mandate to determine the conduct and or process of the recruitment process. - 5. Legal representation - 6. Counsel Topachu Juliet appeared the Respondent while M/s Spencer Associated Advocates represented the Applicants.

### 7. Submissions

8. At the hearing of this application, schedules within which to file written submissions were given and both counsel complied and they have been considered in the determination of this application.

### 9. Determination of court

and the grant of

- Before I proceed to the determination of the merits of this application, I $10.$ have observed that the 1^st Applicant did not have written authority to swear the affidavit in support on behalf of the $2^{nd}$ Applicant. - Order 1 rule 12 (1) of the Civil Procedure Rules SI 71-1 provides-11. - 3 | Page

"Where there are more plaintiffs than one, any one or more of them may be authorised by any other of them to appear, plead or act for that other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorised by any other of them to appear, plead or act for that other *in any proceeding.*"

Order 1 rule 12 (2) of the Civil Procedure Rules provides-12.

> "The *authority shall be in writing signed* by the party giving it and shall be filed in the case."

The Court of Appeal of Tanzania in Absa Bank Tanzania Limited and 13. Joseph John Nanyaro Vs Hjordis Fammestad Civil Application No. 695/16 of 2022 at page held-

> "I do not think there is any problem for one or more applicants to swear their affidavits on behalf of their fellows, when duly and *properly authorized.....*"

- 14. In view of order 1 rule 12 and that swaying authority, it is patent that $\frac{1}{2}$ authority to act on behalf of another party should be clear, in writing and signed by the party giving authority. - The 1^st Applicant at paragraph 1 of his affidavit in rejoinder attached 15. **annexure A** which is a copy of written authority from the $2^{nd}$ Respondent. - It is dated and signed by the Applicants on 18^th December 2024, yet the 16. impugned affidavit in support was sworn on 1^st May 2024 and lodged in the registry of this court on $2^{nd}$ May 2024. - This obviously means that the 2^nd Applicant gave his authority after the 17. application and the affidavit in support had already been filed. It is therefore, finding of this court that the 1^st Applicant did not have authority to swear the affidavit in support on behalf of the Applicant. - In wrapping, am inclined to find that the $2^{nd}$ Applicant is not fit to be party 18. to this application having not properly given his consent/authority to the 1^st

Applicant to depone on his behalf. There is also nothing on record to show that the $2^{nd}$ Applicant has even ever shown interest in this matter.

- The $2^{nd}$ Respondent is accordingly struck off this application. 19. - This court framed two issues in determination of this application, to wit; 20. - a. Whether this application raises grounds for judicial review? - b. *What remedies are available to the parties?* - Issue 1: Whether this application raises any grounds for judicial 21. review? - Submissions by counsel for the Applicant 22. - Counsel for the Applicant submitted that the Respondent acted ultra vires 23. since the Respondent initiated the process and recommended the Applicants for the position but later ignored the Ministry's directive after the waiver was granted, rendering its actions unlawful. - Counsel added that the Respondent's decision to advertise externally after 24. securing a waiver specifically for the Applicants is grossly irrational since they were eligible and qualified and the Ministry's directive required the Respondent to assess the Applicants' suitability, not to restart recruitment which violated procedural fairness.

#### Submissions by counsel for the Respondent 25.

- Counsel submitted that the letter dated 16^th May 2022, the Permanent $26.$ Secretary-Ministry of Public Service wrote to the Respondent's Chief Administrative Officer, guiding him to submit the 1^st Applicant and a one Deogratias Nyende to the District Service Commission to assess their suitability for accelerated promotion. - Counsel added that the Permanent Secretary also noted that the power to 27. appoint persons to hold or act in any office in the service of a district is vested in the District Service Commission and that the waiver is given on condition that there are no other eligible and qualified candidates for the position.

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#### **Analysis of court** 28.

According to Section 37 of the judicature Act, Cap. 16, it provides that-29. "The high court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as nay of the parties to a cause or matter is entitled to in respect of nay legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings *concerning any of those matters avoided."*

$30.$ Rule 7A (2) of the Judicature (Judicial Review) (Amendment) Rules, 2019 SI 32 of 2019, provides-

> "The court shall grant an order for judicial review where it is satisfied that the decision making body or officer did not follow due process in reaching a decision and that, as a result, there was unfair and unjust treatment".

31. In Pastoli Vs Kabale District Local Government Council and Others [2008] 2 EA 300 it was held that-

> "In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.

> Illegality is when the decision making authority commits an error of *law in the process of taking or making the act.*

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

> *Procedural impropriety is when there is a failure to act fairly on the* part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the rules of natural justice or to act with procedural fairness towards one to be affected by the decision."

Am swayed by the decision of my brother judge Justice Stephen Mubiru 32. in Eberuku Pius Vs Moyo District Local Government Miscellaneous Application No. 0005 of 2016, where he held that-

> "In determining whether administrative action is justifiable in terms of the reasons given for it, value judgments will have to be made which will, almost inevitably, involve the consideration of the 'merits' of the matter in some way or another. As long as the Judge determining this issue is aware that he or she enters the merits not in order to substitute his or her own opinion on the correctness thereof, but to determine whether the outcome is rationally justifiable, the *process will be in order."*

- 33. The Applicant in paragraphs 2, 3 and 7 of the affidavit in support attached copies of his employment record, copy of letter from the Permanent Secretary Ministry of Public Service and copy of the external advert as annexure A, B and C collectively. - 34. Further, the Applicant in paragraphs 5, 6 and 7 of the affidavit in rejoinder attached a copy of his assignment letter, copies of his academic documents and letter from the Respondent to Ministry of Public Service requesting for waiver of his promotion, as annexure B, C and D collectively. - Article 200 (1) of the Constitution of the Republic of Uganda, 1995 35. provides-

"Subject to the provisions of this Constitution, the power to appoint persons to hold or act in any office in the service of a district, including the power to confirm appointments, to exercise disciplinary control over persons holding or acting in any such office and to remove those persons from office, is vested in the district service commission." This is mutatis mutandis of section 60 (1) of Local Governments Act, Cap

138 and paragraph 9 section (A-a) of the Uganda Public Service **Standing Orders**

36.

"Notwithstanding subsection (1), the appointment and control of Chief *Administrative Officers, Deputy/Assistant Administrative Officers* and Town Clerks of cities and municipalities shall be effected by the Public Service Commission in accordance with Article 200 of the *Constitution.*" See paragraph 9 (d) section (A–a) of the Uganda Public Service Standing Orders

37. Section 60 (10) of the Local Governments Act (supra) provides-

Section 60 (2) of the Local Governments Act (supra) provides-

"In the performance of its functions a district service commission shall conform to the standards established by the Public Service Commission for the public service generally." See paragraph 11 section (A–c) of the Uganda Public Service Standing Orders

Section 64 (3) of the Local Governments Act (supra) provides-38.

> "The district service commission may make regulations governing the" procedure for its meetings and for the effective and efficient performance of its functions under this Act, the Constitution or any other law."

- In guidance of the above, the Respondent has mandate to regulate its own 39. procedure in appointing officers other than principal officers to district service in accordance with the Constitution and general public service directions. - **Annexure C** to the affidavit in support, clearly shows that the $\mathbf{C}$ 40. Respondent's external advert had specific requirements that the Applicant had to possess in order to qualify for the said position. It states-

## "Person Specifications:

## a) Academic Qualifications

A Bachelor's Degree in Arts, Social Sciences, Development Studies Social Work and Social Administration or Arts or **Business Administration Business studies (Management option)** or Bachelor of Management Sciences, from a recognized University.

A certificate in Administrative Officer's Law from a recognized institution.

Diploma in Public Administration, Post Graduate $\boldsymbol{A}$ Management, Development, Administration or a related field from a reorganized awarding institution.

b) Experience:

At least three (3) years of working experience at Assistant Secretary Level or equivalent level of experience in administration gained in government or from a reputable organization."

#### 41. On academic qualifications

- 42. The Applicant attached his certificate in Administrative Officer's Law from Law Development Centre dated $17^th$ August 2015 as annexure C to the affidavit in rejoinder. This is the only academic document of the Applicant on record. - Therefore, at least from the evidence laid before this court, there is no 43. satisfactory information that the Applicant presented to the commission with the requisite academic qualification documents for the advertised job.

#### 44. On working experience

- 45. On inspection of the data collectively marked as **annexure** $A$ to the affidavit in support, it is visible in a letter from the Respondent to the Applicant dated 25^th July 2019, that the Applicant was only granted duties of care-taking the office of the Senior Assistant Secretary for Kasasira Subcounty. - On investigating another document in the same annexure, it is manifest 46. in a letter from the Respondent to the Applicant dated 3^rd December 2021, that the Applicant was later assigned duties of Senior Assistant Town Clerk for Kasasira Town Council and was directed to continue performing his duties

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in capacity of Town Agent and the terms and conditions of service were also to remain the same.

- 47. In literal interpretation of both the said letters, the Applicant was appointed to those respective positions in acting capacity. - Order 9 section (A-c) of the Uganda Public Service Standing Orders 48. provides-

"An *appointment on acting basis is expected to last for not more than* six months, and is subject to direction by the Appointing Authority. *Any period of acting appointment beyond six months will be null and void* and the public officer holding such an appointment *shall* automatically revert to his or her substantive post, unless the Appointing Authority extends the appointment for another period of six months, but shall not exceed 12 months in total. This arrangement *will only apply when a Statutory Office is temporarily vacated.*"

- 49. There is nothing on court record to indicate that the said instructions were ever extended after the 6 months by the Respondent as required by law which imputes that the said appointments automatically lapsed after 6 months of each appointment. - $50.$ Therefore, the Applicant had not attained the required working experience of three years for the said job by May 2024 since his last appointment lapsed 6 months from 3^rd December 2021. This explains the reason why the Applicant pressed for a waiver from the Public Service Ministry. - 51. **Annexure B** to the affidavit in support includes a letter from the Respondent to the Permanent Secretary of Ministry of Public Service dated 16^th December 2021 requesting for a waiver in respect of the Applicant. - 52. Article 166 (1) (d) of the Constitution of the Republic of Uganda provides-"Except as otherwise provided in this Constitution, the functions of the Public Service Commission include-

*to guide and coordinate district service commissions.*" See section 7(d) of the Public Service Commission Act, Cap 92

Section 64 (1) of the Local Governments Act (supra) provides-53.

> "Subject to article 166(1)(d) of the Constitution, the district service commission shall be independent and shall not be subject to the direction or control of any person or authority."

- In sight of those provisions, the Respondent though independent, as 54. exception to the general rule, must seek and abide by the guidance of the Public Service Commission. - **Annexure B** to the affidavit in support, also includes a letter from the 55. Permanent Secretary of Ministry of Public Service to the Respondent dated 16^th May 2022 in response to the request for waiver for the Applicant, it states-

"The provisions of Section A-g, paragraph 5 of the Uganda Public Service Standing Orders 2021 and the three years' experience at Officer level, scale U4 are waived in the Officers' case.

This waiver is given on condition that the District has no other eligible and qualified candidates for the position."

- The said letter clearly waives only the requirement for external 56. advert/publication and the 3 years working experience but did not waive the requirement for academic qualification and it was only on condition that the district had no other eligible and qualified candidates. - 57. The Respondent averred that they opted for external advert which was opened to everyone including the Applicant for purposes of competition in the recruitment process and that persons who attended interviews and qualified were duly promoted. - As already noted, actions of the Respondent must be constitutional which 58. requires that the right to equality and non-discrimination in all spheres of life as guaranteed by Article 21 of the Constitution must be observed which could

be the reason the said waiver was on condition that the district had no any other eligible and qualified candidates and/or why the Respondent opted for an external advert.

- In final result, am inclined to believe that the Applicant was left out of the 59. said recruitment process because of failure to produce the required academic documents and therefore the Respondent followed the due process in conducting the impugned recruitment process. - б0. Issue 1 is accordingly answered in the negative.

#### 61. Issue 2: What remedies are available to the parties?

62. Having answered issue 1 in the negative, this application fails and is hereby dismissed with costs to the Respondent.

I so order

# **LUBEGA FAROUQ**

### Ag. JUDGE

*Judgment delivered via emails of the advocates of the parties this* 10^th *February* 2025