Administrative Law Ii-1

ADMINISTRATIVE LAW II
JUDICIAL REVIEW
Judicial review is a process by which the High Court exercises supervisory jurisdiction over the
proceedings and decisions of inferior courts or tribunals or other bodies or persons who carry out
quasi-judicial functions or who are charged with the performance of certain public acts and duties.
According to rule 3 of Judicature (Judicial Review) (amendment) Rules 2019, which amends
rule 2 of the 2009 rules, judicial review is defined to mean “a process by which the High Court
exercises its 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 the performance of certain public acts and duties.
Judicial review is a process by which courts of law intervene in administrative decisions. This is
done where it is alleged that an administrative decision or action has been made illegally, or a
result following wrong procedures or following a process that reflects abuse of discretionary
powers.
Clear Channel Independent (U) Ltd Versus Public Procurement And Disposal Of Public
Assets Authority.
HELD; Judicial Review is the process by which the High Court exercises its supervisory
jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or
persons who carry out quasi-judicial functions, or who are engaged in the performance of public
acts and duties. Those functions/duties/acts may affect the rights or liberties of the citizens. Judicial
review is a matter within the ambit of Administrative Law.
Judicial Review is contrasted from other legal processes. A complainant who is aggrieved against
a decision of an administrative official has many options including the following options for
redress.
a) Administrative Tribunals
 A complainant may file his/her case before an administrative tribunal if there is a law
providing for grievances of that nature to be filed in a tribunal. Tribunals are established
by Acts of Parliament. They are given jurisdiction of our particular matter e.g. The Tax
Appeal Tribunal is established by the Tax Appeals Tribunal Act and it is given powers of
resolving tax disputes between the tax payer and Uganda Revenue Authority. Recently,
however, the Supreme Court has indicated that jurisdiction for tax matters ought to be
limited to the tax appeals tribunal
LOVE OUGHT TO BE MANIFESTED MORE IN DEEDS THAN WORDS; IGNATIUS OF LOYOLA @AMDG
Uganda Revenue Authority v Rabbo Enterprises (U) Ltd, the Supreme Court ruled that the Tax
Appeals Tribunal (TAT) has original jurisdiction to hear tax disputes, and the High Court only has
appellate jurisdiction. Until now, the long-established position was that the High Court and the
TAT had concurrent jurisdiction and a litigant had discretion to lodge an application with the TAT
or file the dispute in the High Court.(as per the constitutional Court in URA v Meera Investments).
Court emphasized that it is a trite principle of law that the jurisdiction of a court must be found in
Statute.
In the case of Another example is the Industrial Court which is established by the The Labour
Disputes (Arbitration & Settlement) Act No. 8 of 2006 to handle disputes between employers
and employees on matters relating to employment. It therefore covers matters relating to terms and
conditions of service and other aspects covered in the employment laws. The powers and
procedures of each tribunal is ascertainable from the enabling law of a particular tribunal.
b) Appeals
A person aggrieved by a decision of an administrative tribunal may also make an appeal against
that decision. An appeal is a request made to a higher authority seeking a reversal of an earlier
decision. Appeals can only be instituted in the following circumstances.
i) Where there is a law providing for the right of appeal. There is no general right of appeal against
administrative decisions. Appeals are creatures of statutes. An aggrieved party can only institute
an appeal if there is a statutory provision putting in place that right of appeal. In Karimari Corner
Bar and Restaurant Vs Embu Liquor Licencing Court (1967) EA 426, the appellant 2 was
denied a new liquor licence. He lodged an appeal against that decision. The relevant law did not
provide for a general right of appeal against all decisions of the licencing authority. In the relevant
statute, appeals could only be lodged against decisions to renew or transfer a licence. The appeal
therefore failed on grounds that there was no right of appeal.
ii) Where the aggrieved party seeks a reversal of an earlier decision. Appeals normally seek a
reversal of decision which is already made. There is no appeal where the decision is not yet made.
There is nothing to reverse.
iii) Appeals can lead to a reconsideration of the merits of a particular decision. In the case of Kenya
Aluminum Vs Minister of Agriculture, the judge said that: Where a right of appeal is entirely
unrestricted, it is open to the court to hear all the evidence that has been adduced and substituted
its decision thereon for that of an administrative agency.
In this respect, an appellant court or tribunal can also try the case as if it was the court or tribunal
of the first instance. Appeals are therefore for reconsideration the merits and not purely on
procedural issues.
iv) Where the appellant falls within the specified grounds for appeal. The law providing the
grounds of appeal also sets out the grounds on which the appeal may be based. Appeals may be on
grounds of interpretation of law or on grounds of facts. An aggrieved party cannot lodge an appeal
unless he/she falls within the specified grounds.
c) Legal Suits
the aggrieved party can also file a legal suit in the competent court with jurisdiction.
JUDICIAL REVIEW
Persons aggrieved by decisions of administrative authorities may apply for judicial review.
Judicial review can be justified on the provisions of Art 42 of the Constitution which 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”.
Furthermore, Art 28 of the Constitution provides that:
“In 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”.
The powers of judicial review are also contained in the S. 36 of the Judicature Act which provides
that the High Court shall have powers of review and shall have powers to grant prerogative
remedies of certiorari, mandamus and prohibition.
Who can apply;
 Rule 3A of the Rules as amended in 2019 provides that any person who has a direct or
sufficient interest in a matter may apply for judicial review
OCHIENG PETER &ORS V PRESIDENT GENERAL OF DP &ORS

The applicants challenged the procedure for the election of Mathias Nsubuga as Secretary General
of DP contending that it contravened several articles of the DP constitution since there was no
formal communication to the members of the NEC, also the meeting was headed by the President
General instead of the Party Chairman and the meeting was attended by members who were not
members of the council and not authorized to participate. The applicants applied for Judicial
Review for orders of Certiorari, prohibition and mandamus.
HELD
There is no requirement under sections 33,36, 37 and 38 of the Judicature Act that prerogative
orders shall only issue against public bodies and offices that have corporate status. Persons natural
or artificial bound to explain and defend in any forum the decisions they take in the performance
of their duties are amenable to Judicial review, as long as it is established that they acted without
or in excess of jurisdiction, or where there is an error of law on the face of the record or failure to
comply with the rules of natural justice.
The meetings were not legally held or convened and consequently the election of Mathias Nsubuga
as Secretary General of DP was in violation of the party’s constitution.
The application met the requirements stipulated in the law for judicial review. The orders of
certiorari, prohibition and mandamus were granted quashing the decision of the National Council
of DP, prohibiting the confirmation of Mathias Nsubuga as secretary General of DP and
compelling the respondents to implement and follow the party’s constitution when electing the
Secretary General.
Judicial Review is applicable in the following situations:

i) Where the aggrieved party has exhausted the local remedies
S.36 (4) of the Judicature Act provides that the prerogative remedies of certiorari and prohibition
shall not be granted to a complainant unless such a party had exhausted the available local
remedies. This means that where the law provides for appeals, the appeals processes must be
completed before a party becomes eligible for judicial review. Similarly, where a tribunal is
established to solve a particular dispute, the courts are not expected to hear those disputes except
where parallel jurisdiction is justified e.g. the case of Rabo Enterprises (U) Ltd Vs
Commissioner General of URA (2003).
According to S. 36 (2), the High Court will not embark on the review process if the outcome is
likely to render its orders unnecessary because the case has been decided elsewhere. It is the
responsibility of the courts to handle disputes that cannot be settled out of court. Avoiding other
non litigation processes may also be interpreted on as abuse of court process. It may be an issue to
be considered during the taxation of costs.
Dr. Wenceslaus Rama Makuza v Civil Aviation Authority & Anor (MISCELLANEOUS
CAUSE No. 205 OF 2017) [2017]
This is an application for Judicial Review challenging the decision by the Minister of Works
and Transport terminating the contract of service of the applicant as the Managing Director of
the 1st respondent as illegal, ultravires, null and void. The 2nd respondent’s counsel also raised
a preliminary objection on whether this is a proper case for Judicial Review. He submits that
the circumstances of this application indicate that this is an employment dispute making it not
amenable to Judicial Review.
Held; hat this matter does not fall under the ambit of Judicial Review. The applicant has
essentially presented an employment dispute and the claim is of the character of an
employment suit. The grounds raised by the applicant are essentially for alleged breach of an
employment contract and the remedies sought are essentially remedies for alleged breach of
contract and/or determination of rights under an employment contract.
This matter does not fall under the ambit of Judicial Review because what the applicant is seeking
requires to be proved by evidence. The applicant ought to have brought this matter under the
Employment Act and by ordinary plaint. The concern for Judicial Review is only the decision
making process in administration. It is a remedy of last resort. Where alternative remedies exist,
the court has to be satisfied that Judicial Review is more convenient, beneficial and an efficacious
remedy available. Application struck out
ii) Grounds for Judicial Review
Factors to be considered by Court before granting the application.
Rule 7A of the Judicial Review Rules as amended in 2019 provides that;
1. The court shall in considering an application for judicial review satisfy itself of the
following.
(a) That the application is amenable for judicial review
(b) That the aggrieved person has exhausted the existing remedies available within the
public body or under the law and
(c) That the matter involves an administrative body or official.
2. 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.
An applicant for judicial review can only succeed where it is proved that the case falls within the
specified rounds for judicial review. In the case of CSSU Vs Minister of Public Service, the
grounds for judicial review as follows:
a) Illegally (substantive ultra vires) or
b) Procedural impropriety (procedural ultra vires)
c) Irrationality (Abuse of discretionary powers)
His Worship Aggrey Bwire v Attorney General
Held; It is trite that judicial review can only be granted on three grounds namely: Illegality;
irrationality and procedural impropriety – The first two grounds are known as substantive
grounds of judicial review because they relate to the substance of the disputed decision.
Procedural impropriety is a procedural ground because it aims at the decision – making
procedure rather than the content of the decision itself.
Rosemary Nalwadda v. Uganda Aids Commission HCMA No. 0045 of 2010 it was held that it
is trite that judicial review can be granted on three grounds namely; illegality, irrationality and
procedural impropriety.
Twinomuhagi Pastoli vs. Kabale District Local Government Council and 2 Others [2006]
HCB VI. It was held that in order to succeed in an application for judicial review, the applicant
must show that the decision on which the act complained of is tainted with illegality, irrationality
and procedural impropriety.
 Illegality means that the decision making body commits an error of law in the process of
taking its decision. These instances include acting without jurisdiction, acting ultra vires,
acting contrary to the provisions of any law or principles that are settled. Eg if a body
terminates employment of a person or a contract, yet it does not have the mandate to do so.
Assets Authority
The applicant submitted a bid to the Civil Aviation Authority for the tender of the Management of
Advertisement at Entebbe International Airport following a request for bids by the said Civil
Aviation Authority. It is the applicant’s case that its bid was unjustly and unreasonably rejected by
the said Civil Aviation Authority and the tender was awarded to M/s Alliance Media Ltd.
upon the Civil Aviation Authority (‘the CAA’) rejecting its tender bid. The applicant then applied
to the respondent for Administrative Review of the said decision as by law established. The
respondent in its review process found that the tender process had been marred by several
irregularities and omissions contrary to the PPDA Act and Regulations. Despite these findings,
however, it (the respondent) allowed the tender process to continue. The Applicant then applied to
the High Court for judicial review and orders of certiorari and prohibition.
Whether or not the respondent erred in law when it allowed the tender process to proceed despite
having found irregularities in the tender process
HELD
The principle, so far as it affects the present case, is that if a statute prescribes, or statutory rules
or regulations binding on a domestic tribunal prescribe, the procedure to be followed, that
procedure must be observed. It is trite that when an administrative body does something, which it
has in law no capacity to do or does it without following the proper order, it is said to have acted
illegally. This will be a ground for applying for orders of Certiorari, mandamus or prohibition
because such an act is beyond powers and hence ultravires
That since the respondent found CAA’s award illegal on account of non-compliance with the
provisions of PPDA Act, the respondent’s decision in allowing CAA to continue with the
procurement process was also illegal null and void. As such Court allowed the application for
judicial review, granted the orders of certiorari and prohibition sought and ordered a repeat of the
tender process.
 Irrationality means that there is such unreasonableness in the decision taken that no
reasonable authority addressing itself to the fact and to the law would make such a decision.
In other words that decision is outrageous and defies logic and therefore cannot be allowed
to stand.
In Associated Provincial Picture Houses Vs Wednasbury Corporation court held that

public authority must act reasonably and must take into account relevant considerations.
According to Lord Greene, an unreasonable decision is one that no reasonable body could have
come to . it is not what court considers reasonable.
 Procedural impropriety refers to failure to act fairly in making the decision as for example
by not following or observing rules of natural justice or being procedurally unfair to one
of the parties. This may include failing to accord adequate time, failing to notify about an
issue complained about, failing to observe statutory rules in the exercise of the authority.
Pastoli Twinomuhangi Vs Kabale District Local Government (supra)
Held; “Procedural impropriety” includes failure to adhere to procedural rules expressly laid
down in a statute or legislative instrument by which such authority exercises jurisdiction to
make a decision”.
Ridge Vs Baldwin [1964] AC 40, HELD “a decision reached by an administrative body in

disregard of the principles of fair hearing or natural justice is null and void”
iii) Where the complaint is about Process
 Judicial review will confine itself to the assessment of the manner in which the decision
was made. This is to ensure that public powers are exercised on the basis of legality,
fairness, rationality and procedural propriety.
An applicant for judicial review must be raising complaints about how a particular decision was
arrived at. This therefore involves questioning the process leading to the decision. Judicial Review
does not lead to examination of the correctness or the merits of a particular decision. It leads to
examination whether the process leading to a decision is what ought to have been in motion. The
process leading to a decision includes the following:
a) Jurisdictional issues – Has the decision been made by the relevant authority?
b) Procedural matters – Has the relevant authority followed the established procedures for
making a particular decision?
c) Abuse of powers – Are their aspects of abuse of power in course of making a decision?
d) Principles of Natural Justice – Has the relevant authority applied the principles of natural
justice?
e) Evidence – Is there evidence to lead to a particular conclusion?
f) Reasons – Has the relevant authority given reasons for a particular decision?
g) Errors on record – Are there apparent errors that affect the authenticity of a decision?
Koluo Joseph Andres & 2 Ors Vs Attorney General Misc. Cause No. 106 of 2010 HELD that:
“It is trite law that Judicial Review is not concerned with the decision in issue per se but with
the decision making process. Essentially Judicial Review involves the assessment of the manner
in which the 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.
iv) Nature of Remedies to be obtained

 Judicial review covers a series of prerogative orders obtainable from the High Court
because it has unlimited original jurisdiction and wide powers to grant a variety of
remedies. These orders are discretionary and although judicial review can result in
reversing of a decision, it is not an appeal.
 Originally, in England these orders were only available to and used for benefit of the Crown
against ordinary people. However, through their systematic application, the Crown to make
public authorities and inferior tribunals do the bidding of the ground. This kept these
inferior bodies within the proper exercise of authority.
 This confinement resulted in efficiency, uniformity and order in the public administration
and judicial systems. Eventually, they became available to the common man.
 In Uganda the constitution contains a number of rights and this has made judicial review
an appropriate remedy.
 Judicial review is thus concerned with prerogative orders which are essentially remedies
for the control of the exercise of power by those in public office. These remedies are not
intended for final determination of private rights as maybe the case in ordinary civil suit.
According to S. 36 of the Judicature Act, the prerogative remedies of mandamus, certiorari and
prohibition can only be obtained from the High Court. These public law remedies can only be
obtained through a process of judicial review. Hence a party seeking any of these remedies has no
option but to apply for judicial review. Other remedies like damages, injunctions and declarations
may be obtained from ordinary courts without following the process of judicial review.
The remedies are discretionally;
John Jet Tumwebaze V Makerere University Council and 3 Others Civil Application No. 353
of 2005
“The orders be they for declaration, mandamus, certiorari or prohibition are discretionary in
nature. In exercising its discretion with respect to prerogative orders, the court must act
judicially and according to settled principles. Such principles may include common sense and
justice. Whether the applicant is meritorious, whether there is reasonableness, vagilance and
not any waiver of the rights by the applicant.”.
Balondemu David v LDC

The principles governing Judicial Review are well settled. Judicial Review is concerned with
Prerogative Orders which are basically remedies for the control of the exercise of power by those
in public offices. They are not aimed at providing final determination of private rights which is
done in normal civil suits. The said orders are discretionary in nature and court is at liberty to
refuse to grant any of them if it thinks fit to do so even depending on the circumstances of the case
where there had been clear violation of the principle of natural justice; John Jet Mwebaze Vs
Makerere University Council & 2 others Misc. Cause No. 353 of 2005.
 The discretion has to be exercised judicially but it follows a line of settled principles. That
discretion must also be based on common sense and justice.
Moses Ssemanda Kazibwe Vs James Ssenyondo Misc Application No. 108 of 2004.
Held; The discretion has to be exercised judicially and according to settled principles. It has to be
based on common sense as well as justice.
John Jet Tumwebaze V Makerere University Council and 3 Others Civil Application No. 353
of 2005
In exercising its discretion with respect to prerogative orders, the court must act judicially and
according to settled principles. Such principles may include; Common sense and justice, Whether
the application is meritorious, Whether there is reasonableness Vigilance and not any waiver of
rights by the Applicant
 The prerogative remedies granted by court are certiorari, mandamus, prohibition,

declarations, injunctions and habeas corpus.
Prerogative Remedies
The prerogative remedies granted by court are certiorari, mandamus, prohibition, declarations,
injunctions.
These are defined under Rule 2 as amended in 2019.
a declaration is defined as
“…a pronouncement by court, on the legal position of a party after considering the evidence and
applying the law and that evidence to an existing legal situation.
“…certiorari means an order by court to quash a decision which is utra vires
prohibition means an order issued by Court to“forbid some act or decision which would be utra
vires…”
“mandamus means a court order issued to compel performance public officers of statutory duties
imposed on them.
Twinamatsiko Elly V Makerere University
Held;
The high Court derives the power to grant prerogative orders from Section 36(1) of the Judicature
Act Cap 13. Order 46A of the Civil Procedure Rules regulates the procedure for the application
for Judicial Review
Prerogative orders are remedies for the control of the exercise of powers by those in public offices,
and the remedy is available to give relief where a private person is challenging the conduct of a
public authority or public body, or any one, acting in the exercise of a public duty. The orders,
which may be for declaration, mandamus, certiorari or prohibition are discretionary in nature,
and in exercising its discretion, the court must act judicially and according to settled principles.
Such principles may include common sense and justice, whether the application is meritorious,
whether there is reasonableness, vigilance and not any waiver of rights by the applicant. See John
Jet Tumwebaze Vs Makerere University Council and 3 others - Civil Application 353 of 2005
On Mandamus:
“an order of mandamus will compel the performance of a public duty which is imposed
on a person or body of persons by statute and where that person or body of persons has
failed to perform the duty to the detriment of a party who has a legal right to expect the
duty to be performed”.
On Certiorari:
“Only an order of certiorari can quash a decision already made an order of certiorari will issue
if the decision is made without or in excess of jurisdiction, or where the rules of natural justice
are not complied with, or such like reasons”.
On Prohibition:
“It is an order from the High Court directed to an inferior tribunal or body which forbids
that tribunal or body to continue proceedings therein in excess of its jurisdiction or in
contravention of the laws of the land. It lies, not only for the excess of jurisdiction or
absence of it, but also for a departure from the rules of natural justice. It does not,
however, lie to correct the course, practice or procedure of an inferior tribunal, or a
wrong decision on the merits of the proceeding.
According to the case of John Jet Tumwebaze (supra)

a declaration is defined as
“…a pronouncement by court, after considering the evidence and applying the law to that
evidence, of an existing legal situation. A declaration enables a party to discover what his/her
legal position is, about the matter of the declaration; and thus open a way to the party concerned
to resort to other remedies for giving effect to the declared legal situation…”
“…certiorari issues to quash a decision which is utra vires as vitiated by an error on the face of
the record… certiorari looks to the past
prohibition was held to

“forbid some act or decision which would be utra vires…”
“mandamus… is issued in order to compel performance of a statutory duty. It is used to compel

public officers having responsibilities in public offices and public bodies to perform duties imposed
upon them by an Act of Parliament…”
Purpose
 If the court is satisfied, it will make the appropriate orders. Judicial review lies at the root
of administrative law, administrative acts and its purpose is to ensure that a lawful authority
vested in a body or in a person is not abused by unfairness.
 It is intended to ensure that the machinery of government operates in a lawful manner
 The purpose of Judicial Review was summed up in Lord Hailsham St Marylebone in Chief
Constable of North Wales Police Vs Heavens [1982] Vol. 3 All ER as follows:-
“The purpose of Judicial Review is to ensure that the individual receives fair treatment
not to ensure that the authority after according a fair treatment reaches on a matter it is
authorized or enjoined by law to decide from itself a conclusion which is correct in the
eyes of the court.”
Mukasa Mbidde and Anor v LDC

Held; The purpose of judicial review is to ensure that lawful authority vested in a tribunal or body
of persons is not abused by unfair treatment. That the machinery of government operates in a
lawful and fair manner. See Ridge Vs Boldwin [1964] AC 40
Wakiso Transporters Tour & Travel Ltd v IGG and Ors.
Held; The purpose of judicial review has been well articulated by both counsel. It is not concerned
with the decision in issue perse but with the decision making process. It essentially involves the
assessment of the manner in which the decision is made; it is not an appeal and the jurisdiction is
exercised in supervisory manner, not to vindicate the rights as such but to ensure that public powers
are exercised in accordance with basic standards of legality, fairness and rationality
 Initially, Uganda, judicial review was applied for in two stages; initially it required leave
where court is convinced that there was something to entertain. However, under rules in
2009 Judicature (Judicial review rules) the position changed.
 The substance of the law is in S. 36 of the Judicature Act which provides essentially that
the High Court may on application grant any one or more of the reliefs stated therein;
mandamus, certiorari, prohibition, the other one being an injunction and also declarations.
The High Court can also grant damages but has been reluctant to do so especially as relates
to special damages. Rule 8 of 2009 rules, S. 36(2)
 Judicial review can only be entertained by court where there is a decision to quash. Mere
findings and recommendations are not subject of judicial review.
Wakiso Transporters Tour & Travel Ltd V IGG And Ors.
Held; This case yet again raises the issue as to whether or not these findings, recommendations,
suggestions and observations as opposed to decisions can be a subject of the prerogative orders of
certiorari. In the case of Dott Services Ltd Vs Attorney General And Auditor General (Misc
Cause No. 125 of 2009) (unreported) the Hon. Justice V.F Musoke Kibuka discussed the
distinction and held as follows:-
“Certiorari issues to quash decisions made by a statutory body or by a public officer or an

inferior court or tribunal. It cannot issue against mere findings, recommendations, suggestions
or observations. In the instant application the report of the 2nd respondent against which the
prerogative order is being sought clearly contains no decision that can be quashed by way of
issuance of certiorari...........”
In the instant case court found that there is no decision contained in these recommendations that
merits an order of certiorari to quash the impugned Report. There is no decision to quash.
Application has no merit and dismissed.
Picfare Industries Ltd v Attorney General and Anor
Held; The application would not succeed also as there is no indication in this application that there
is any decision complained of which is tainted with any illegality, irrationality and procedural
impropriety. The under lying principle in order to proceed in an application for Judicial Review is
for the applicant to show that the respondent(s), a public body has taken a decision or done an act
which is tainted with illegality, irrationality and procedural impropriety. There is nothing to show
that the respondents herein have taken any decision nor done any act to show that the Attorney
General will not pay to the applicant the monies owed to them under the consent judgment.
 The courts is mindful when assessing whether the applicant has made out a case these
discretionally orders. Courts are mindful because if under the guise of judicial review, they
were to start issuing orders permanently blocking supervision or investigations in public
offices, it would defeat the very purpose for which the courts themselves have been granted
supervisory powers.
The court will consider among other things.
- Whether the application has merit
- Whether there is reasonableness
- The vigilance or otherwise of the applicant
And any other relevant factor
Balondemu v LDC
HELD; Factors that ought to be considered include; whether the application has merit or whether
there is reasonableness, vigilance without any waiver of the rights of the applicant. Court has to
give consideration to all relevant matter of the cause before arriving at a decision in exercise of its
discretion.
Prayer that the applicant be found to have passed his bar course was rejected as an inappropriate
remedy for judicial review.
Mukasa Mbidde v LDC; an attempt to obtain an injunction to stop LDC from appointing a
committee to investigate the diplomas held by the applicants was rejected.
Simon v Uganda Law Society and Rutt Sebatindira 2013; The attempt to annul an election by
way of judicial review was rejected
 The application for judicial review is by Notice of Motion supported by a valid affidavit,
as provided for by Rule 6(1) of 2009 rules
 Applications for judicial review must be made promptly and in any case within three
months from the time the matter arose. S. 36(7), Rule 5 of the 2009 rules. However, Court
can be moved to extend the time if there is a good reason.
Muwanguzi Mugalu v Uganda Railways Corporation.

Had the applicant got a grievance then, he ought to have applied for Judicial Review within 3
months.
It is provided for under Rule 5(1) of the Judicature (Judicial Review) Rules 2009 that:
“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 made.”
Court found that this application for judicial review was not properly before court for having been
filed out of time without the simple process of seeking leave to do so. The same is struck out but
with no order as to costs.
Picfare Industries Ltd v Attorney General and Anor
According to learned counsel for the respondents, this application is glaringly time barred and it
should be dismissed with costs. From the record, this application was filed on 19 th April 2013
seeking to enforce a consent judgment entered into on 20th May 2011. Learned counsel for the
respondent argues that by filing this application on 19th April 2013 two years after judgment, the
applicant ought to have sought leave to file the application out of time as provided for under Rule
(1) of the Judicature (Judicial Review) Rules 2009. Rule 5(1).
Held; that an application should be filed three months from the time when the grounds of the
application first arose. By filing this application on 30th April 2013 almost one year after the
grounds arose, this application is clearly time barred because the filing was clearly done more than
three months from due date. It was held in Re Mustapha Ramathan for orders of certiorari
prohibition and injunction Civil Appeal 25 of 1996 (CA) that:
“Statutes of limitation are in their nature strict and inflexible enactments. Their overriding
purpose is interest reipublical ut sit finis litum, meaning litigation shall be automatically stifled
after a fixed length of time irrespective of the merits of the particular case.”
The proper procedure should have been for the applicant to apply for extension of time within
which to apply for judicial review under Rule 5(2) of the Judicature (Judicial Review) Rules 2009,
which was not done in this case. This application is incompetent and will be struck out.
IBB International Limited v Civil Aviation Authority & 2 Ors (MISCELLANEOUS CAUSE
NO. 100 OF 2015) [2017]
HELD; From the record the suspension letter of the Applicant’s contract was issued on 7th April
2015 and received by the Applicant on 8th April 2015. The application was filed on 10th July 2015.
Whether I take the date of issue or the date of receipt by the Applicant, the application filed on
10th July was two to three days outside the three-month period stipulated for its filing under Rule
5(1) the Judicature (Judicial Review) Rules. However given it is just a few days, in the interest of
justice under section 98 of the Civil Procedure Act and the substantive justice over technicalities
envisaged under Article 126 of the Constitution, I hereby extend time for filing the application.
This is because to throw out the application at this stage in the circumstances of this case would
be an unnecessary technical injustice.
iv. Doctrine of Ultra Vires – or Illegality or Substantive Ultra Vires

Ultra Vires means acting beyond the powers which are given. It is contrasted from intra vires
which means within the powers given. Public authorities are given specific powers, functions and
responsibilities. They use these powers, functions and responsibilities in order to achieve the
objectives of a particular statute. A typical statute will normally have a section on the objectives
for which it was enacted. The powers, functions and responsibilities are also contained in the
statute.
Ultra vires arises where an authority exercises powers, functions or responsibilities that the law
does not confer on it. It may arise in the following situations:
a) The Subject Matter
Ultra vires may arise where a public authority purports to exercise a power, function or
responsibility that the law does not grant. In the case of Re Abdalla Ali, the Principal Immigration
Officer served the applicant with a deportation order. Under the law, the Principal Immigration
Officer had powers to deport non citizens. It was established that the applicant was a Tanzanian
citizen and not a non citizen. The High Court granted orders of prohibition against the Principal
Immigration Officer in so far as he was trying to bring his jurisdiction over a matter that the law
did not place under him.
b) Action or Decision by the wrong person or authority
Decisions must be taken by the proper authority. They must be a person entrusted with the powers
under the law. Thus a power exercised by the Chief Administrative Officer of a District cannot be
exercised by the Chairperson of the District. It does not matter whether the person exercising the
power is a superior officer. Same for cases of proper ratification, power exercised by the wrong
person or authority is an illegal execution of powers.
c) Body not properly constituted
A public body which has statutory powers must be properly constituted before it can exercise
powers. A body is properly constituted in the following situations:
When the required number of members is not appointed or where there is no body constituted
in accordance with the law, then there is no proper authority.
When the required quorum is not in place as was the case of Virji Vs Puuja Lila. The quorum
required to conduct business was not realized. The Chairman sat alone and determined the rent
payable by tenants. He made his decision to be that of the Rent Tribunal. The court held that the
decision had been taken by the wrong authority because the quorum requirements had not been
met.
Where non-members participate
A body is not properly constituted where non members are admitted and participate in the
proceedings. In the case of Dent Vs Kiambu Liquor Licencing Court, the Liquor Licencing
Tribunal allowed non members to attend the courts meetings. The court also allowed them to
debate whether the applicant should get a licence. They also voted against the issue of the licence
to the applicant. The High Court held that the licencing body had made a decision when it was not
properly constituted.
Members do not participate fully
A body is also not properly constituted where the minimum membership does not fully participate
in the proceedings. Members are expected to take part in hearing all the evidence, evaluating the
evidence and making the decision. A decision that does not reflect full participation of all members
runs the risk of being set aside. In Annebrit Aslund Vs Attorney General (2001-2005) HCB 103
10, the Commission of Inquiry into Uganda Revenue Authority was composed of three
Commissioners. They disagreed on some aspects of evidence and could not submit a report that
reflects the views of the Commission. A final report was not signed by all the Commissioners. The
court allowed the applicant to challenge any references to her in the report. The court purged
references to the applicant and ordered that the part of report of making references to her could not
be used as a basis for further action.
Unlawful Delegated Powers
Ultra vires also arises where there is illegal delegation of powers. Unlawful delegation of powers
arises in the following instances:
 Where there is statutory prohibition e.g. S.175 of the Local Governments Act.
 When the maxim of delegates non potest delegare applies. Second delegation is prohibited.
 Where there is delegation of discretionary powers.
 Where there is delegation of judicial powers.
Unlawful delegation does not give authority to the delegate. Once this occurs, then the delegate is
action ultra vires.
In Rahemutula Gulamani Vs R, the Cotton Ordinance gave powers to the Governor to make
rules for destruction of cotton plants after the picking seasons. The Governor made a rule that
authorized the Director of Agriculture to fix a date prior to which all previous seasons cotton
should be uprooted and burnt. The Director of Agriculture issued the relevant rules. The accused
failed to comply with them and was prosecuted. He successfully argued in court of law that the
exercise of the power granted to the Governor by the Director of Agriculture was ultra vires. The
rules were therefore unenforceable.
CASES;
Assets Authority
The applicant submitted a bid to the Civil Aviation Authority for the tender of the Management of
Advertisement at Entebbe International Airport following a request for bids by the said Civil
Aviation Authority. It is the applicant’s case that its bid was unjustly and unreasonably rejected by
the said Civil Aviation Authority and the tender was awarded to M/s Alliance Media Ltd.
upon the Civil Aviation Authority (‘the CAA’) rejecting its tender bid. The applicant then applied
to the respondent for Administrative Review of the said decision as by law established. The
respondent in its review process found that the tender process had been marred by several
irregularities and omissions contrary to the PPDA Act and Regulations. Despite these findings,
however, it (the respondent) allowed the tender process to continue. The Applicant then applied to
the High Court for judicial review and orders of certiorari and prohibition.
Whether or not the respondent erred in law when it allowed the tender process to proceed despite
having found irregularities in the tender process
HELD
The principle, so far as it affects the present case, is that if a statute prescribes, or statutory rules
or regulations binding on a domestic tribunal prescribe, the procedure to be followed, that
procedure must be observed. It is trite that when an administrative body does something, which it
has in law no capacity to do or does it without following the proper order, it is said to have acted
illegally. This will be a ground for applying for orders of Certiorari, mandamus or prohibition
because such an act is beyond powers and hence ultravires
That since the respondent found CAA’s award illegal on account of non-compliance with the
provisions of PPDA Act, the respondent’s decision in allowing CAA to continue with the
procurement process was also illegal null and void. As such Court allowed the application for
judicial review, granted the orders of certiorari and prohibition sought and ordered a repeat of the
tender process.
Thugitho v Nebbi Municipal Council (MISCELLANEOUS CIVIL APPLICATION No. 0015

OF 2017
HELD; 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 decision-maker could have come to the same decision or done the
same thing (unlawful on the grounds of reasonableness); or without observing the rules of natural
justice (unlawful on the grounds of procedural impropriety or fairness). Failure to observe natural
justice includes: denial of the right to be heard, the rule against actual and apprehended bias; and
the probative evidence rule (a decision may be held to be invalid on this ground on the basis that
there is no evidence to support the decision or that no reasonable person could have reached the
decision on the available facts i.e. there is insufficient evidence to justify the decision taken).
Decisions made without the legal power (ultra vires which may be narrow or extended. The first
form is that a public authority may not act beyond its statutory power: the second covers abuse of
power and defects in its exercise) include; decisions which are not authorised, decisions taken with
no substantive power ore where there has been a failure to comply with procedure; decisions taken
in abuse of power including, bad faith (where the power has been exercised for an ulterior purpose,
that is, for a purpose other than a purpose for which the power was conferred), where power not
exercised for purpose given (the purpose of the discretion may be determined from the terms and
subject matter of the legislation or the scope of the instrument conferring it), where the decision is
tainted with unreasonableness including duty to inquire (no reasonable person could ever have
arrived at it) and taking into account irrelevant considerations in the exercise of a discretion or
failing to take account of relevant considerations. It may also be as a result of failure to exercise
discretion, including acting under dictation (where an official exercises a discretionary power on
direction or at the behest of some other person or body. An official may have regard to government
policy but must apply their mind to the question and the decision must be their decision).
By reconsideration of the impugned decisions for illegality, the court seeks to determine whether
the respondent understood correctly the law that regulates its decision making power and gave
effect to it. The powers include those expressly provided for in the statute as well as those that
arise by necessary implication (see Lord Selborne LC and Lord Blackburn, in Attorney General v.
Great Eastern Railway Co., (1880) 5 AC 473). Whatever may fairly be regarded as incidental to,
or consequential upon, those things which the Legislature has authorised, ought not (unless
expressly prohibited) to be held by judicial construction, to be ultra vires. In the same sense, what
those sources do not expressly or impliedly authorize is to be taken to be prohibited but those
things which are incidental to, and may reasonably and properly be done under the main purpose,
though they may not be literally within it, would not be prohibited. To the extent that a corporation
acts beyond its powers, its actions will be ultra vires and invalid.
An action or decision may be illegal on the basis that the public body has no power to take that
action or decision, or has acted beyond its powers. If an act is within the powers granted, it is valid.
If it is outside them, it is void. In Regina v. Hull University Visitor, Ex parte Page; Regina v. Lord
President of the Privy Council ex Parte Page, [1993] 3 WLR 1112, [1993] AC 682, the House of
Lords considered the nature and purpose of the system of judicial review from this perspective and
stated:
The fundamental principle [of judicial review] is that the courts will intervene to
ensure that the powers of public decision-making bodies are exercised lawfully. In all
cases.....this intervention.....is based on the proposition that such powers have been
conferred on the decision-maker on the underlying assumption that the powers are to
be exercised only within the jurisdiction conferred, in accordance with fair procedures
and, in a Wednesbury sense.......reasonably. If the decision-maker exercises his powers
outside the jurisdiction conferred, in a manner which is procedurally irregular or is
Wednesbury unreasonable, he is acting ultra vires his powers and therefore unlawfully.
OJANGOLE PATRICIA &ors v ATTORNEY GENERAL MISC CAUSE NO. 303 OF 2013
I also agree with the submission by learned counsel for the applicants that the IGG’s directive to
the 4th and 5th applicants were illegal and an abuse of its powers as it seeks to exert influence on
the board to exercise its discretionary powers in disciplinary matters in the IGG’s favor. The 5 th
applicant is a duly incorporated company and its Human Resource Manual (annexture ‘M’ to Mr.
Sejjaka’s affidavit) is implemented by the Board of Directors which is mandated to manage the
institution.
I agree with the applicants that the IGG does not have mandate to direct the Board of Directors
on how they should exercise their discretionary powers to discipline staff. A similar scenario arose
in the case of Livercot Impex limited & another Vs Attorney General & another, Misc, Cause
173/2010 where Justice Eldad Mwangusya J (as he then was) held inter alia that the IGG was not
enjoined with powers to direct the Minister of Lands to caution the Chairman of the Board,
Members of the Board, the Secretary of the Uganda Land Commission and the Ag. Commissioner
Land Registration on the conduct of their respective offices. The learned judge noted and I agree
with him, that those were matters of discipline and the IGG did not have powers to direct the
Minister to take action on matters of discipline.
PROCEDURAL ULTRA VIRES

Procedural ultra vires arises in a situation where the relevant authority acts contrary to the
established procedures. Procedures are normally ascertainable from the Constitution, Acts of
Parliament, and subsidiary legislation. Sometimes the Acts of Parliament leave the relevant
authority to put in place rules of procedure to govern its operations.
Activity
Why are rules of procedure put in place? You can answer this by revisiting the section on the
objectives of Administrative Law.
The usual procedural requirements in the exercise of public administrative powers include:
 Consultation (revisit Administrative Process)
 Antecedent publication (revisit Subsidiary Legislation)
 Approval
 Posterior Publicity (Gazette)
 Registration
 Inspections
a) Consultation- many laws require to be made after a consultative process. This will raise issues
which need to be answered by a particular policy or law.
- Statutes will normally indicate who should consult who; a person to consult is usually a person
charged with formation of a particular law or policy.
-they also normally provide / indicate who consulted include interest groups, professional body
which is in line with that activity, government departments. The main purpose of consultation is
to ensure that the resultant policies /laws are accepted by the greater majority of persons and once
they are accepted they are easy to implement. Failure to consult means that the P.A has acted ultra-
vires and the decision which follows will be regarded as void.
It involves some indication of what the obligation involves. In Rollo Vs Minister of Town and
county planning (1948) 1 ALLER 13, a Minister was obliged under the Town & County Planning
Act to consult with " any local authorities which appear to him to be concerned " before making
an order designating an area as the site of a new town, Bucknill, L.J said " on the one side the
minister must supply sufficient information to the local authority to enable them to tender advise
and on the other hand, a sufficient opportunity must be given to the local authority to tender that
advise" therefore the essence of consultation is to tender genuine invitation extended with
acceptable mind to give advise.
In R Vs Secretary of state for social services Exparte Association of Metropolitan Authorities
(1986) 1 ALLER 164, Webster J explained "... it must go without saying that to achieve
consultation, sufficient information must be supplied by the consulting to the consulted party to
enable it to tender helpful advise. Sufficient time must be given... to enable it to do so and for such
advice to be considered..."
b) Gazetting in promulgation. It is a requirement under many laws e.g. election laws, land Act,
companies act etc. Local Government Act requires gazetting subsidiary bye laws or ordinances.
For instance Section 38 (4) of the Local Government Act provides that a bill enacted by the district
council and signed by the district chairperson under this section shall be an ordinance of the council
and shall be published in the official Gazette and in the local media.
- Further more, the requirement of gazetting is found in the interpretation act, under the
Interpretation Act between sections13-16. There is a requirement in all subsidiary legislation, in
whatever form or name must be gazetted before courts can take their validity of existence (judicial
notice)
In Mwanji Vs R, Court held that regulations which purport to amend some existing legislation
must be gazetted in accordance with the provisions of the interpretation act. Where gazetting is
not done, such regulation can not be enforced.
c) Antecedent publication
Some laws require publication before enactment of regulation. This is usually a form of a
consultative process. It enables the affected persons to know what is being proposed and to give
their views on the proposals. Antecedent publication may be in the Uganda gazette e.g. under acts
of parliament act. It may also be in any other publication like newspapers, or by putting the
publication in a conspicuous place or in a place accessible to the public like it is a requirement in
a local government act (proposals and bye-laws). The third schedule to the LGA requires in
paragraph 16 that the council shall, not later than fourteen days before a bill is to be debated by
the council, publish the draft (a) by fixing a copy of the bill in a conspicuous place on or near the
outer door of the office of the district council during office hours; (b) by including the bill as a
supplement to an official local publication, if any; (c) by availing copies of the bill to the public;
or (d) in any other manner as is customary in the area. (2) There shall be attached to the bill for
publication a short memorandum signed by the person introducing the bill, setting out the policy
matter of the bill and how the bill seeks to implement that policy.
d) Approval
Some statutes require that certain decisions be approved by a particular public body, such a public
body may be a minister, and statutory corporation e.t.c. S.175 of LGA gives power to the Minister
of Local Government power to amend the schedules of LGA. It also requires that such amendment
should be approved by cabinet. Failure amounts to ultra-vires and nullity.
e) Laying before parliament
This is not the usual procedure under the modern statutes, but there are some old statutes of
parliament which require subsidiary legislation to be laid before parliament before laws become
operational.
In Wakiso Estates Vs R, there was a legal requirement that regulations made under the labour
ordinance be laid before the legislature before they could become operational, this regulations were
not laid before the legislature as according to the provision of the ordinance. Wakiso estate was
prosecuted for breach of these regulations. They challenged the validity of the regulations because
they had been enacted by not following the procedures envisaged under the ordinance. Court held;
that regulations were invalid and ultra-vires in so far as they procedures were concerned.
In Ridge Vs Baldwin and others, this was a case involving disciplinary proceedings against a
chief constable police, he was dismissed but the relevant committee did not give him a hearing as
required by regulations which concerned disciplinary proceedings in the police force and he
challenged the outcome of those proceedings. Held that in as much as the decision was arrived at
in complete disregarded of the regulations, it must be regarded as void and of no effect.
Principles of natural justice also require the relevant authorities to follow common law procedures
which are not found in statutes. Breach of those procedures is subject of denial of principles of
natural justice. It is not necessarily ultra-vires. Ultra-vires can only be outside the scope of a
particular law.
Effect of Failure to follow Procedures

There is no general rule regarding the effect of failure to follow procedures. However, there are
some basic principles that can be used in situations where procedures are not followed has not
taken place.
Judicial decisions are to the effect that the following considerations should be used in cases where
the relevant authority failed to follow procedure:
i) Whether the requirement was mandatory, directory or optional
A requirement is mandatory where it must be complied with e.g. where the law provides that the
relevant authority “must”, “shall”, “be under obligation”, “compulsory follow” certain procedures.
In that case failure to follow the established procedure will be regarded as invalid exercise of
powers e.g. In Semwogerere and others Vs Attorney General, the court nullified an Act of
Parliament which was enacted without taking procedures which was set out in the law.
See also Agriculture, Horticulture and Forestry Training Board Vs Aylesbury Mushrooms.
In that case, the Minister was required to consult scheduled organizations before constituting a
Training Board. He consulted most of the organization but not the mushroom growers yet they
were scheduled. The court said that the required was mandatory and failure to follow it makes the
decision void against those who should have been consulted.
De Sonza Vs Tanga Town Council – The court held that where rules of procedure are set out, the
rules must be followed or else the action can be set aside.
A requirement is directory where it indicates how things shall be done. In such a case, it operates
as a guideline on how a particular act shall be executed.
A directory provision if not followed does not necessarily lead to invalidation of an act or
decision. An optional or discretionary rule of procedure does not enjoin the particular authority to
act in a particular way. If not executed, there is no breach of procedures because the authority has
a choice of action.
ii) The Extent of Non-Compliance
Courts can also determine the consequences of non-compliance by reference to the extent of non-
compliance. Wanton disregard for procedures without sufficient reason will not be accepted by
courts. On the other hand, honest mistake, acting in good faith or impossibility of enforcement of
procedures may mitigate the disregard for rules. A public authority may demonstrate that it tried
to comply with the rules but failed to fulfill all requirements for no reasons beyond its control. In
such cases, the courts may not invalid the decision. If compliance is substantial the courts are not
likely to annul the decision – See Besigye Vs Museveni (2006).
iii) Effect of Non-Compliance
Courts will also evaluate the effect of non compliance. If the effect on non compliance relates to
individual rights and freedoms, then the courts are likely to take a dim view on the outcome.
Furthermore, if non-compliance leads to a substantially different result compared to what could
have resulted from compliance, and then the courts are likely to invalidate the decision. In Besigye
Vs Museveni (2001) and Besigye Vs Museveni (2006), the court was of the view that the electoral
irregularities including failure to comply with procedural requirements did not substantially affect
the outcome of the electoral process.
iv) Whether there was an established practice
In Mwangi V R, the appellant was prosecuted and convicted for breach of regulation relating to
overcharging for a hair cut. The regulation had been issued in the gazette relating to the price of
hair cuts. The regulations were subsequently amended but not gazetted. The court was of the view
that following the established medium of communicating regulations i.e. gazetting was
fundamental. The case suggests that once an authority has established a particular procedure of
carrying out a public function, it should follow that procedure or else its actions may be challenged.
This avoids arbitrariness and ensures predictability in performance of public functions.
 Procedural impropriety refers to failure to act fairly in making the decision as for example
by not following or observing rules of natural justice or being procedurally unfair to one
of the parties. This may include failing to accord adequate time, failing to notify about an
issue complained about, failing to observe statutory rules in the exercise of the authority.
Pastoli Twinomuhangi Vs Kabale District Local Government (supra)
Held; “Procedural impropriety” includes failure to adhere to procedural rules expressly laid
down in a statute or legislative instrument by which such authority exercises jurisdiction to
make a decision”.
Ridge Vs Baldwin [1964] AC 40, HELD “a decision reached by an administrative body in

disregard of the principles of fair hearing or natural justice is null and void”
MARVIN BARYARUHA V ATTORNEY GENERAL MISCELLANEOUS CAUSE NO.149

OF 2016
Held;
‘Acting fairly’ is a phrase of such wide implications that it may ultimately extend beyond
the sphere of procedure. It includes a duty to act with substantial fairness and consistency.
See HTV Ltd vs Price Commission [1976] ICR 170
Every person appearing before an administrative authority has the right to know the
evidence against him or her. Therefore nothing should be used against the person which
has not been brought to his or her notice. See R v Thames Magistrates’ Court ex p Polemis
[1974] 1 WLR 1371
In the same vein, the administrative authority should afford reasonable opportunity to the
party to present his/her case. However, it does not mean that a person can be allowed to
unnecessarily prolong and confuse the administrative proceedings by adducing irrelevant
evidence
The right to rebut adverse evidence presupposes that the person has been informed about
the evidence against him. It is not enough that a party should know the adverse
material/evidence against himself/herself but it is further necessary that he is given an
opportunity to rebut the evidence.
What is essential is substantial fairness to the person adversely affected? The applicant as
a person who was under investigation, deserved to be informed of the case/allegations he
had to meet and disclosing the precise evidence or the sources of information.
THUGITHO FESTO v NEBBI MUNICIPAL COUNCIL MISCELLANEOUS CIVIL
APPLICATION No. 0015 OF 2017
Held; On procedural impropriety;
Although there is no general duty at common law to conduct a hearing before an administrative
decision is taken, in circumstances where important interests are at stake such as one’s livelihood
a hearing has been required (see R v. Commissioner for Racial Equality exp. Helling don LBC
[1982] AC 779). The classic situations in which the principles of natural justice become applicable
include situations where some legal rights, liberty or interest is affected.
The rules of natural justice are not immutable though but context-dependent and should be
interpreted within the specific context, the basic or fundamental principle being that of a
procedurally fair hearing before an impartial decision-maker.
P.G. Osborn’s The Concise Law Dictionary, 5th Edition at p.217 defines the concept of natural
justice as follows:
The rules and procedure to be followed by any person or body charged with the
duty of adjudicating upon disputes between, or the rights of others; e.g. a
government department. The chief rules are to act fairly, in good faith, without
bias, and in a judicial temper; to give each party the opportunity of adequately
stating his case, and correcting or contradicting any relevant statement prejudicial
to his case, and not to hear one side behind the back of the other. A man must not
be judge in his own cause, so that a judge must declare any interest he has in the
subject matter of the dispute before him. A man must have notice of what he is
accused. Relevant documents which are looked at by the tribunal should be
disclosed to the parties interested.
Unless there are statutorily prescribed procedures, and subject to the overall requirements of
fairness, the decision-maker will usually have a broad discretion as to how a disciplinary
proceeding should be carried out. The decision-maker is free to determine its procedure provided
such procedure is compliant with its general duty to act fairly, in good faith, without bias and in a
judicial temper, giving the applicant the opportunity to adequately state his or her case, to correct
or contradict any relevant statement prejudicial to his case, and not to hear the other party
behind his back.
The essence of the audi alteram partem rule was explained by Lord Denning in Kanda v.
Government of the Federation of Malaya [1962] AC 322, [1962] 2 WLR 1153 as follows;
If the right to be heard is to be a real right which is worth anything, it must carry with
it a right in the accused man to know the case which is made against him. He must
know what evidence is given and what statements have been made affecting him: and
then he must be given a fair opportunity to correct or contradict them.....it follows, of
course, that the Judge or whoever has to adjudicate must not hear evidence or receive
representations from one side behind the back of the other. The Court will not enquire
whether the evidence or representations did work to his prejudice. Sufficient that they
might do so. The Court will not go into the likelihood of prejudice. The risk of it is
enough. No one who has lost a case will believe he has been fairly treated if the other
side has had access to the Judge without his knowing.
A quasi judicial body need not meet the standards of a trial in court but fairness must prevail. A
duty resting upon a committee “to hear and decide” is an exercise of the auditory faculty which
means to hear both sides and imports, at the very least, a duty to afford the parties an opportunity
to be heard. To hear must mean “to listen judicially to” or “to give audience to.” The respondent
had the duty give the applicant the opportunity of adequately presenting his case. The applicant
was entitled to know what he was being accused of and he was entitled to respond to and correct
any statements prejudicial to his position. The principle is that a person in proceedings of this
character should, to use the words of Lord Greene, M. R. in R. v. The Archbishop of Canterbury
[1944] 1 K. B. 282; [1944] 1 All E. R. 179 at p. 181, be given “... a real and effective opportunity
of meeting any relevant allegations made against him.” It follows that;
If the right to be heard is to be a real right which is worth anything, it must carry with
it a right in the accused man to know the case which is made against him. He must
know what evidence has been given and what statements have been made affecting
him: and then he must be given a fair opportunity to correct or contradict them. This
appears in all the cases from the celebrated judgment of Lord Loreburn, L. C. in Board
of Education v. Rice [1911] A.C. at p. 182 down to the decision of their Lordships’
Board in Ceylon University v. Fernando [1960] 1 WLR 223. It follows, of course, that
the judge or whoever has to adjudicate must not hear evidence or receive
representations from one side behind the back of the other. The Court will not enquire
whether the evidence or representations did work to his prejudice, sufficient that they
might do so. The Court will not go into the likelihood of prejudice. The risk of it is
enough. No one who has lost a case will believe he has been fairly treated if the other
side has had access to the Judge without his knowing. Instances which were cited to
their Lordships were Re Gregson (1894) 70 L.T. 106, Rex v. Bodmin Justices 1947
K.B. 321 and Goold v. Evans (1951) 1 T.L.R. 1189, to which might be added Rex v.
Architects Registration Tribunal (1945) 61 T.L.R. 445, and many others. Applying
these principles their Lordships are of opinion that Inspector Kanda was not in this
case given a reasonable opportunity of being heard. They find themselves in agreement
with the view expressed by Rigby, J. in these words: “In my view, the furnishing of a
copy of the Findings of the Board of Inquiry to the Adjudicating Officer appointed to
hear the disciplinary charges, coupled with the fact that no such copy was furnished to
the plaintiff, amounted to such a denial of natural justice as to entitle this Court to set
aside those proceedings on this ground. It amounted, in my view, to a failure to afford
the plaintiff a reasonable opportunity of being heard in answer to the charge preferred
against him which resulted in his dismissal.” The mistake of the police authorities was
no doubt made entirely in good faith. It was quote proper to let the adjudicating officer
have the statements of the witnesses. The Regulations show that it is necessary for him
to have them. He will then read those out in the presence of the accused. But their
Lordships do not think it was correct to let him have the Report of the Board of Inquiry
unless the accused also had it so as to be able to correct or contradict the statements in
it to his prejudice.” (See B. Surinder Singh Kanda v. The Government of The
Federation of Malaya [1962] A.C. 322 (P.C.).
By reason of those principles, the respondent was required to have before it the whole of the
evidence presented, although not required to proceed as if the question before it were a trial, but
always giving a fair opportunity to the applicant for correcting or contradicting any relevant
statement prejudicial to his view (see Board of Education v. Rice [1911] AC 179 at p. 182). The
respondent had the right to regulate its procedures as it thought fit for example by hearing the
applicant orally or by receiving written statements from him, or by appointing a person to hear and
receive evidence or submissions from him for its own information (see James Edward Jeffs and
others v. New Zealand Dairy Production and Marketing Board and others [1967] AC 551).
Although the rules of natural justice need not involve an oral hearing, the respondent had an
obligation to give the applicant a fair opportunity to correct or contradict any relevant prejudicial
statement. Whichever procedure was adopted, it should be one capable of letting the applicant
know the materials that were collected, what evidence was given and what statements or reports
were made affecting his rights. He must have been given a fair opportunity for correcting or
contradicting any relevant statement prejudicial to his view.
In the end, how nearly an inquiry by a statutory body which has to make decisions must approach
to the full-blown procedure of a court of justice in order to comply with the rules of natural justice
is not doubt a matter of degree. The essential requirements of natural justice are that; the person
accused should know the nature of the accusation made; secondly, that he or she should be given
an opportunity to state his or her case; and thirdly, the tribunal should act in good faith (see Byrne
v. Kinematograph Renters Society Ltd, [1958]1 WLR 762).
In the instant case, I find that neither the statutory procedure nor the rules of natural justice were
complied with in the process leading to removal of the applicant from office “until he recovers
shs. 38,360,000/=”. The decision was arrived at arbitrarily and capriciously. A decision reached in
contravention of the Rules of Natural Justice is void ab initio (See Matovu and two others v.
Sseviiri and another [1979] HCB 174; Kamurasi Charles v. Accord Properties Limited, S.C. Civil
Appeal No. 3 of 1996).
OJANGOLE PATRICIA &ors v ATTORNEY GENERAL MISC CAUSE NO. 303 OF 2013
Applicants applied for orders declaring that:- The Inspector of Government (IGG) misused its
discretionary powers when it directed the 5th applicant’s Board of Directors, whose Chairman is
the 4th applicant to suspend the 1st , 2nd and 3rd applicant from their positions as employees of the
5th applicant. That The investigations conducted by the IGG out of which the impugned directives
has been made were conducted in an oppressive, irrational, vindictive and biased manner.
HELD;
It is now settled that it is a fundamental principle of justice and procedural fairness that no person
is to be condemned unless that person has been given prior notice of the allegations made against
him or her, and a fair opportunity to be heard.
In Halsbury’s Laws of England 5th Edition 2010 Vol. 61 para 639, It is stated as follows with
regard to the right to be heard:-
“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 case of Onyango Oloo Vs Attorney General [1986 -1989] EA 456 the court of Appeal of
Kenya considered in a local context the application of the rules of Natural Justice as follows:-
“The principle of natural justice applies where ordinary people would reasonably expect
those making decisions which will affect others, to act fairly and they cannot act fairly
and be seen to have acted fairly without giving an opportunity to be heard
…………………. There is a presumption in the interpretation of statutes that rules of
natural justice will apply and therefore the authority is required to act fairly and so to
apply the principle of natural justice ………………… To ‘consider’ is to look attentively
or carefully, to think or deliberate on, to take into account, to attend to, to regard as, to
hold the opinion ……………….. Consider implies looking at the whole matter before
reaching a conclusion ……………….. A decision in breach of the rules of natural
justice is not cured by holding that the decision would otherwise have been right since if
the principle of natural justice is violated, it matters not that the same decision would
have been arrived at ……………… It is improper and not fair that an executive
authority who is by law required to consider, to think of all the events before making a
decision which immediately results in substantial loss of liberty leaves the appellant and
others guessing about what matters could have persuaded the decision maker.”
In terms of conduct of proceedings the court of Appeal of Kenya proceeded to observe that:-
“…………. In the course of decision making, the rules of natural justice may require an
inquiry, with the person accused or to be punished present, and able to understand the
charge or accusation against him, and able to give his defence. In other cases it is
sufficient if there is an investigation by responsible officers, the conclusions of which
are sent to the decision making body or person, who, having given the person affected a
chance to put his side of the matter, and offer whatever mitigation he considers fit to put
forward, may take the decision in the absence of the person affected. The extent to which
the rules apply depends on the particular nature of the proceedings. …………………. It
is not to be implied that the rules of natural justice are excluded unless parliament
expressly so provide and that involves following the rules of natural justice to the degree
indicated.
………….. It is to everyone’s advantage if the executive exercises its discretion in

manner, which is fair to both sides, and is seen to be fair …………… Denial of the
right to be heard renders any decision made null and void abnitio.”
See also Kuluo Andrew & 2 others Vs Attorney General & others HC Misc Cause No. 106 of
2010 per Bamwine J (as he then was).
From the above celebrated pronouncements it is apparent that the rule of natural justice obliges an
adjudicator faced with the task of making a choice between two opposing stories to listen to both
sides. He should not base his decision only on hearing one side. He should give equal opportunity
to both parties to present their cases or divergent view points. The scales should be held evenly
between the parties. It does not matter that the result would be the same
In the instant case I am constraint to find that the applicants were not accorded a fair hearing during
the IGG investigations of this case. Even in matters of criminal investigations, whether or not they
lead to administrative sanctions, rules of natural justice must be observed and the affected parties
must be accorded a fair hearing to state their side of the story in an investigation conducted free of
bias.
In Uganda the right to fair hearing is enshrined in our Constitution, Article 28 (1). The right to fair
and just treatment by an administrative body is enshrined in Article 42 of the Constitution. The
actions of the IGG in this case amounted to procedural impropriety. The applicants were given the
impression that what was being investigated was different from what they were arrested for, i.e
victimization.
 If the court is satisfied, it will make the appropriate orders. Judicial review lies at the root
of administrative law, administrative acts and its purpose is to ensure that a lawful authority
vested in a body or in a person is not abused by unfairness.
 It is intended to ensure that the machinery of government operates in a lawful manner.
Mukasa Mbidde v LDC;
Thugitho v Nebbi Municipal Council (MISCELLANEOUS CIVIL APPLICATION No. 0015

OF 2017
HELD; Applications for Judicial review under rule 3 of The Judicature (Judicial Review) Rules,
2009, S.I. 11 of 2009, made under section 38 (2) of The Judicature Act, for orders of mandamus,
prohibition, certiorari or an injunction are directed at the legality, reasonableness, and fairness of
the procedures employed and actions taken by public decision makers. They are designed to
enforce the rule of law and adherence to the Constitution. The focus of judicial review is to quash
invalid decisions by public bodies, or require public bodies to act or prohibit them from acting, by
a speedy process. Its overall objective is good governance. These public purposes are
fundamentally different from those underlying contract and tort cases or causes of action under
statute, and their adjunct remedies, which are primarily designed to right private wrongs with
compensation or other relief. An application for judicial review combines an allegation that a
public authority has acted contrary to the substantive principles of public law, along with a claim
for one of the kinds of relief listed. The discretionary nature of the courts’ supervisory jurisdiction
reflects the fact that unlike private law, its orientation is not, and never has been, directed
exclusively to vindicating the rights of individuals. It is essentially a claim for unlawful or unfair
termination of employment with only a thin pretence to preventing the abuse of power.
ABUSE OF DISCRETIONARY POWERS

Some Acts of Parliament give administrative authorities discretionary powers to make decisions
or take action on the basis of their own judgment. The provisions that give discretionary powers
are expressed in a permissive way and in a way that suggests freedom of action. These provisions
use words or phrases that give the relevant authority. Such freedom of action include “may”, “if
deems fit”, “in its judgment”, “deems necessary”.
Activity
Discuss the justifications why Parliament grants discretionary powers instead of directing on what
should be done.
Discretions allow the holder of discretionary powers to decide on the following:
a) Whether a particular decision or action can be taken.
b) When a particular decision or action can be taken.
c) How particular decisions can be made.
Discretionary Powers (herein abbreviated as DP) are granted for purpose of attainment of specific
objectives in particular legislation. D.P must be exercised judicially i.e. in
a) Accordance with the law.
b) Basing the decision on facts or available evidence.
c) Taking into account principles of natural justice.
The general principle is that there is no absolute discretion. The law does not expect public officials
to do whatever they like from the powers granted to them. Reasons for discretion could be different
circumstances that need to be taken into account before reaching a certain decision.
Discretion may however be used as a flexible tool of managing public affairs; Public officers to
make flexible decisions based on circumstances. Like all powers, discretionary powers may be
abused and administrative law intervenes where P.A abuse their powers of discretion.
Legal Control of Discretionary Powers
The required principle is that discretions must be exercised in relation to the objectives of a
particular statute. Discretions must aim at achieving the objectives set out in the enabling law.
Discretions must be exercised judiciously. That is to say, they must:
a) be in accordance with the law;
b) taken into account relevant facts and evidence; and
c) respect rights of persons e.g. principles of natural justice.
As a general rule, there is nothing like absolute discretion irrespective of the wording of a statute.
Hence the exercise of discretion must be controlled. A public authority can be subjected to judicial
review if it has abused its discretionary powers.
How can discretionary powers be abused?
Abuse of discretionary powers arises in the following situations:
a) Taking into account irrelevant considerations
b) Using discretions for improper purposes
c) Unreasonableness
d) Negligence
e) Fetter of discretionary powers
f) Acting without evidence
g) Failure to give reasons
h) Bad faith
i) Error on record.
Irrelevant Considerations
As indicated, discretion must aim at achieving the objectives of a particular legislation. The
relevant authority must therefore take into account relevant facts and disregard irrelevant
considerations.
In the case of Associated Provisional Picture Houses Vs Wednesbury Corporation, the judge
summarized this principle as in the following words:
“The exercise of discretion must be a real exercise of discretion. If in a statute conferring
discretion, there is to be found expressly or by implication matters which the authority
exercising discretion ought to have regard to, then in exercising discretion, it must have
regard to those facts. Conversely, if the nature of the subject matter and the general
interpretation of the Act make it clear that certain matters would not be germane to the
matter in question, and then the authority must disregard those irrelevant collateral
matters”.
The following cases illustrate the use of irrelevant considerations in the exercise of discretionary
powers.
In Re Application of Bukoba Gymkhana Club, the Club had held a licence for over 30 years.
When it applied for renewal, the relevant licencing authority declined to give approval. The reason
given for the refusal was that the club’s rules of admission made it difficult for Africans to become
members. This was not one of the conditions of the licence. On review, the court ruled that the
licencing authority had abused its discretion by considering admission rules which were not
relevant to that particular licence.
In Fernandes Vs Kericho Liquor Licencing Company, the application for a licence was denied
on grounds of the fact that the applicant was not a Kenyan citizen. Citizenship was not a condition
of licencing. The court held therefore that citizenship was an irrelevant consideration which should
not have influenced a licencing decision.
Statutes sometimes give the conditions or requirements of inspections, registration or licencing of
activities. In such cases, there will be relevant considerations.
Article 21 of the Constitution gives general matters that are generally irrelevant in the making of
administrative decisions. These include sex, race, colour, ethnic origin, tribe, birth creed or
religion, social and economic standing, political opinion or disability. The same article however
makes it politically correct to practice affirmative action in respect of correcting historical wrong
and addressing disadvantages or marginalization suffered by some sections of society. In this
regard, policies like 1.5 points awarded to females for admission to public universities have been
put in place. Otherwise it would have been an irrelevant consideration to use gender of persons for
purposes of admission.
Shah Vs Transport Licencing Board, a Licence was denied to Shah (applicant) on because it was
aimed at removing imbalances between Kenyans and non- citizens. Court held that this was abuse
of discretionary powers using irrelevant reasons.
In Mandhwa Vs City Council of Nairobi, allocation of stalls was denied because of the desire to
allocate stalls to Kenyans of African origin. Court held that issue of race and citizenship were
irrelevant and should not have taken into account
Activity
Give the relevant and irrelevant considerations in the exercise of the following administrative
powers:
a) Licencing of schools
b) Award of scholarships
c) Planning permissions
d) Compulsory acquisition of land
Improper Purposes
Discretions must be used to achieve the objectives of a particular statute. It should not be used to
attain another objective however noble it is. Use of discretionary powers to achieve another
objective other than those anticipated by statute is not only ultra vires but also an abuse of
discretionary powers.
In the case of Sydney Municipal Council Vs Campbell, power was given to local authority to
acquire land for purposes of remodeling the city. The local authority used that power to acquire
land with the stated objective that it (the land) would be disposed off at a later state at a premium.
The acquisition was challenged and the court held that this was an attempt to use statutory powers
to achieve objectives which are not anticipated under the enabling law.
In Roberts Vs Hopwood, the local authority had powers to determine wage levels within the local
authority. It used that power to decide that henceforth men and women would earn the same wages.
These judges said that this was an attempt to use statutory power of setting wages in order to
achieve socialist philosophy and feminine ambition of equality of sexes. Such a decision cannot
however be upheld under our Constitution in light of Art 21 but it is an illustration of improper
purposes.
Improper purposes are usually those different stated objectives. Statutes are usually drafted to
include all relevant purposes. These also include collateral or incidental purposes of a particular
law. Where two purposes appear to be in conflict, the law will always look at the dominant
purposes as a guide to the real objectives. Improper purposes usually include economic gain,
discrimination, favouritism and other sectarian considerations.
In Padfield Vs Minister of Agriculture, it was stated as a principle that a public authority uses
statutory powers to achieve the stated objectives. Where a P.A acts otherwise, it will be deemed to
have abused its discretion even if the result is beneficial to the relevant community.
In Wheeler Vs Leicester C.C (1985) AC 554 / (1988) 2 ALLER, the appellant sought judicial
review to compel the city council to quash a resolution of the council which had prevented the
appellant from using one of the council recreational grounds. The council had statutory powers to
allow or withhold permission for use of its grounds. The stated reason for refusal was that members
of the Right Wing club had toured South Africa during the time of apartheid. The resolution of the
council had been motivated by the desire to harmonise race relations within the city. Court agreed
with the appellant and Held that it was an abuse of discretionary powers to deny the appellant
recreational facilities because of the desire to harmonise race relations within the city. That this
was an example were D.P were used to achieve something beyond the scope of the statute.
Unreasonableness
Unreasonableness is an aspect of abuse of discretionary powers. Reasonableness reflects what is
acceptable in a particular society. Discretion does not confer on the relevant authority power to
make decisions that are not reasonable. What is reasonable depends on the judgment of a
reasonable person in a particular society. What is reasonable may relate to:
 What is practicable or enforceable
 What is affordable
 Manners and codes of behaviour
 Costs of operation
 Status of persons
 Cultural matters
 Ambiguity and uncertainty
In R V Harmitte, a local authority had powers to enact bye laws. It made a law which provided
that:
“No person shall create any disturbance so as to be an annoyance to any resident or
passenger”.
The bye law as declared to be unreasonable because it could not with certainty indicate the scope
of prohibition. What constituted “annoyance” or “a disturbance” was not clear. It was therefore
unenforceable.
Unreasonableness has also been extended to:
a) Partial and unequal treatment of persons.
b) Unjust measures
c) Oppressive decisions
d) Absurdities
In Robert Vs Hopwood Court held that it was unreasonable for P.A to use its discretionary powers
regarding wages and put in place provisions that require payment of equal wages to men and
women. Similarly in Prescole Vs Birmingham Corporation, A local authority was held to been
unreasonable were he used his powers to set fares which were payable to local transport system by
allowing free travel for senior citizens.
In Re; Bukoba Gyamukhana Club, Court held that a licencing authority had acted unreasonably
where he refused a licence by considering irrelevant factors. The question of reasonableness
depends on what is acceptable in that particular society or establishment.
Activity
Discuss any provision of a law which you think is unreasonable.
Discuss any unreasonable policy of government department which is in place.
) Acting without evidence.

Public authorities are expected to exercise discretionary powers judicially, meaning they must take
into account relevant facts / evidence. Relevant facts are normally obtained by way of evidence.
Evidence is by way of testimony or submission before the relevant authority.
Discretion is not absolute and evidence available may indicate whether discretion was judicious
or not. In Peera Vs Dellasanta, the rent tribunal fixed a rent payable under it's powers given under
statute. The rent tribunal however did not indicate the basis of arriving at the rent which they fixed.
The High court overturned the decision on grounds that it was arrived at without any evidence on
record.
Similarly in Dent Vs Kiambu Liquor licencing court, one of the issues was whether the licencing
authority had acted without evidence. Court established as a matter of fact that the facts that were
relied upon to deny the applicant a licence were not adduced as evidence and not proved to exist
before the licencing authority and held that licencing authority was wrong to rely on such
allegations.
In Munene Vs R, the applicant was a medical doctor who had been charged of infamous and
disgraceful conduct before medical board. The board ordered the applicant's name to be struck off
the medical register for 2 years and applicant appealed to high court on grounds that the decision
had been based on wrong facts / allegations. The applicant was especially against the severity of
the sentence. The board had arrived at the sentence on the basis that several doctors had been
charged of the same offence. There was however no evidence to support that fact as a matter of
fact only one doctor had been charged for a similar offence. The High court reduced the severity
of the sentence because it had been arrived at without evidence.
e) Failure to give reasons.
As a general rule, P.A has no duty to give reasons for every particular decision it makes. The duty
may however arise, where a statute expressly or by implication requires reasons to be stated. In
such cases, P.A will be under a duty to give reasons for a particular decision.
Judicial authorities also suggest that mandamus may lie where a P.A fails to state reasons where
there is a duty to state reason. In cases where P.A has to choose from various options, it is normal
to state the reasons why a particular option was chosen.
Read the case of Brayhead VS Birkshire Town Council (1964) 2QB 467
f) Error on record
Where there is a mistake in the proceedings either by way of record or otherwise, the error may be
in recording evidence, assumptions of jurisdiction. An error which influences the outcome of as
particular decision may result into judicial review. Many procedures in civil law and
administration normally give room for correction of mistakes.
CASES;
Irrationality;
 Irrationality means that there is such unreasonableness in the decision taken that no
reasonable authority addressing itself to the fact and to the law would make such a decision.
In other words that decision is outrageous and defies logic and therefore cannot be allowed
to stand.
In Associated Provincial Picture Houses Vs Wednesbury Corporation court held that
public authority must act reasonably and must take into account relevant considerations.
According to Lord Greene, an unreasonable decision is one that no reasonable body could have
come to. It is not what court considers reasonable.
MARVIN BARYARUHA V ATTORNEY GENERAL MISCELLANEOUS CAUSE NO.149

OF 2016
Whether the findings and recommendations of the Commission in respect to the Applicant were
unreasonable and irrational.
Irrationality is when there is such gross unreasonableness in the decision taken or act done that no
reasonable authority addressing its mind to the facts and the law before it would have made such
a decision. Such a decision is usually in defiance of logic and acceptable moral standards. HCMC
No. 142/2018 Apiima Abel Onyancha versus KIU citing Bismillah Trading Ltd & Anor versus
KCCA HCMC No.23/2015 at page 11
The principle of irrationality is explained to mean a decision which is so outrageous in defiance of
logic or of accepted moral standards that no sensible person, who had applied his mind to the
question to be decided, could have arrived at it. HCMC No. 137/2016 Dott Services Limited &
Anor v AG at page 11 citing Council of Civil Service Union & Ors vs Minister for Civil Service
[1985] 1AC 374
Unreasonableness arises where a body has taken into account matters which ought not to be taken
into account, or conversely has refused to take into account or neglected to take into account
matters which it ought to take into account and has come to a conclusion so unreasonable that no
reasonable authority could ever come to it, in such a case, the court can interfere. See Dott Services
Limited & Anor Vs. AG at page 12 citing Re- An Application by Bukoba Gymkhana Club [1963]
EA 478 at 489
In determining the question of irrationality or unreasonableness, the court is concerned with
whether the power under which the decision maker acted had been improperly exercised or
insufficiently justified.
In considering unreasonableness, the court is not confined to simply examining the process by
which the decision maker arrived at the decision, but must consider the substance of the decision
itself to see whether the criticism of it was justified.
The courts are reluctant to interfere with the exercise of administrative discretion on the ground of
unreasonableness save where the court is satisfied that the decision is beyond the range of
responses open to a reasonable decision maker
Unreasonableness, in the Wednesbury sense, requires overwhelming evidence. It is necessary for
court to look at the evidence when considering reasonableness or rationality of the decision and
after full and proper consideration of the evidence that the court would find that the public authority
had acted unlawfully.
THUGITHO FESTO v NEBBI MUNICIPAL COUNCIL MISCELLANEOUS CIVIL
APPLICATION No. 0015 OF 2017
The applicant seeks the prerogative order of certiorari to quash decisions of the respondent taken
at its meeting of 22nd December 2016 to suspend the applicant and order him to refund certain
funds to the respondent, and order of prohibition stopping the respondent from appointing anyone
to the position of Town Clerk, a mandatory injunction order requiring the respondent to refrain
from enforcing the impugned decisions and actions consequent thereupon, a declaration that the
respondent’s actions regarding the office of Town Clerk following the suspension of the applicant
were illegal and ward of costs. At its meeting of 22nd December 2016, under Min.
COU/05/12/16/17, the respondent suspended the applicant, ordered him to refund some funds
purported to be missing and declared the office of Town Clerk vacant. The applicant contends that
he was denied his right to a fair hearing. He contends further that the respondent in taking those
decisions acted illegally since it had no disciplinary powers over him.
Hon Justice Stephen Mubiru.
Reasonableness was defined in Associated Provincial Picture Houses v. Wednesbury Corporation
[1948] 1 KB 223 where it was held:
It is true the discretion must be exercised reasonably. Now what does that mean?
Lawyers familiar with the phraseology commonly used in relation to exercise of
statutory discretions often use the word “unreasonable” in a rather comprehensive
sense. It has frequently been used and is frequently used as a general description of the
things that must not be done. For instance, a person entrusted with discretion must, so
to speak, direct himself properly in law. He must call his own attention to the matters
which he is bound to consider. He must exclude from his consideration matters which
are irrelevant to what he has to consider. If he does not obey those rules, he may truly
be said, and often is said, to be acting “unreasonably.” Similarly, there may be
something so absurd that no sensible person could ever dream that it lay within the
powers of the authority. Warrington LJ in Short v. Poole Corporation [1926] Ch. 66,
90, 91 gave the example of the red-haired teacher, dismissed because she had red hair.
That is unreasonable in one sense. In another sense it is taking into consideration
extraneous matters. It is so unreasonable that it might almost be described as being
done in bad faith; and, in fact, all these things run into one another.
In judicial review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. It is also concerned with
whether the decision falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law. Decision-makers remain free to take whatever decision they deemed
right in their conscience and understanding of the facts and the law, and not be compelled to adopt
the views expressed by other members of the administrative tribunal. “Reasonable” means here
that the reasons do in fact or in principle support the conclusion reached.
When reviewing a decision of an administrative body on the reasonableness standard, the guiding
principle is deference. Reasons are not to be reviewed in a vacuum; the result is to be looked at in
the context of the evidence, the parties’ submissions and the process. Reasons do not have to be
perfect. They do not have to be comprehensive. That is, even if the reasons in fact given do not
seem wholly adequate to support the decision, the court must first seek to supplement them before
it seeks to subvert them. For if it is right that among the reasons for deference is the appointment
of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute,
its expertise, etc. the concept of “deference as respect” requires of the court’s respectful attention
to the reasons offered or which could be offered in support of a decision and not submission. The
fact that there may be an alternative decision to that reached by the tribunal does not inevitably
lead to the conclusion that the tribunal’s decision should be set aside if the decision itself is in the
realm of reasonable outcomes. On judicial review, a judge should pay “respectful attention” to the
decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome
by designating certain omissions in the reasons to be fateful.
To justify interference by court without delving in the merits, the decision in question must be so
grossly unreasonable that no reasonable authority, addressing itself to the facts and the law would
have arrived at such a decision. In other words such a decision must be deemed to be so outrageous
in defiance of logic or acceptable moral standards that no sensible person applying his mind to the
question to be decided would have arrived at it. It is opined by De Smith, Woolf and Jowel in
their Judicial Review of Administrative Action, Fifth Edition (pp.594-596) that it is “a principle
requiring the administrative authority, when exercising discretionary power to maintain a proper
balance between any adverse effects which its decision may have on the rights, liberties, or
interests of persons and the purpose which it pursues”. This principle, as reviewed by the Courts
in cases such as R (Daly) v. Secretary of State for Home Department [2001] 2 AC 532,
encompasses any or all of the following tests:
i. The balancing test, which requires a balancing of the ends which an official decision
attempts to achieve against the means applied to achieve them. This requires an
identification of the ends or purposes sought by the official decisions. In addition it
requires an identification of the means employed to achieve those ends, a task which
frequently involves an assessment of the decision upon affected persons.
ii. The necessity test which requires that where a particular objective can be achieved by
more than one available means, the least harmful of these means should be adopted to
achieve a particular objective. …this aspect of proportionality requires public bodies
to adopt those regulatory measures which cause minimum injury to an individual or
community.
iii. The suitability test requires authorities to employ means which are appropriate to the
accomplishment of a given law, and which are not in themselves incapable of
implementation or unlawful.
In the instant case, the facts disclose that the respondent invoked section 80 (1) of The Public
Finance and Management Act, 2015, which as explained before required prior inquiry into the
circumstances by the Minister of Finance, proof of such loss or deficiency as a fact and that it was
caused by or contributed to by the negligence or misconduct of the applicant. A decision taken in
absence of any of those pre-requisites fails the tests of reasonableness. Such a decision does not
fall within a range of possible, acceptable outcomes which are defensible in respect of the facts
and law. The decision is so grossly unreasonable that no reasonable authority, addressing itself to
the facts and the law would have arrived at such a decision. In the circumstances, the court has to
intervene by declaring the respondent’s decision requiring the applicant to remain out of office
until he recovers the sum of shs. 38,360,000/= as unreasonable.
TUSIIME DOREEN v KAMPALA CAPITAL CITY AUTHORITY CIVIL

MISCELLANEOUS CAUSE NO. 276 OF 2016
Irrationality; According to the case of John Jet Tumwebaze Vs Makerere University Council &
Ors CA No.78 of 2005 it was held that irrationality is when a decision made is so outrageous in its
defiance of logic or acceptable moral standards that no person could have arrived at that decision.
LAMWAKA ALICE VERONICA V AMURU DISTRICT LAND BOARD & GULU

UNIVERSITY MICELLANEOUS CIVIL CAUSE No. 0131 OF 2012
The limits within which courts may review the exercise of administrative discretion were stated in
Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1947] 2 ALL ER 680:
[1948] 1 KB 223, which are;- (i) illegality: which means the decision-maker must understand
correctly the law that regulates his decision making power and must give effect to it. (ii)
Irrationality: which means particularly extreme behaviour, such as acting in bad faith, or a decision
which is “perverse” or “absurd” that implies the decision-maker has taken leave of his senses.
Taking a decision which is so outrageous in its defiance of logic or accepted moral standards that
no sensible person who had applied his mind to the question to be decided could have arrived at it
and (iii) Procedural impropriety: which encompasses four basic concepts; (1) the need to comply
with the adopted (and usually statutory) rules for the decision making process; (2) the common
law requirement of fair hearing; (3) the common law requirement that the decision is made without
an appearance of bias; (4) the requirement to comply with any procedural legitimate expectations
created by the decision maker.
DOTT SERVICES LIMITED & Anor v ATTORNEY GENERAL MISCELLANEOUS

CAUSE NO. 137 OF 2016
This is an application for Judicial Review of the findings and recommendations of the Commission
of Inquiry into allegations of mismanagement, abuse of office and corrupt practices in Uganda
National Roads Authority (UNRA) in so far as the findings affect the applicants seeking orders of
certiorari and prohibition.
The grounds of the application are briefly set out in the application and in the affidavit in support
of the application. In summary they are that the commission acted unfairly when they denied the
applicants a chance to submit their evidence, that the commission acted illegally when it refused
and failed to follow the terms of the contract between the applicants and UNRA, that the
commission’s findings and recommendations were irrational because they sought to punish the
applicants for the shortcomings and failures of the UNRA officials and consultants, that the
applicants applied to the respondents for a copy of the commission’s report but the respondent
refused to avail a copy and lastly that if the orders sought in this application are not granted the
applicants shall suffer irreparable economic loss and will wind up their businesses therefore it is
fair and just that this application be granted.
HELD;
Whether the findings and recommendations of the commission of inquiry were irrational?
that Lord Diplock in the House of Lords Decision of Council of Civil Service Unions & Ors Vs
Minister for Civil Service [1985]1 AC 374 defined irrationality to mean a decision which is so
outrageous in defiance of logic or of accepted moral standards that no sensible person who had
applied his mind to the question to be decided could have arrived at it.
Re - An Application by Bukoba Gymkhana Club [1963] EA 478 at page 489 per Reide J where
it was held that where a body has taken into account matters which ought not to take into account,
or conversely, has refused to take into account or neglected to take into account matters which it
ought to take into account and has come to a conclusion so unreasonable that no reasonable
authority could ever have come to it, in such a case, the court can interfere.
Court agreed entirely with the submissions of learned counsel for the applicants. I have perused
the Commission’s Report and I have not found any evidence of bribery, connivance or collusion.
All that was before the Commission was mere suspicion and no hard evidence to show that the
applicants influenced the decision making processes in the UNRA. The Commission’s
recommendations as against the applicants were therefore speculative, in error and therefore
irrational. Had the commission allowed the applicants’ representative to effectively explain in
fairness all the alleged roles they played in the alleged losses some of which have been explained
in the affidavit of Mr. Rao, then may be, the commission would have had access to the information
disclosed by the applicants in this application.
Prayers granted;
PAUL KIHIKA v THE ATTORNEY GENERAL & THE INSPECTOR GENERAL OF

GOVERNMENT MISC. CAUSE NO. 120 OF 2012
HELD;
Irrationality is defined by Diplock J as follows:-
“By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury

unreasobleness’ (see Associated Provisional Picture Houses Ltd Wednesbury Corp [1947]2 ALL
ER 680, [1948]1 KB 223). It applies to a decision which is outrageous in its defiance of logic or
of accepted moral standards that no sensible person who had applied his mind to the question to
be decided could have arrived at it. Whether a decision falls within this category is a question that
judges by their training and experience should be well equipped to answer, or else there would be
something badly wrong with our Judicial System. To justify the courts’ exercise of this role, resort
I think today is no longer needed to viscount Radliffs ingenious explanation in Edwards (Inspector
of Taxes) Vs Bairstow [1955]3 ALL ER [1956] AC 14 of irrationality as a ground for court’s
reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the
decision maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which
a decision may be attacked by Judicial Review. (emphasis added).
In my view the impugned decision of the IGG cannot be described as ‘outrageous in its defiance
of logic’ without indulging into the merits of the decision which as I have already stated is beyond
the scope of Judicial Review. The IGG was faced with a scenario where the applicant is
substantially employed as Principal Assistant Secretary in the Ministry of Gender where he has no
function but continues to draw a salary and is paid by the UBC where he has no substantive
appointment. The decision that the applicant should only earn a salary where he is substantially
employed with the explanations given for this decision cannot be described as irrational given the
definition given by Diplock J.
NATURAL JUSTICE
Administrative law developed to play 2 major roles in public administration.
1. To promote efficiency in administration.
2. To promote the rights of individuals in society by checking the abuse of power.
It is therefore important that in running public affairs efficiently, public authorities should have
due regard to individual rights. Administrative law has therefore developed a number of safeguards
against the possible abuse of power. An individual who is aggrieved or likely to be detrimentally
affected by an administration action may obtain redress for his / her grievance and forestall any
injustice likely to be done using various methods provided under the law.
Brief background
Natural justice is a legal philosophy used in some jurisdictions in the determination of just, or fair,
processes in legal proceedings. It is sometimes taken as a process of rational logical deduction.
The concept is very closely related to the principle of natural law (Latin expression of jus naturale)
which has been applied as a philosophical and practical principle in the law in several common
law jurisdictions, particularly the UK and Australia. According to Roman law certain basic legal
principles are required by nature, or so obvious that they should be applied universally without
needing to be enacted into law by a legislator. The rules or principles of natural justice are now
regularly applied by the courts in both common law and Roman law jurisdictions. Natural justice
operates on the principles that man is basically good, that a person of good intent should not be
harmed, and one should treat others as one would like to be treated.
Definition and principles
Natural justice may be simply defined as the natural sense of what is right and wrong. It has also
been referred to as fair play in action. (Ridge v Baldwin) It has been recognised since time
immemorial that delegation of functions is accompanied with designed procedures to reconcile
administration needs with safeguards for the individuals; this entails among others principles of
natural justice.
In Local Government Board Vs Arlidge [1915] AC 120, House of Lords held that the common
law rules of natural justice required little more from a department than the carrying out in good
faith of its usual procedures. The brief facts of this case were that a Hampstead council had made
a closing order in respect of a house which appeared unfit for human habitation. The owner
appealed to the local government board as prescribed by the housing and town planning Act. A
public inquiry was held which confirmed the closing order. Arlidge applied to court contending
that the decision was invalid because the board did not disclose which official actually decided the
appeal. That Arlidge had not been heard orally by that official and had not seen a report of the
inspector who conducted the inquiry.
While rejecting the contention, the House of Lord held that parliament having entrusted judicial
duties to the executive body, must be taken to have intended to follow the procedure which was
its own and was necessary if it was capable of doing its work efficiently. So long as the officials
dealt with the question referred to them without bias and gave parties adequate opportunity of
presenting the case, the board could follow its own established procedures even though there not
of court of law.
The right to a hearing in accordance with the rules of natural justice may be expressly provided
for or the courts may imply such an obligation exists under common law.
There are essentially two sections to the rules of natural justice; the first being derived from the
Latin maximum "Audi alteram partem" (let the other side be heard). This is the duty of to allow
persons affected by a decision to have a reasonable opportunity of presenting their case. The
essence of this principle is that in certain contexts, prior to a decision being taken in the exercise
of statutory power which may adversely affect the interests of individuals, those individuals should
be alerted to the fact of, and the reasons for, the impending decision or action, and be permitted
reasonable opportunity to make representations.
The second part of the rules of natural justice is derived from the Latin maxim "nemo judex in
causa sua" (no one can be the judge in his own cause). The essence of this principle is to disqualify
persons having an interest in a matter over which they are presiding, or in respect of which there
may be an appearance of bias, from taking certain types of decisions, thus rendering void such any
decision taken in breach of the principle of natural justice. This gives rise to a duty to act fairly, to
listen to arguments, and to reach a decision in a manner that is untainted by bias.
According to A. de Smith in his book Judicial Review of Administrative Action, "...The
governing principle ought to be that authorities empowered to make decisions that are seriously
detrimental to the liberty, proprietary rights, livelihood, status or reputation of individuals should
be required to give prior notice and opportunity to be heard to those who are directly affected,
except where the imposition of such duties would be impracticable or manifestly contrary to the
public interest or Parliamentary intent..."
It should be noted that the principle of natural justice has been embedded in the 1995 Constitution
of the Republic of Uganda and its one of the non derogable rights.
Art. 42 of the 1995 Constitution 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 / her. This is fortified by Art 28
of the 1995 constitution, which provides for a right to a fair hearing. It provides that in the
determination of civil rights and any obligation, or in criminal matter a person shall be given a fair,
speedy and fair hearing before an independent tribunal established by law.
Accordingly, Article 44 of the Constitution provides inter alia that notwithstanding anything in
the Constitution, there shall be no derogation from the enjoyment of the right to fair hearing.
The duty to act fairly represents the standard of procedural administrative justice with which they
will require compliance. In the words of Megarry V-C in McInnes V Onslow Fane [1978] 3
ALLER 211 at 219, ‘…if one accepts that ‘natural justice’ is a flexible term which imposes
different requirements in different cases, it is capable of applying to the whole range of situations
indicated by the terms such as ‘judicial’, ‘quasi-judicial’ and administrative.’
As a result, judicial review may be instituted on grounds of denial of natural justice and in such
cases the court will mainly get concerned with the procedure by which the administration authority
reached a particular decision. The principles / rules of natural justice have there origin in common
law but they have also been codified under various statutes.
THE RIGHT TO NATURAL JUSTICE ANALYSED
A fair hearing
The principle of natural justice is expressed in Latin as “audi alteram partem” which is translated
as “hear the other side." Elaborate rules have been laid down to ensure that a party to any
proceedings can be heard. In Grimshaw V Dunbar 1 Q.B 408 at 416, Jenkins L.J said,
‘‘…a party to an action is prima facie entitled to have it heard in his presence; he is entitled to
dispute his opponent’s case and cross-examine his opponent’s witnesses and his own evidence
before court. …that a litigant who is by mischance or accidentally absent the common justice
demands that he/she should be allowed to come to the court and present his case.’’
Generally it means that no body shall be penalised by a decision of an administrative authority or
tribunal unless he / she has been given fair opportunity to answer the case against him / her and to
put his / her own case.
In Annebrit Aslund Vs Attorney General HC Miscellaneous cause No. 441 of 2004, the
applicant who was an employee of URA appeared and testified before the commission of inquiry
into allegations of corruption in U.R.A over which lady justice sebutinde had made a report and
submitted to the Minister of finance and economic development. The application for judicial
review was brought under section 3 of the Judicature (Amendment) Act No. 3 of 2002. The
applicant claimed that the lady justice made baseless, biased and false findings that the applicant
was incompetent to head a big financial institution like U.R.A and prayed court to grant a
declaration that the sebutinde report is a nullity, an order of certiorari removing the report into the
High court in order to quash it and expunge it from archives of public records and an injunction
prohibiting any officer from taking action based on the report. At the hearing three points were
raised by counsel for the respondents, that the High court was not clothed with jurisdiction to grant
the orders sought, that the application was misconceived for want of locus.
The court held as follows,
• That in this case the very fact that the commission of inquiry Act, Cap 166 states that in a few
instances, summoning witnesses, the commission was to exercise the powers of the High Court,
shows that in other aspects the Commission could not be equated to the High Court even when
presided over by a High court judge. A tribunal appointed under the commission of inquiry Act,
is an inferior Court within the meaning of rule 1 (2) Order XLII A of the Civil Procedure Rules
and subject to the control of the High court through such writs as mandamus, certiorari and
prohibition.
• Held that a cause of action is the fact or combination of facts that give rise to the right of action.
The operational words of section 3 of the Judicature (Amendment) Act No. 3 of 2003 are ‘any
proceedings or matter’ which terms are wide enough to include proceedings and report of the
commission of inquiry. They do not restrict the cause of action to a final enforceable decision,
therefore a remedy for judicial review is concerned not with the decision of which review is sought
but with the decision making process. In this case, the application does not confine itself to the
relief of certiorari but also seeks a declaration and an injunction.
• Held that locus standi refers to the right to be heard in court or other proceedings. The applicant
was granted leave to apply for review. Under Order XLIIA of the Civil Procedure Rules, the court
is not to grant leave unless it considers that the applicant has sufficient interest in the matter to
which the application relates.
• Held that in the instant case there had been breach of the rules of Natural justice and procedure.
Further, in Ridge Vs Baldwin (1964) AC 40 the plaintiff had (chief constable of Brighton) had
been prosecuted and acquitted on charges of conspiracy to obstruct the course of justice. The
Brighton watch committee which was responsible for enforcing discipline in the police force
purported to dismissed the plaintiff from his post, without giving him any prior notice or hearing
and applied to court contending that his dismissal was invalid. Court held that the decision was
void due to breach of the principles of natural justice. Lord Reid stated that ‘…the principle of
audi alteram partem goes back many centuries in our law…an officer cannot lawfully be dismissed
without first telling him what is alleged against him and hearing his defense or explanation.’
NB. Importance of the above case
• The significance of Ridge V Baldwin is that it helped to free both the substantive rules of natural
justice from strict limitations which had been imposed in earlier decisions, in particular from the
requirement that the decision-making body must be under a duty to act judicially and also the
remedy of certiorari.
The decision in the case may be compared with that in Nakkuda Ali V Jayaratne [1951] AC 66
(in this case the privy council had held that the controller of textiles in Ceylon had no duty to act
judicially in exercising his power to revoke licences to deal in textiles, this was because at that
time, certiorari could only lie against agencies which were under a duty to act judicially), which
was disapproved in Ridge V Baldwin. The House of Lords made it clear that this duty to ‘act
judicially’ arose directly from the power of an agency to ‘determine questions affecting the rights
of subjects’, i.e. the potential effect of the exercise of the power on the citizen’s interests, generates
both audi alteram partem obligation and also the applicability of certiorari.
• The application of the rules of natural justice to cases involving dismissal from employment has
been extended since Ridge V Baldwin and has now become a rule of general application.
• The requirements of a fair hearing depend on all circumstances. They include; a right to notice,
but restrictions may be placed where public interest so requires, the right to legal representation or
make representations, whether in writing or orally and where an oral hearing is held, the right to
comment on any evidence presented, where evidence is given orally by witnesses, the right to put
questions to those witnesses.
In Kaggwa Andrew V Minister of Internal Affairs HC Misc. Application No. 105 of 2002, court
held that the Minister’s decision would be quashed for the applicant had not been granted a fair
hearing, that this violated the principle of natural justice.
In Cooper Vs The Wandsworth port of works (1863), the port of Worth demolished the
plaintiff's house without giving him prior notice or an opportunity to make representations on his
own behalf. The plaintiff's action succeeded and he obtained damages for trespass. The court
emphasised that even where the statute applicable, doesn't specifically provide for notice or for an
opportunity to be heard a public authority is under a duty to apply the rule of natural justice.
In John Bosco Oryem V Electoral Commission and UNEB, it was held that quasi judicial bodies
have functions akin to a court or an arbitrator. That ‘if interests of an individual are going to be
affected, he must be given a hearing. Where quasi-judicial functions have to be exercised by a
board or anybody of persons, it is necessary and essential that they must always give a fair
opportunity to those who are parties in the controversy to correct or contradict any relevant
statements prejudicial to their case. Both sides have a right to be heard and a decision in breach of
the principles of natural justice is void.’
In Eng. Pascal R. Gakyaro Vs Civil Aviation Authority CACA No. 60/2006, Court of Appeal
observed that the principles of natural justice demanded that he be given an opportunity to be heard
in his defense for whatever worth it might be. That the overall effect of a denial of natural justice
to an aggrieved party renders the decision taken void and of no effect.
In United Reflexologists of Uganda v Stephen Malinga and Anor, the minister of Health banned
the practice of reflexology in Uganda. He claimed that the banning was done in public interest to
protect and promote the health of the peoples of Uganda. The applicants claimed they were never
given a fair hearing. It was held that whereas a minister can act in the public interest that doesn’t
mean that those affected by his decision do not have a right to be heard and should be grouped
together with those who abuse the law.
This case is very relevant in the promotion of the principles of natural justice as it was to the effect
that the public interest does not trample the right to be heard as a principle of natural justice. As
such, the order of certiorari was granted quashing the Minister’s decision.
In Prof Isaiah Omolo Ndiege v Kyambogo University, the applicant claimed the recommendation
by the university council of his removal from office, and sending him on forced leave indefinitely
before he was given a fair hearing was against the principles of natural justice. The judge granted
orders of judicial review of certiorari, mandamus and prohibition by holding that, the respondent
University Council recommended the removal of the applicant from office without giving him a
fair hearing and the subsequent decisions to keep him out of office on forced leave indefinitely
were unfair, unreasonable and unjustifiable.
In Denis Bireije v Ag, the applicant was removed from office on allegations of serious misconduct,
abuse of office and engaging in corrupt tendencies among others. The applicant sought a
declaration against the Solicitor General and his minister that his removal was for no cause, null
and void and an order that he resumes his office. He submitted that he was never warned ,
reprimanded or subjected to any disciplinary proceedings before being removed from office.
Justice Okumu Wengi held that the decision maker must act in accordance with the law, fairly and
reasonably, an administrative action will be subjected to judicial control for illegality, irrationality
and procedural impropriety. That the removal of the applicant from office without the chance to
defend himself breached the cardinal rules of natural justice and therefore granted the order for
certiorari, to quash the decision and a declaration that the applicant was free to resume his office.
In Bwowe Ivan and Ors v Makerere University. The applicants were students of the respondent
university who were suspended for participating in a strike in protest about a fees payment policy.
They applied for orders of judicial review of orders of certiorari, mandamus prohibition and
declarations. They contended that they were not afforded a fair hearing and that the disciplinary
committee in reaching its decision acted with irrationality, procedural impropriety and was biased.
It was held that the applicants right to a fair hearing was violated as they were charged under rules
which had not been publicised, they were served with sermons on the same day as the committee
sat to try them and hence lacked sufficient time to seek legal representation and to prepare
adequately for their defence. That the committee was biased as it was influenced by the vice
chancellors comments in the media that some students would go home, by the presence of the dean
of studies on the committee and also by participation of police security officers during the
disciplinary committee. That the applicants were not given an opportunity to cross examine their
accusers. As a result the decisions of the disciplinary committee were quashed and orders sought
by applicants were granted.
The above case is of great relevance towards the promotion of the concept of natural justice. In his
ruling judge Benjamin Kabiito stated that the right to a fair hearing is a right protected and
promoted as a fundamental right and freedom under article 28 of the constitution. He went further
and gave the universal principles for a right to a fair hearing which include prior notice, right to
adjournment, cross examination, legal representation, and disclosure of information.
The case of Bwowe further emphasised that a decision arrived at in disregard of the rules of natural
justice is null and void ab intio. The decisions of the disciplinary committee in respect to the
applicants were declared null and void ab initio
Contents of a right to a fair hearing

Bwowe Ivan and Ors v Makerere University, in his ruling judge Benjamin Kabiito stated that the
right to a fair hearing is a right protected and promoted as a fundamental right and freedom under
article 28 of the constitution. He went further and gave the universal principles for a right to a fair
hearing which include prior notice, right to adjournment, cross examination, legal representation,
and disclosure of information. The case of Bwowe further emphasised that a decision arrived at in
disregard of the rules of natural justice is null and void ab initio.
In ALEX METHODIOUS BWAYO v DFCU BANK LIMITED court stated its view to be
that , the basics of a right to be heard must of necessity include;
1) Notice of allegations against the employee to be served on him within reasonable time
to allow him prepare his defence.
2) The notice has to set out clearly what allegations against the plaintiff are and what his
rights are at the oral hearing. Such rights would include the right to respond to the
allegations against him orally or in writing; the right to be accompanied at the hearing and
the right to cross-examine the defendant’s witnesses or call witnesses of his own. The
plaintiff should be given a chance to appear and present his case before an impartial
committee in charge of disciplinary issues of the defendant.
Court laid down some principles in Juma & Others Vs Attorney General [2003] EA 461, which
was relied on with approval in Isaac Nsereko Vs MTN HCCS No. 156 of 2012; that;
“……. It is an elementary principle in our system of the administration of justice that a fair
hearing, within a reasonable time, is ordinarily a judicial investigation and listening to evidence
and arguments, conducted impartially in accordance with the fundamental principles of justice
and due process of law of which a party has had reasonable motion as to the time, place, and
issues or charges, for which he has had a reasonable opportunity to prepare, at which he is
permitted to have the assistance of a Lawyer of his choice as he may afford and during which
he has a right to present his witnesses and evidence in his favour, a right to cross-examine his
adversary’s witnesses, a right to be appraised of the evidence against him in the matter, so that
he will be fully aware of the basis of the adverse view of him for the judgment, a right to argue
that a decision be made in accordance with the law and evidence.
1. Notice must be given in adequate terms so that the prospective victim knows the essence
of the case he has to meet and can prepare his answer properly. In Desouza Vs Tanga
Town council, court held that notice should include the substance of the allegations of the
charge and it must specify the time and place where the hearing is to take place.
In Kampala University V National Council For Higher Education it was HELD that the right
to be heard is sacrosanct and none derogable under Article 28 (1) and 44 (C) of the Constitution
of Uganda. It has been decided over again by this court to this effect. It is now settled that it a
fundamental principle of justice and procedural fairness that no person is to be condemned
unless that person has been given prior notice of the allegations made against him or her, and
a fair opportunity to be heard. It is apparent that the rule of natural justice obliges an adjudicator
faced with the task of making a choice between two opposing stories to listen to both sides. He
should not base his decision only on hearing one side. Therefore where a prejudicial decision
has been made by a public authority in the course of exercise of its statutory authority without
according the affected party a right to be heard then it has to be quashed.
2. The parties must be given the opportunity to adequately present their case. This includes the
right to have the matter adjourned if injustice would otherwise.
In Kanda Surinder Singh Vs Government of Malaysia (1962) , Lord Denning stated “if the
right to be heard is to be real right which is worth anything, it must carry with it a right in the
accused man to know the case which is made against him. He must know what evidence has been
given and what statements have been made affecting him and then he must be given a fair
opportunity to correct or contradict them." See also In Re M an infant (1968) I WLR I 1897.
2. The administrative authority has a duty to afford an oral hearing but in some cases
representations may be made in writing.
In Chief Constable of the North Wales Police V Evans [1982] 1 WLR 1155 HL, the Chief
constable of North Wales decided that Evans, a probationer constable in the force, should be
required to resign or, if he refused, be discharged from the force. Evans resigned but subsequently
challenged the decision on the ground that it was taken in breach of natural justice because he was
not given an opportunity to offer any explanation. The House of Lords agreed with the decision of
Court of Appeal that there had been a breach of natural justice, but in the light of comments made
in the Court of Appeal, felt it necessary to make some comments on the scope of judicial review.
R Vs Local government Board Exparte Arlidge (1914) I KB 160
R Vs Immigration tribunal Exparte Mehmed (1977) I WLR 795
4. It also includes allowing all witnesses to be called to their respective parties and giving each
party to cross examine each party's witness. In Ceylon University Vs Fernando (1960) I WLR
223, Supreme Court held that failure to afford audience or allow witnesses to be questioned / cross
examined breached the principles of natural justice and therefore the report of the chancellor was
null and void.
In Dent V Kiambu Liquor licensing Court [1968] EA 80, while noting that licensing courts were
not mere executive bodies buts courts from which an appeal would lie to the High Court and must
be conducted in a manner appropriate to judicial tribunals, held that this requires that there is a
requirement of production of proof of any matter referred to in evidence on oath or affirmation
upon which the opposing party may put questions in cross-examination.
In R V Board of Visitors of Hull Prison, exparte St Germain [1979] 1 WLR 1401, in this case,
following a riot in Hull prison in 1976, numerous charges of breaches of the prison rules were
heard by the prison’s board of visitors. During the hearing, reference was made to a number of
statements by prison officers, who were not available to give evidence, to support the evidence
given by a witness. Seven of the prisoners who were found guilty of the offences against prison
discipline sought an order of certiorari on grounds that the proceedings before the board of visitors
breached the rules of natural justice, to wit, that hearsay evidence was taken into account. While
acknowledging that it is common ground that the board of visitors should base its decisions on
evidence, the issue that arose was such evidence was restricted to that which was admissible in a
criminal court of law?
Geoffrey Lane LJ held that there was no restriction. (This view was also expressed by the Privy
Council in Ceylon University V Fernando [1960] 1WLR 223 at 234). The lord justice stated that,
it is the entitlement of the board to admit hearsay evidence is subject to the overriding obligation
to provide the accused with a fair hearing. That depending upon the particular facts of a case and
the nature of the hearsay evidence provided to the board, the obligation to give the accused a fair
chance to exculpate himself, or a fair opportunity to controvert the charge or a proper or full
opportunity of presenting his case and may oblige the board not only to inform the accused of the
hearsay evidence but also to give the accused a sufficient opportunity to deal with that evidence.
Further, that depending on the nature of the evidence and the particular circumstances of the case,
a sufficient opportunity to deal with the hearsay evidence may well involve cross-examination of
the witnesses whose evidence is initially before the board in the form of hearsay. Accordingly,
court quashed the findings of guilt based on hearsay evidence by the order of certiorari.
5. Means that all relevant information from whatever source it may come should be disclosed to a
person who may be prejudiced by its concealment.
However, does the kind of evidence admissible have any limits? In R Vs Deputy industrial
injuries commissioner Exparte Moore (1965) I QB 456, at 488 Diplock LJ stated that, ‘technical
rules of evidence, however, form no part of the rules of natural justice. The requirement that a
person exercising quasi-judicial functions must base his decision on evidence means no more than
it must be based upon material which tends logically to show the likelihood or unlikelihood of the
occurrence of some future event the occurrence of which would be relevant. It means that he must
not spin a coin or consult an astrologer, but he may take into account any material which, as a
matter of reason, has some probative value in the sense mentioned above, the weight to be attached
to it is a matter for the person to whom parliament has entrusted responsibility of deciding the
issue.
In R V Army Board of the Defence Council, exparte Anderson [1991] 3 W.L.R 42, in this case
the applicant was a former soldier who alleged that he had been subjected to forms of racial abuse
which caused him to go absent without leave. The papers relating to the complaint were seen
separately by two members of the army board who reached individual conclusions that, although
there was some truth in the applicant’s claim, there was no basis for making an apology to him or
awarding him compensation. The applicant’s request for disclosure of documents relating to
investigations into his complaint was refused, as was his request for an oral hearing. He applied
for judicial review. Taylor LJ. Stated that a body required to consider and adjudicate upon an
alleged breach of statutory rights and to grant redress when necessary seems to be exercising an
essentially judicial function and as such is required to follow the rules of natural justice. While
refuting the submission of defendant’s counsel that the Army board’s duty of fairness required no
more than that it should act bona fide, not capriciously or in a biased manner, and that it should
afford the complainant a chance to respond to the basic points put against him, noted that the Army
board was bound by its procedures achieve a high standard of fairness more than it had asserted.
The Lord Justice laid down the principles as follows;
• There must be a proper hearing of the complaint in the sense that the board must consider
a single adjudicating body, all the relevant evidence and contentions before reaching its
decisions. That it is unsatisfactory that the members should consider the papers and reach
their individual conclusions in isolation and, perhaps as here, having received the
concluded views of another member.
• That a hearing does not necessarily have to be an oral hearing in all cases. There is ample
authority that decision-making bodies other than courts and bodies whose procedures are
laid down by statute are masters of their own procedure. Provided that they achieve the
degree of fairness appropriate to their task it is for them to decide how they will proceed
and there is no rule that fairness always requires an oral hearing.(re-stated in Local
Government V Arlidge [1915] AC 120 at 132-133 and Selvarajan V Race Relations Board
[1975] 1 WLR 1686 at 1694). That whether an oral hearing is necessary will depend upon
the subject matter and circumstances of the particular case and upon the nature of the
decision to be made. That it will also depend upon whether there are substantial issues of
fact which cannot be satisfactorily resolved on the available written evidence. That this
does not mean that, whenever there is a conflict of evidence in the statements taken, an oral
hearing must be held to resolve it.
• The opportunity to have evidence tested by cross-examination is to be observed. But in
this case, it was within the discretion of the army. The discretion whether to allow it will
usually be inseparable from the decision whether to have an oral hearing. That the object
of the latter will be to enable witnesses to be tested in cross-examination, although it would
be possible to have an oral hearing simply to hear submissions.
• That whether oral or not, there must be what amounts to a hearing of any complaint. That
in this case it meant the Army board had to give such a complaint investigated, consider
all the material gathered, give the complainant an opportunity to respond to it and consider
his response. However an issue arose as to what was the obliged to disclose to the
complainant to obtain his response? That was it sufficient to indicate the gist of the any
material adverse to his case or should he be shown all the material seen by the board? The
Lord Justice held that the complainant should be shown all the material seen by the board,
apart from any documents for which public interest immunity can be properly claimed. The
board was not making an administrative decision requiring it to consult interested parties
and hear their representations. It had the duty to adjudicate on a specific complaint of
breach of a statutory right. Except where public interest immunity is established, there is
no reason why on such adjudication the board should consider all material withheld form
the complainant. In this case, the complainant was only shown part of the materials and
court held that this hampered his response due to lack of full information and thus breached
rules of natural justice.
6. Right to legal representation

- Pett Vs Greyhound Racing Association Ltd (1970) I KB 46
In Enderby Town Football Club Ltd Vs The Football Association Ltd (1970) 3 WLR 1021,
Court held that denial of legal representation is not necessarily breach of natural justice. Lord
Denning MR. at 607 stated thus, ‘Seeing that courts can inquire into the validity of the rule, the
question is; is it lawful for the body to stipulate in its rules that its domestic tribunal shall not
permit legal representation? Such a stipulation is, I think, clearly valid so long as it is construed as
directory and not imperative: for that leaves it open to the tribunal to permit legal representation
in an exceptional case when the justice of the case so requires. But I have some doubt whether it
is legitimate to make a rule which is so imperative in its terms as to exclude legal representation
altogether, without giving the tribunal discretion to admit it, even when the justice of the case so
requires.’
Regarding the legal representation the reviewing court will normally establish procedure, the
practice adopted by the tribunal or authority whose decision is reviewed. Thus, where it has been
allowing legal representation, it should do so for every body but where it has not been doing so,
the denial won't amount to breach of natural justice.
7. Although not established by any legal authority, it has been recommended that a right to a fair
hearing includes disclosure of the relevant in formation to the party that would be affected by the
decision. (per Wade; 6th edition; pages 547-50).
R Vs Industrial injuries commissioner .Exparte Moore ( 1965) 1 QB 456
In Ridge Vs Baldwin, Lord Reid stated that before attempting to reach any decision, they should
inform the person of the grounds upon which they propose to act and give him an opportunity of
being heard in his own defense.
In Byrne Vs Kinematograph Reuters Society [1958]1 W.L.R 762, Harman J stated requirements
of natural justice as a person accused should know the nature of the accusation made and should
be given opportunity to state his case and that the tribunal should act in good faith.
Suffice to note that there is no strict specific procedure laid down to be followed under natural
justice while carrying out administrative duties and functions, but the requirements of fairness
depend on the facts of each case. The question that arises is, what then, are the criteria by which
to decide the requirements of fairness in any proceeding? Authoritative guidance as to this was
given by Lord Bridge in Lloyd V McMahon [1987] AC 625 at 702, where he said, ‘…the rules
of natural justice are not engraved on tablets of stone. What the requirements of fairness demand
when any body, domestic, administrative or judicial, has to make a decision which will affect the
rights of individuals depends on the character of the decision making body, the kind of decision it
has to make and the statutory or other framework in which it operates. In particular, it is well
established that when a statute has conferred on any body the power to make decisions affecting
individuals, the courts will not only require the procedure prescribed by the statute to be followed,
but will readily imply so much and no more to be introduced by way of additional procedural
safeguards as will ensure the attainment of fairness.’
Circumstances under which the right to a fair hearing may be excluded

The right to a fair hearing is not absolute in administrative proceedings and may be excluded in
the following cases;
1. Where factors such as urgency come into play e.g. urgent action may be needed to safeguard
public health/ safety in the case of White Vs Redfern (1879) 5 QB 15. The right to a fair hearing
was excluded where there was agent need to protect public health and destroy bad food that was
exposed for sale.
2. It may be excluded where considerations of national security must be taken into account. This
should be considered in light of Article 43 of the Constitution. It provides inter alia that, in the
enjoyment of the rights and freedoms prescribed in the constitution, ‘no person shall prejudice the
fundamental or other human rights and freedoms of others or the public interest. It states further
that public interest under this article shall not permit political persecution; detention without trial
and that any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter
beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what
is provided in this Constitution.
In Council of Civil Service Unions Vs Minister for the Civil Service (1895) AC 374, the facts
of this case were as follows; the Government communications headquarters(GCHQ), a branch of
the civil service responsible for the security of the UK military and official communications and
the provision of signals intelligence for the government. Since its formation all the staff had been
permitted to belong to trade unions. There was an established practice of consultation between the
management and the civil service unions at GCHQ. Following incidents of industrial action at
GCHQ the Minister for civil service, the Prime Minister, issued an oral instruction to the effect
that the terms and conditions of civil servants at the GCHQ should be revised to exclude
membership of any trade union other than a departmental staff association approved by the
Minister. The union applied for judicial review, seeking a declaration that the Minister had acted
unfairly in removing their fundamental right to belong to a trade union without consultation. The
case was ruled in favour of the applicants and the Minister appealed to the Court of Appeal which
allowed his appeal and the appellants appealed to the House of Lords.
Having held that the courts have power to review the exercise of a power delegated to the decision-
maker under the royal prerogative, Lord Fraser of Tullybelton stated that, the respondent’s case
is that she deliberately made the decision without prior consultation because prior consultation
‘would involve a real risk that it would occasion the very kind of disruption at GCHQ which was
a threat to national security and which it was intended to avoid.’ That the ‘question is one of
evidence. The decision on whether the requirements of national security outweigh the duty of
fairness in a particular case is for the Government and not for courts; the Government alone has
access to the necessary information, and in any event the judicial process is unsuitable for reaching
decisions on national security. But if the decision is successfully challenged, on ground that it has
been reached by a process which is unfair, then the Government is under an obligation to produce
evidence that the decision was in fact based on national security.’’ The lordship concluded that in
this particular case the respondent had shown that her decision was one which not only could
reasonably have been based, but was in fact based, on considerations of national security, which
outweighed what would otherwise have been the reasonable expectation on that on the part of the
appellants for prior consultation.’
In R V Secretary of state for the Home Department, exp Hosenball [1977] 3 ALLER 452, the
considerations of national security were held to limit very substantially the obligations of audi
alteram partem. In this case, Hosenball, a US citizen, challenged a deportation order that had been
made against him by the Home secretary deeming his deportation to be conducive to the public
good as being in the interests of national security. Hosenball challenged the voluntary
procedure as not conforming to natural justice. In particular Hosenball drew attention to the fact
that he had not been given any detailed information as to the exact allegations against him, and
that the security advisers had information before them from the intelligence service which they did
not make available to him. Although he had been permitted to make representations, the value of
the opportunity was rather limited because he did not know precisely the charges against him
(something that audi alteram partem would have required). The Court of Appeal denied that there
had been any breach of natural justice.
The Court contrasted the normal procedural rights afforded to persons against whom serious action
was to be taken, with the more limited protection in a case such as this. As Lord Denning MR
said in the above case; ‘…this is no ordinary case. It is a case in which national security is
involved, and our history shows that, when the security of the state is endangered, our cherished
freedoms may have to take second place. Even natural justice may suffer a set-back….spies,
subverters and saboteurs may be mingling among us, putting on most innocent exterior. They may
be endangering the lives of men in our secret service, as Mr. Hosenball is said to do…If they are
foreigners they can be deported.’
3. Where an employer summarily dismisses an employee the right of a fair hearing is excluded
unless contractual or statutory procedural duties are cast on the employer, the court can only grant
an employee damages for breach of contract if the dismissal is wrongful but can not declare the
decision to dismiss null and void.
Mallock Vs Aberdeen Corporation (1971) 1 WLR 1578
Musisi Vs Greenlays Bank.
NB. Bearing in mind Art 44; it is not consistent with the constitution, this is done for administrative
expediency.
Effects of failure to observe natural justice
The effect is that a decision given in disregard of the principles of natural justice is void. It may
lead to the quashing of the decision and damages may ensue from such proceedings. In Kaggwa
V Minister of Internal Affairs, HC Miscellaneous application No. 105 of 2002, the Minister’s
decision was quashed because the applicant had not been granted a fair hearing. In Annebrit
Aslund V A.G, HC miscellaneous cause No. 441 of 2004, Katutsi J quashed the URA report
because it flouted principles of natural justice.
THE RULE AGAINST BIAS
The second part of the principle of natural justice is derived from the Latin maxim "nemo judex
in causa sua" meaning no one can be the judge in his own cause. This gives rise to a duty to act
fairly, to listen to arguments, and to reach a decision in a manner that is untainted by bias. There
can never be a fair trial where the adjudicator has an interest in a case or matter. There are 2 aspects
to the rule against bias;
1. That the adjudicator must not have any direct financial or proprietary interest in the outcome of
the proceedings.
2. An adjudicator must not be reasonably suspected or show a real likelihood of bias.
Financial or pecuniary interest
No matter how small the adjudicator's pecuniary interest may be or no matter how unlikely it is to
affect his judgement, he is disqualified from taking part in making a decision. Any decision made
in such circumstances will be set aside. In Leeson V General Council of Medical Education
(1889) 43 Ch.D 336, court stated thus, ‘…a person who has judicial duty to perform disqualifies
himself from performing it if he has a pecuniary interest in the decision which he is abut to give
or a bias which renders him otherwise than an impartial judge. If he has a pecuniary interest in the
success of the accusation he must not be a judge.’
The same principle applies when the pecuniary interest is that of the adjudicator’s wife or other
close relatives. Likewise the adjudicating officer should disqualify himself from the proceedings
if he has any substantial pecuniary relation with a party, even if that relation is not directly at issue
in the case. Of course this principle cannot be carried to its logical extreme, otherwise all
adjudicators would withdraw from all matters. But in general an adjudicating officer should be
very wary of participating in a case where his pecuniary relations with a party might appear to
affect his decision.
In Dimes Vs Proprietors of Grand Junction Canal proprietors (1852) 3 HLC 759, a decree
made by the Lord Chancellor was set aside because he was holder of shares in the company which
was a party to the proceedings. The brief facts were as follows. Lord Cottenham was Lord
Chancellor of England and held 92 shares in a company called G,.J. Canal worth thousands of
pounds. There was a dispute between a man called Davies and the company. The company applied
for an injunction restraining Mr. Davies’ conduct in putting a bar across the canal, which he
claimed to be his property. The application was granted and there was an appeal to Lord Cottenham
as Lord Chancellor, the decision was affirmed, Mr. Davies losing his appeal. Lord Cottenham had
not disclosed that he was a shareholder of the company. T was held by the House of Lords that the
Lord Chancellor was disqualified from acting as a judge in the cause on ground of interest and the
decree was set aside.
L.C.J., Lord Campell said, ‘‘No one can support that Lord Cottenham could be, in the remotest
degree influenced by the interest that he had in this concern; but it is of the last importance that
the maxim that no man is to be a judge in his own cause in which his own cause should be heard
is sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in
which he or she has an interest. ….We have again and again set aside proceedings in inferior
tribunals because an individual, who had an interest in a cause, took part in the decision. And it
will have a most salutary influence on these tribunals when it is known that this high court of last
resort, in a case in which the lord chancellor of England had an interest, considered that this decree
was on that account a decree not according to law, and was set aside. This will be a lesson to all
inferior tribunals to take care not only that in their decrees they are not influenced by their personal
interest but to avoid the appearance of labouring under such an influence.’’
Non pecuniary interests
In some cases there may exist some kind of relationships between the adjudicator and one of the
parties that might lead to a biased decision. The test to be applied are ;
1. Is there a real likelihood of bias?
2. Is there a reasonable suspicion of bias?
NB. There is no need to prove actual bias. Examples of cases where a likelihood of bias led to the
decision being set aside are hereunder discussed. The locus cluscus on the subject of bias is the
case of Libyan Arab (U) Bank & another V Adani Vassilads CACA No. 9 of 1985, Odoki JA
(as he then was quoted article 126 of the Constitution, then 15 (9) )and stated that the provision
lays down the requirements for a fair trial, that court must be independent and impartial.
He held that bias may be established against a person sitting in a judicial capacity on one of the
two grounds;
(a) direct pecuniary interest in the subject matter,
(b) bias in favour of one side against the other. That bias means a real likelihood of an operative
prejudice whether conscious or not.
That in considering the possibility of bias it is not the mind of the judge which is considered but
the impression given to reasonable persons. Justice Odoki, JA (as he then was), stated that, ‘there
must be reasonable evidence to satisfy the court that there was a real likelihood of bias. Objection
cannot be taken at everything that might raise a suspicion in somebody’s mind or anything which
could make fools suspect. There must be something in the nature of real bias, for instance evidence
of proprietary interest in the subject matter before court or a likelihood of bias based on close
association with one of the parties as was the case in Tuman V R.’
His lordship held that in this case ‘there is no reasonable evidence to satisfy me that there was a
real likelihood of bias on the part of the learned trial judge. There was no evidence or even
suspicion that he had a direct pecuniary interest in the subject matter of the suit. There was no
evidence that he was likely to favour the respondent against the appellant; and even if the trial
judge may have been thought to have formed some opinion before hand on the case, it is not
enough to establish bias. The allegation of bias was a mere conjecture.’ That the appellants should
have raised a preliminary objection the trial and even if it were overruled, he should as the trial
judge remarked in his judgement have continued with the hearing and made it a ground of appeal.
The appellants abandoned the hearing because they suspected that the trial judge had prejudged
the case against them before hand. That the burden of proof lies on the party refusing to continue
trial to satisfy court of appeal that he was justified in his apprehension that it would be futile for
him to continue and that had he done so he would not have had a fair hearing.
In Brassington V Brassington [194] 3 ALLER 988 at 990, Holroyd Pearson L.J stated thus,
‘Before considering the effect of the remarks of which a complaint is made, we must observe that
only a very strong case indeed could justify a refusal by a party to continue to take part in the trial.
If a party though aggrieved, continues to present his evidence and arguments he can always reserve
his complaint and appeal against the unfair decision when it has been given. And any remarks
which show that the tribunal prejudged the case against him before he had called his evidence will
always in this court add very great weight to the substance of the appeal and may in themselves
constitute a sufficient ground of appeal. The aggrieved party will then atleast have shown that he
has a genuine case on which he either ought to have or could have succeeded.
In Metropolitan Properties Co. F.G.C Ltd V Lannon (199)1Q.B 41, Lord Denning stated that,
‘in considering whether their was a real likelihood of bias, the court does not look at the mind of
the justice himself or at the mind of the chairman of a tribunal or whoever it may be who sits in a
judicial capacity. It does not look to see if there was a real likelihood that he would or did, in fact
favour one side at the expense of the other. The court looks at the impression which would be
given to other people. Even if he was impartial as could be, nevertheless if right minded persons
would think that in the circumstances there was a real likelihood of bias on his part, then he should
not sit and if he does sit, his decision cannot stand. Nevertheless there must appear to be a real
likelihood of bias. There must be circumstances from which a reasonable man would think it likely
or probable that the justice or chairman as the case may be would or did favour one side unfairly.
The court will not inquire whether he did in fact favour one side unfairly. Suffice it that reasonable
people might think he did. The reason is plain enough. Justice must be rooted in the confidence
and confidence is destroyed when right minded people go a way thinking the judge was biased.’
In Patel V Joshi [1952]19 EACA 42, Court of Appeal held that a judge should not descend into
the area where his vision may be clouded by dust of conflict, but an appellate court will refuse a
retrial unless it is convinced that the vision of the judge had become so clouded-excessive
intervention.
An example of actual bias is to be found in the Uganda Judicial Code of Conduct (2003),
principle 2.4 provides that a judicial officer shall refrain from participating in any proceedings in
which the impartiality of the judicial officer might be reasonably questioned. It states further that
without limiting the generality of the foregoing a judicial officer shall disqualify himself from
participating in any proceeding where he has personal knowledge of the disputed facts concerning
the proceedings or where a member of the judicial officer’s family is representing a litigant, is a
party, or has an interest in the out come of the matter in controversy, in the proceedings. In R V
Rand (1966) L.R 1 Q.B. 230, the judge stated that, ‘wherever there is a real likelihood that a judge
would, from kindred or any other cause, have a bias in favour of one of the parties, it would be
very strong for him to act.’’
In relation to disqualifying oneself as a result of the probable bias, it was stated in Leeson V
General Council of Medical Education, (1889) 43 Ch.D. 366, that ‘…a person who has judicial
duty to perform disqualifies himself from performing it if he or she has a pecuniary interest in the
decision that he or she is an=bout to give or a bias that renders him otherwise than an impartial
judge. If she or he has a pecuniary interest in the success of the accusation he or she must not be a
judge.’
NB. This equally applies where a judicial officer or chairperson of a tribunal has any pecuniary
relation with a party, even if that relation is not directly at issue in the case.
Note that mere suspicions should not outweigh and influence the justice of the case, otherwise the
essence of the rule against bias will be lost. As was noted in the Australian case of Re JRL, exparte
CJL, (1986) 161 CLR 342 at 352 Mason J, sitting in the High Court of Australia, said, ‘Although
it is important that justice must be seen to be done, it is equally important that judicial officers
discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias,
encourage parties to believe that by seeking the disqualification of a judge, they will have their
case tried by someone thought to be more likely to decide the case in their favour.’ This is fortified
by the Clenae case [1999] VSCA 35 Callaway JA observed thus, ‘As a general rule, it is the duty
of a judicial officer to hear and determine the cases allocated to him or her head of jurisdiction.
Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded
disqualification application.’
In addition, principle 5.1 of the Judicial Code of Conduct provides that a judicial officer shall not
in the performance of judicial duties, by words or conduct manifest bias or prejudice towards any
person or group on the basis of unjust discrimination.
The rationale for the apparent strictness of the rule is one of public policy. In Serjeant V Dale
(1877)2Q.BD 558 at 567, court said, ‘‘The law in laying down this strict rule, has regard, not so
much perhaps to the motives which might be supposed to bias the judge, as to the susceptibilities
of the litigant parties. One important object, at all events is to clear away everything which might
engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the
administration of justice which is so essential to social order and security.’’
Hence, the dictum of Lord Heward C.J in R V Essex JJ. Exparte McCarthy (1924) 1 KB 256,
‘Justice should not only be done, but be manifestly seen to be done.’ In that case, the police
charged the applicant with dangerous driving. As is known, in England, justices of the peace sit
with a qualified clerk. At the hearing, the acting clerk happened to be a member of the firm of
solicitors who were acting for someone who was claiming damages from the applicant for personal
injuries he received in the collision. The justices retired to consider their decision and the acting
clerk went out of court with them, in case they wanted any guidance on the law. The applicant was
convicted. An affidavit was sworn that the acting clerk was not in fact consulted. The conviction
was quashed for, it was held to be improper for the clerk to be present with the justices when they
were deliberating on their decision, when his firm’s interest in the case was borne in mind. It was
not necessary to establish bias in fact and the result would have been the same even if the clerk
had not known that his firm was acting professionally.
The test for actual bias is subjective while the test for perceived bias is objective. Perceived bias
refers to a situation where an impression could be created to a reasonable person that the judicial
officer is not impartial. It is not the mind of the judge that is considered but rather the impression
given to reasonable persons. See Tumaini V Republic [1972] EA44. In Blasio Sengendo &
another V Uganda [1994] IV KALRN 133, Tsekooko J held that inter alia that the inference of
bias must be as to what a reasonable man would think given the set of circumstances. That if the
reasonable man would think that the magistrate did favour one side unfairly at the expense of
another, then bias is proved.
In Bwowe Ivan and ors v Makerere University; the judge gave the test for bias as being
categorised into two that is actual bias and constructive bias. Bias was defined as a state of mind
which prevents a tribunal from making an objective, independent and impartial determination of
the issues that it has to resolve
NB. Impartiality is a question of perception and there are three instances a judicial officer should
be alive to;
(i) Perceived conflict of interest. (ii) Behaviour (inside and outside court). (iii) Associations and
activities outside court. Conflict of interest arises where there is probability of advancing or
promoting the personal or interest of others in a manner which compromises fairness and the entire
judicial process. This has already been discussed in the preceding paragraphs.
1. Where the adjudicator was a member of an organisation that was a party to the proceedings.
In Hannam Vs Bradford Corporation 1970) 1 WLR 937, an education sub-committee had
confirmed had confirmed the decision by the governor f the school to terminate a teacher's
employment. Held the decision was quashed by the court because of the fact that the 3 members
of the sub-committee were also governors of the school gave rise to the possibility of bias.
2. Where extra-judicial pronouncements reveal that an adjudicator was partisan.
R Vs Halifax justices exparte Robinson (19120 76 JB 233
Ashumd Vs AG
3. Where there is personal friendship or hostility towards one of the parties.
In White Vs Kuzych 1951) AC 585, the respondent a member of the appellant trade union was
found guilty on charges alleging breach of Art 2 of Bye laws of the union including committing
acts discreditable to it in publicly opposing established policies of the union by campaigning
against the closed shop principle. He (...............) was provided with an option of an appeal after
exhausting al remedies from the findings in the report and the resolution of his expulsion that he
had not been validly expelled from the membership. He claimed that the decision was biased and
breached natural justice and even intimidation. Court held that the conclusion reached was a
decision even if it was tainted with / by bias or prejudice or arrived at in defiance of natural justice
and even if the voting of some members might have been reached/ affected by intimidation.
In R V Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte [2000] 1
AC 119, Lord Browne-Wilkinson stated thus, ‘‘…the fundamental principle is that a man may
not be a judge in his own cause. This principle as developed by courts has two very similar but not
identical implications. First it may be applied literally; if a judge is in fact a party to the litigation
or has financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own
cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary
interest in its outcome is sufficient to cause his automatic disqualification. The second application
of the principle is where a judge is not a party to the suit and does not have a financial interest in
its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he
is not impartial, for example because of his friendship with a party….’’
According to De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th
edition (1995) at p.525, once it is shown that the judge is himself a party to the cause, or has
relevant interest in its subject matter, he is disqualified without any investigation into whether
there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify
him unless he has made sufficient disclosure.
4. Where a person is likely to be a witness in the proceedings, he can not be a judge.
Ndegwa Vs Nairobi liquor licensing court.
NB. The test of likelihood or reasonable suspicion of bias must be applied realistically.
In Sikabuza Vs The Director of Survey, the applicant's licence had been cancelled by the survey
licence board on grounds of professional misconduct, he appealed on the basis that the composition
of the board did not meet the standards of natural justice. The composition of whom were surveyors
and 3 other members, 2 of whom were surveyors. The applicant contended that the 2 surveyors on
the board were his competitors in the business and were therefore sitting in judgement of their own
cause. Court held that the mere fact that an interested party sits on the disciplinary body, which
applies professional standards does not necessarily conflict with the maxim that no man be judged
in his own cause.
Similar reasoning was applied in the case. Re-s- a barrister (1981) QB 683, where court held
that a solicitor could adjudicate in a matter brought by the council of the law society.
The need to apply the test realistically also means that political affiliations of the adjudicators are
usually not taken into account.
Where it is found that there is a real likelihood or a reasonable suspicion of bias, the adjudicator is
disqualified from presiding over the matter. The rational for such disqualification is based on the
principle that public confidence in the administration of justice must not be impropriety. The rule
looks to the appearance of the matter to an outsider.
According to the case of R Vs Sussex Justices Exparte McCarthy (1924) 1 KB 256, the issue of
appearance of the matter to an outsider is not that would a member of the public looking on the
situation as a whole reasonably suspect that a member of the adjudicating body would be biased.
The court must ask itself whether a reasonable person viewing the facts would think that there is a
substantial possibility of bias therefore the question is not whether the judge is likely to be biased
but whether he is likely to be seen as biased.
Consider this hypothetical case and answer the question: The adjudicator applies for a job with an
organisation one of whose members is going to be called as an expert witness by one of the parties
to the proceedings. Would the adjudicator be disqualified for bias?
The answer is to be found in Re- medicaments and related classes of goods (2001) 1 WLR 700,
this was a matter relating to the prices of certain medicines before the restrictive practices court of
England. An administrative tribunal with the membership consisting of a high court judge and lay
people who were also experts in accountancy and economics was constituted. During the hearing
one of the members of the tribunal, a doctor(R) approached an economic consultancy firm to ask
if they would consider employing her. She later realised that one of the directors of the firm a Mr.
B was an expert witness on behalf of the applicant in the case. She said she had forgotten this at
the time of making the application; she consulted the presiding judge and other members of the
tribunal and sent a statement to both parties advising them of the situation. In the statement, she
said that because of her involvement in the case as a member of the tribunal and Mr. B's
involvement as an expert witness her application for the vacancy could not be pursued until the
conclusion of the case. Never the less, the respondent appealed on grounds that there was a
reasonable suspicion of bias. The H.O.L held that in applying the test for bias, it would in deed
appear to an ordinary person that there was a likelihood of bias and that on those grounds doctor
R should have disqualified herself from presiding over the matter.
Lord Phxillips, MR. in the above case stated that the test is the reasonable apprehension test and
noted that it is by far the most appropriate test for protecting the appearance of impartiality. Lord
Phillips distinguished the test of real likelihood and reasonable apprehension/suspicion and
preferred the latter. He stated that, ‘…the premise on which the decisions in this court are based is
that public confidence in the administration of justice is more likely to be maintained if the court
adopts a test that reflects a reaction of the ordinary reasonable member of the public to the
irregularity in question. References to the reasonable apprehension of the lay observer, the fair
minded observer, the fair-minded, informed lay observer, fair-minded people, the reasonable or
fair-minded observer, the parties or pubic, and the reasonable person abound in the decisions of
the court. They indicate that it is the court’s view of the public view, not the court’s own view,
which is determinative. If public confidence in the administration of justice is to be maintained,
the approach that is taken by a fair-minded and informed members of the public cannot be ignored.
His lordship concluded that ‘…the court must first ascertain all the circumstances which have a
bearing on the suggestion that the judge was biased. It must then ask whether those circumstances
would lead a fair-minded and informed observer to conclude that there was a real possibility, or
real danger, the two being the same, that the tribunal was biased. The material circumstances will
include the explanation given by the judge under review as to his knowledge or appreciation of
those circumstances. Where that explanation is accepted by the applicant for review it can be
treated as accurate. Where it is not accepted, it becomes one further matter to be considered from
the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation
should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer
would consider that there was a real danger of bias notwithstanding the explanation advanced.’
NB. Sometimes it is proposed that the question upon which the court must reach its own factual
conclusion is this, is there a real danger of injustice having occurred as a result of bias? By ‘real’
is meant not without substance. A real danger clearly involves more than a minimal risk, less than
a probability.
It is submitted that injustice will occur as a result of bias if the decision-maker unfairly regarded
with disfavour the case of a party to the issue under consideration by him. I would take ‘unfairly
regarded with disfavour’ here to mean ‘was pre-disposed or prejudiced against one party’s case
for reasons unconnected with the merits of the issue.’ It should be noted that this kind of approach
was criticised in the Re Medicaments case above. Court noted therein that it is the hypothetical
rather than the actual test of the likelihood of bias to be applied.
REMEDIES IN ADMINISTRATIVE LAW

Art 42 of the 1995 constitution provides that any person shall have the right to apply to a court of
law in respect of any administrative decision taken against him/ her. In addition to the courts of
law; there are other institutions and procedures a person may resort to if aggrieved by an
administrative decision. Accordingly, administrative remedies may be classified into 2;
1. Judicial remedies.
2. Non- judicial remedies.
JUDICIAL REMEDIES
This refers to remedies that an aggrieved party may obtain from a court of law, in most cases the
high court. Section 33 of the Judicature Act Cap (13), provides that 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 any of the parties
to a cause or matter is entitled to in respect of any 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. Judicial remedies may be further classified as;
1. Appeals.
From most statutory tribunals appeals lie to the high court e.g. from the tax appeals tribunal and
the industrial courts, a person may appeal to the high court.
2. Prerogative orders.
These are special administrative law remedies that were specifically designed to enforce
governmental duties and powers.
3. Equitable remedies i.e. injunctions and declarations.
4. Ordinary remedies i.e. damages.
PREROGATIVE ORDERS
These are because originally under England law they were available only to the crown and not to
the subject. The crown used them to ensure that public authority carried out their duties and so
their main purpose was to ensure efficiency and maintain order in statutory authorities and
tribunals of all kinds. Later around the 16th century, they become available to ordinary England
citizens also seeking to enforce public duties. There are 3 examples of prerogative orders i.e.
certiorari, prohibition and mandamus. These are all under judicial review. They are discretionary
remedies and may be granted or refused at courts discretion. These remedies have been provided
for under section 34 of the Judicature Act and the Judicature Amendment Act, No. 3 of 2002.
In Chief Constable of the North Wales Police V Evans [1982] 1 WLR 1155 HL, Lord Hailsham
stated that the remedy of judicial review is intended to protect the individual against the abuse of
power by a wide range of authorities, judicial, quasi-judicial, and administrative powers. That it is
not intended to take away from those authorities the powers properly vested in them by law and to
substitute the courts as the bodies making the decisions. It is intended to see that the relevant
authorities use their powers in a proper manner. That the purpose of the remedies is to ensure that
the individual is given fair treatment by the authority to which he has been subjected. That the
function of court is to see the lawful authority is not abused by unfair treatment and not to attempt
itself the task entrusted to that authority by law.
CERTIORARI AND PROHIBITIONS
There are complimentary remedies based on common law, certiorari issues to quash a decision
which is ultra-vires due to breach of natural justice or other defects in the procedure that was
followed by an administrative authority. Under certiorari, the High Court will call up the decision
of an inferior tribunal/ authority in order that it may be investigated. If it is found that the decision
was made in breach of natural justice or some other procedural defect, it is quashed i.e. it is
declared completely invalid so that no one need to respect it once made an order of certiorari is
final.
The scope of certiorari was discussed in R V Electricity Commissioners, Exp London
Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 at 204, where Atkin J stated that,
‘…both writs of prohibition and certiorari are of great antiquity, forming part of the process by
which King’s Courts restrained courts of inferior jurisdiction from exceeding their powers.
Prohibition restrains a tribunal from proceeding further in excess of jurisdiction; certiorari requires
the record or order of the court to be sent to the higher court (King’s Court) to have its legality
inquired into, and if necessary, to have the order quashed. It is to be noted that both writs deal with
questions of excessive jurisdiction; and doubtless in their origin dealt almost exclusively with the
jurisdiction of what is described in the ordinary parlance as a court of justice. …Whenever any
body of persons having legal authority to determine questions affecting the rights of subjects, and
having the duty to act judicially, act in excess of their legal authority they are to subject to the
controlling jurisdiction of the King’s Court (this is the same as Uganda’s High Court empowered
to grant remedies of certiorari and prohibition.’’ It should be noted that the these remedies can be
invoked by a person
However, an application for such an order must be made within 6 months of the proceedings in
respect of which it is made.(6 months after the decision)
Grounds on which a certiorari application may be made;
1. Breach of rules of natural justice.
It should be noted that the principle of natural justice has been embedded in the 1995 Constitution
of the Republic of Uganda and other laws and its one of the non derogable rights.
Art. 42 of the 1995 Constitution provides that any person appearing before any as 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 / her. This is because Art 28 of
the 1995 Constitution provides for a right to a fair hearing which is absolute. It provides that in the
determination of civil rights and any obligation, or in criminal matter a person shall be given a fair,
speedy and fair hearing before an independent tribunal established by law.
Accordingly, Article 44 of the Constitution provides inter alia that notwithstanding anything in
the Constitution, there shall be no derogation from the enjoyment of the right to fair hearing. The
duty to act fairly represents the standard of procedural administrative justice with which they will
require compliance. In the words of Megarry V-C in McInnes V Onslow Fane ‘…if one accepts
that ‘natural justice’ is a flexible term which imposes different requirements in different cases, it
is capable of applying to the whole range of situations indicated by the terms such as ‘judicial’,
‘quasi-judicial’ and administrative.’
In John Bosco Oryem V Electoral Commission and UNEB, Mukiibi J held that the Electoral
Commission was a quasi judicial organ by virtue of section 15 (1) of the Electoral Commission
Act and its functions are akin to a court or an arbitrator. His lordship observed that ‘if interests of
an individual are going to be affected, he must be given a hearing. Where quasi judicial functions
have to be exercised by a board or any body of persons, it is necessary and essential that they must
always give a fair opportunity to those who are parties in the controversy to correct or contradict
any relevant statements prejudicial to their case. Both sides have a right to be heard and a decision
in breach of the principles of natural justice is void.’ His lordship held that the respondent met to
discuss the complaints which had been submitted against the petitioner without notifying him that
such proceedings were taking place. That the respondent made a decision against the petitioner to
disqualify him without informing him or inviting him to defend and as such the respondent acted
contrary to natural justice in arriving at its decision. The decision shows how rules of natural justice
have been applied in Uganda.
Accordingly, Section 36 of the Judicature Act empowers the High Court to make orders of
mandamus, certiorari as well as prohibition. These remedies can be invoked in inter alia where
there has been breach of natural justice and the procedure is provided in the Judicature
(Amendment) Act.
In Cheborion Basharaki V Attorney General, an application for certiorari, mandamus,
prohibition and declaration was made by Cheborion. He sought a declaration that his interdiction
was made contrary to the principles of natural justice. Katutsi J held that Regulation 36 of the
public service regulations granted power to the solicitor to interdict and that there was no non
observance of natural justice.
Further in Kikonda Butema Farms Ltd V Inspector General of Government, this was an
application that sought for certiorari to quash the decision of the IGG, Justice Apio Aweri stated
that for an order of certiorari to be made, it must be shown inter alia the respondent acted in excess
of his jurisdiction; that there was actual or threatened usurpation of jurisdiction or that there was
breach of natural justice, or that an error of law on the face of the proceedings or where the
determination was procured by fraud, collision or perjury. That in this case the action of the IGG
was justified as he had received a report that government was about to lose colossal sums of money
under unclear circumstances, he made a report which was valid. That the IGG was acting within
the confines of his (powers) jurisdiction, his decision was valid. That since none of the grounds
listed above had been proved, it could not be issued.
The above can be contrasted with the decision in Annebrit Aslund Vs Attorney General, where
Katutsi J quashed the URA report because it flouted principles of natural justice. In the applicant
who was an employee of URA appeared and testified before the commission of inquiry into
allegations of corruption in U.R.A over which lady justice sebutinde had made a report and
submitted to the Minister of finance and economic development. The applicant claimed that the
lady justice made baseless, biased and false findings that the applicant was incompetent to head a
big financial institution like U.R.A and prayed court to grant a declaration that the sebutinde report
is a nullity, an order of certiorari removing the report into the High court in order to quash it and
expunge it from archives of public records and an injunction prohibiting any officer from taking
action based on the report.
At the hearing three points were raised by counsel for the respondents, that the High court was not
clothed with jurisdiction to grant the orders sought, that the application was misconceived for want
of locus.
The court held inter alia that in this case the very fact that the commission of inquiry Act, Cap 166
states that in a few instances, summoning witnesses, the commission was to exercise the powers
of the High Court, shows that in other aspects the Commission could not be equated to the High
Court even when presided over by a High court judge. A tribunal appointed under the commission
of inquiry Act, is an inferior Court within the meaning of rule 1 (2) Order XLII A of the Civil
Procedure Rules and subject to the control of the High court through such writs as mandamus,
certiorari and prohibition. That a cause of action is the fact or combination of facts that give rise
to the right of action. The operational words of section 3 of the Judicature (Amendment) Act No.
3 of 2003 are ‘any proceedings or matter’ which terms are wide enough to include proceedings
and report of the commission of inquiry. They do not restrict the cause of action to a final
enforceable decision, therefore a remedy for judicial review is concerned not with the decision of
which review is sought but with the decision making process. In this case, the application does not
confine itself to the relief of certiorari but also seeks a declaration and an injunction. That in the
instant case there had been breach of the rules of Natural justice and procedure.
The effect of the above decision is that every tribunal or judicial body should adhere to principles
of natural justice. Secondly, the case shows that whenever there is a breach of inter alia natural
justice, a specific law has been made that provides a procedure through which an aggrieved person
can seek remedy.
Accordingly, in Marko Matovu V Mohammed Sseviri, Court held that the audi alteram partem
rule is a cardinal rule of natural justice so central to Uganda’s system of justice that it must be
observed by both judicial and administrative tribunals. Where an administrative agency acts
contrary to this rule it exceeds powers conferred upon it by parliament and such decision is void
and of no consequence in the same way as a decision made without jurisdiction is a nullity.
In Kaggwa Andrew V Minister of Internal Affairs HC Misc. Application No. 105 of 2002, court
held that the Minister’s decision would be quashed for the applicant had not been granted a fair
hearing, that this violated the principle of natural justice.
2. Excess or lack of jurisdiction on the part of the deciding authority.
3. An error of law on the case on the record or fraud, perjury or duress in procuring a decision.
Nature of remedy of certiorari
The special characteristic of certiorari is that it issues not because of any personal injury to the
applicant, but because of the need to control the machinery of justice in the general public
interest.In Re-the Milling Ordinance (1954) 2 TLR 192, the Court of Appeal considered the
nature of certiorari and observed that certiorari is not an appeal in disguise, it does not involve a
re-hearing of the issues raised in the proceedings, it exists to correct an error of law on the face of
the record or an irregularity in the proceedings or an absence of excess of jurisdiction were shown.
NB. Make a distinction from an appeal it does not look or hear again issues.
In R Vs Paddington Valuation Officer Exparte peachy property Ltd (1965) 2 ALLER 836,
court considered whether there is any need to issue an order of certiorari to a decision which is
ultra-vires and why quash it? Although they also held that it is possible to ignore a void order. In
this case, a company owning a large number of properties with in the Paddington rating areas,
sought certiorari to quash the whole of the valuation list prepared for the area. It was argued that
chaos would result if the list was quashed, since, until a list could be prepared, no valid list upon
which rates could be levied would exist. Denning MR held that such chaos might be ground for
not quashing the list immediately, but suspend the operation of certiorari until a new list could be
prepared hence certiorari was refused because the valuation officer had not acted erroneously in a
way to have the whole list.
PROHIBITION
Is a similar remedy to certiorari but it is prospective rather than retrospective i.e. whereas
prohibition issues to prevent a future act or decision, certiorari issues to quash a decision that has
already been made. Typically, prohibition is used to prevent tribunals from dealing with cases over
which they have no jurisdiction. Thus, in R Vs Electricity Commissioners Exparte London
Electricity joint committee company Ltd (1924) 1 KB 171, prohibition was used to prevent the
electricity authority from proceeding with a scheme which was outside its powers. Lords Atkin
observed that; "l can see no difference in principle between certiorari and prohibition except that
the latter may be involved at an earlier stage. If the proceedings establish that the body complained
is exceeding it's jurisdiction by entertaining matters which would result in it's final decision being
brought up and quashed on certiorari, then prohibition would lie to restrain it from so exceeding
it's jurisdiction"
Excess or lack of jurisdiction
There may be an excess of jurisdiction if the tribunal is improperly constituted, incompetent to
adjudicate in respect of the parties, locally or the subject matter of the case. A tribunal may lack
jurisdiction if the essential preliminary requirements have been disregarded; or if the proceedings
are not properly instituted; or having jurisdiction in the first place, proceeds to entertain matter or
make an order beyond its competence. In De Souza V Tanga Town Council [1961] EA 377,
certiorari order was issued partly on the ground that a mandatory procedure had not been followed
which amounted to an excess of jurisdiction. Further, In Re an Application by Bukoba
Gymkhana Club [1963] EA 478, certiorari was awarded to quash the decision of a liquor licensing
board on the ground that it took into account irrelevant considerations.
In Pius Nuwagaba V LDC High Court Miscellaneous Application No. 589 of 2005, an
application was made by Nuwagaba to quash the decision of LDC in rejecting the application of
the applicant and others from Pentacostal University for lack of accreditation by Law Council.
While holding that the applicant was a holder of a degree in law granted by a university in Uganda
as required by S. 8 of the Advocates Act, Okumu Wengi J stated that the decision of LDC was
illegal and irregular and hence the decision would be quashed and an order of prohibition would
issue against LDC from treating the Degree of the applicant as not recognised.
Prohibition has also been ordered in the following examples.
In R Vs Kent Police authority exparte Godden (1971) 2 QB 662, a biased adjudicator was
prohibited from taking part in the decision. It was held that a doctor who had previously examined
a police officer and formed then an opinion that the officer was suffering from mental disorder of
a paranoid type, should not subsequently have been appointed to be the ‘dully appointed
practitioner’ to certify whether the officer was permanently disabled from proper performance of
his duties requiring compulsory retirement. Such certification was a judicial-type function,
requiring both actual and apparent impartiality. In the circumstances suspicion existed that the
doctor would be biased to favour his own earlier diagnosis.
In R Vs Electricity Commissioners / exparte London electricity Joint committee Ltd (1924)
1 KB 171 Atkins J "...prohibition restrains the tribunal from proceeding further in excess of
jurisdiction. ...certiorari requires the record or the order of the court to be quashed or be sent to a
unique court to have its legality inquired into. That both deal with excessive jurisdiction.’’
R Vs Greater London Council Exparte Black burn (1976) 1 WLR
Prohibition in this case was used to prevent a local authority from licencing indecent firms.
NB. Prohibition can be applied for under many circumstances.
S.43, 51, of J.A Cap 13, which provides for the procedure of applying for prerogative orders
Civil procedure amendment judicial review rules statutory instruments no. 75 of 2003 S.2-5.
Failure to comply with an order of certiorari or prohibition is punishable as contempt of court.
Certiorari/ prohibition may be however denied under certain circumstances.
1. Where there is no locus standi, a person must have sufficient interest in the matter for which the
application for judicial review relates.
R Vs Herndon Exparte Chorley (1932) 2 KB 696
R Vs Thens Magistrates Court Exparte Green Boam(1957)
2. They may be denied where there is an alternative remedy e.g. an appeal would suffice to do with
the injustice e.g. where the law provides for a hierarchy of tribunals and appeals lie form one
tribunal to another. E.g. under the Land Act, appeals lie from the sub-county tribunals to the district
land tribunals. S.38 of J.A provides that where an application for certiorari is made in respect of
proceedings which are subject to appeal, and there is a time limit for filling the appeal,
the court may adjourn the application for certiorari until the appeal has been determined or until
the time for appealing has expired.
In R Vs Chief adjudication officer exparte bland (1985). B applied for certiorari to quash a
decision affecting the amount of social security benefit he could get. The decision could have been
appealed against through the social security tribunals. The court refused to grant certiorari saying
that it could not by-pass the specialised appeals machinery provided for under the law.
3. Certiorari will also be denied where the applicant delays to make the application as happened in
the case of R Vs Aston University senate(1969) 2QB538
4. Also where the applicant waives his right to apply, a waiver will be implied where e.g. a party
appearing before a tribunal knows that it was improperly constituted because one of the
adjudicators has an interest in the case, but raises no objection at the time of the hearing. Such a
party will be excluded from going a head to apply for certiorari to quash the decision. This was
illustrated in R Vs Williams Exparte Phillips (1914) 1 KB 608
What is the difference between prohibition and certiorari?
The two remedies are very similar and they are hand-in-glove. The difference, however, between
the two orders is that the order of certiorari operates to quash a decision that has been made in
excess of legal authority. On the other hand the order of prohibition operates to prevent an authority
from acting in excess of its legal authority before the authority has completed its proceedings or
acting on a decision arrived at in breach of either natural justice or legal procedures among others.
NB. because certiorari and prohibitions are discretionary remedies, the circumstances under which
they may be refused are not limited.
MANDAMUS REMEDY
It is an order which compels the performance of a public duty by a public authority. It commands
the person or body to whom it is directed to perform a public duty imposed by law. In R V
Paddington South Rent Tribunal, exp Milliard [1955] 1 ALLER 691, an order of mandamus
was granted against a rent tribunal which had wrongly held that it had no jurisdiction to hear and
determine an application properly made to it. The tribunal had a duty to hear cases that fell within
its jurisdiction and, as a result of its errors as to its jurisdiction, had improperly declined to hear
the case.
It is also a discretionary remedy and court may decline it in cases it deems unsuitable e.g. undue
delay on the part of an applicant. In Broughton Vs Commissioner of stamp duties (1889) AC
251, the applicant waited for 9 years to claim a tax refund and sought an order of mandamus to
compel the commissioner to grant the refund. The order was denied.
It will also be denied where an equally convenient, beneficial and effectual remedy is available. In
Passmore Vs Oswldwistle (1898) AC 387; where a complaint to the minister would have been
sufficient to deal with the problem. Mandamus was denied because the applicant could have
complained to the minister than court.
Where the applicant has no locus standi, mandamus will be denied and the test is whether the
applicant has sufficient interest in the matter to which the application relates. In R Vs Inland
Revenue commissioners’ exparte National Federation of self employed and small business Ltd
(1982) AC 617, the issue was whether the federation had a sufficient interest to apply for
mandamus. The complaint in this case was the failure of the Inland Revenue to collect taxes due
from other people. The House of Lords in holding said; that an examination of the tax legislation
far from conferring on the tax payer the right to inquire about other people's tax indicated the
reverse by reason of the confidentiality of the relationships between the tax payer and the inland
revenue. The applicant did not therefore have sufficient interest in the matter to complain about
the non- performance of the inland revenues duty.
On the other hand, mandamus is available to enforce a wide range of duties. It can issue to compel
the proper exercise of discretionary power. In cases where there has been failure to exercise a
discretionary power, the order will lie to compel proper consideration of the matter; and in cases
where there has been abuse of discretionary power, mandamus will lie to order the exercise of the
power properly, according to the law. Thus, in Padfield Vs Minister of Agriculture, Fisheries and
Food (1968) AC 997, mandamus issued to require/compel the Minister to exercise his power in
accordance with the law. That is, to consider the complaint of the appellants according to the law.
In R Vs Manchester Corporation (1911) 1KB 560; mandamus issued to a local authority to make
bye-laws which an existing act required it to make. It may also issue to ensure enforcement of the
law by the police.
In R Vs Metropolitan police commissioner Exparte Blackburn (1968) 2 QB 118 mandamus
issued to compel the police to enforce the law with regard to breach of gamming laws.
In R Vs Paddington Valuation Officer and Exparte peahery Property corporation Ltd
The applicants applied for prerogative orders of mandamus or certiorari directed to compelling the
respondent valuation officer to carry out his statutory duties in relation to the cooperation of the
valuation list or to quash the list which had come into force. They contended that the respondent
(officer) had ignored his duty to value separately each hereditament. That the respondent had taken
into account erroneous consideration i.e. controlled rents etc. Court held that certiorari to quash
the decision could not be granted because he had acted in good faith and in accordance with the
statute.
GROUNDS OF JUDICIAL REVIEW
1. Ultra-vires.
2. Challenge on jurisdictional grounds i.e certain defined circumstances.
3. Failure through justifiable statutory power that agency on which the power has been confined
has failed properly to retain and exercise a free and un fettered power of judgement e.g a decision
maker may operate a self imposed policy unduly strictly and so fail to consider each particular
instance on it's merits or may have purported to consider himself bound by some virtual / similar
undertaking as to how it will exercise it's powers.
4. Manner of exercise of an acknowledged power i.e. improperly used for one or more reasons;
having taken irrelevant considerations into account or not of a reasonable authority.
5. Procedural irregularity in exercise of an admitted statutory power. non- compliance with
procedure expressly laid down.
6. Error of law on the face of record (certiorari ground). Lord Diplock in council of civil service
union Vs Minister of the civil service (1985) AC 374
NB. Prohibition / certiorari may be denied where the applicant has no locus standi In IRC Vs
National Federation Of Self Employed and small business Ltd, Lord Diplock stated' " ... the court
should have jurisdiction to grant declaration or an injunction as an alternative to making one of the
prerogative orders, whenever in it's discretion it thinks that it is just and convenient to do so, and
that this jurisdiction should be exercisable in any case in which the applicant would previously
have had locus standi to apply for any of prerogative orders.’
NB. What was the position of mandamus, certiorari and prohibition in the past?
In R Vs Liverpool corporation exparte Liverpool taxi fleet operations Association (1972) 2QB299
Lord Deng MR, " the ............. of prohibition and certiorari ......... on behalf of any person who is
"a person aggrieved" and that includes any person whose interests may be prejudicially affected
by what is taking place. It does not include mere busy body that is interfering in things which do
not concern him, but includes any person who has a genuine grievance because something has
been done or may be done which affects him." In this case, the taxi owners obtained prohibition
to prevent an increase in the number of taxi licences in breach of certain undertakings previously
given to them.
EQUITABLE REMEDIES
1. Injuctions
2. Declarations.
INJUCTIONS
Is a court order requiring the party to whom it is addressed to refrain from doing a particular act?
Injunctions are provided for under the rules of equity and there are various circumstances under
which they may be granted in administrative law.
1. It may be granted to prevent a public body from acting ultra-vires. In AG V s Fulham
Corporation (1921) 1 Ch 440, the defendant had statutory power to provide wash houses which
were to be supplied with facilities for washing and drying clothes. Acting under that power, the
defendant provided the members of the public with facilities were they could come and wash their
clothes. However, the corporation now proposed to provide a laundry service where the washing
would be done by special hired employees. The AG contended that such a laundry service
contradicted the statute and that the defendant would be acting ultra-vires. The AG sought for and
successfully obtained an injunction to restrain the corporation from acting ultra-vires.
2. To prevent a public authority from committing a tort. In Bronbelt Vs Rotherham corporation
(1917) 2 Ch 31, an injunction was granted to restrain the defendant corporation from carrying out
administration order without a proper hearing of the owner's case.
In Pride of Derby and Derbyshire Angling Association Ltd Vs British Celares (19530 Ch 149,
an injunction was granted to prevent a public authority from committing a nuisance i.e polluting a
river.
3. To enforce a statute or to secure obedience to the law.
In AG Vs Harris (1921) 3ALLER 207, Harris had been convicted 142 times for selling flowers
on the foot path in a forbidden area and his wife had been convicted 95 times. The maximum fine
for the offence was just 2 pounds and the Harris' always paid the fine but continued to flout the
law. C.A said that although each offence was trivial, it was right that the Harris' should be stopped
from deliberately flouting the law and an injunction was granted.
NB. An injunction is a discretionary remedy and may be refused under certain circumstances e.g
1. It may not be used to interfere with the processes of parliament.
Bradlough Vs Goset (1884) 12 QB 271
2. It will not be granted where the conduct of the applicant does not merit the remedy .Since it is
equitable remedy and he who comes to equity must come with clean hands.
Glynn Vs Keele University (1971) 2 ALLER 81
NB. In administration law, there are 2 types of injunction i.e
a) Negative injunction aimed at restraining a person from doing something
b) A positive injunction compelling a person to do something. The positive injunction is not
usually resorted to in administrative law because the remedy of mandamus is geared towards
compelling public bodies to perform their duties and a positive injunction is sometimes referred to
as a mandatory injunction.
Where a mandatory / positive injunction is to be granted, there must be a specific time frame within
which the act that is sought to be enforced should be done. Accordingly, a mandatory injunction
can not be given to compel a person to do a continuous indefinite act.
In A.G of Kenya Vs Block and another (1959) EA 180, the A.G sought an injunction to compel
the defendant to maintain roads in a certain part of Nairobi. The conditions in the defendant's
contract did not specify a time period for road maintenance. The court refused to grant an
injunction saying that where there was no time limit for doing of the act, enforcing the injunction
would be very difficult and would be a burden of the court. In Gravesham Borough Council Vs
British Railways Board (1978) Ch 379. Had similar facts but related to maintenance of railway
in Gravesham.
3. Court will not grant injunction against government but may only make a declaration on the
rights of the parties because it may cause chaos by bringing the machinery of government to a halt
.
DECLARATION
Is an order of the court which merely declares what the legal rights of the parties to the action are
without them. It has no coercive force i.e. it does not require anyone to do anything.
NB an application for a declaration can be combined with an application for other types of
remedies. It is a particularly useful remedy in administration law and it is a suitable way to settle
disputes with the government because it involves no immediate threat of compulsion but is
nonetheless effective. It is a wide range remedy that the court will rarely refuse to grant. Lord
Deming In Barnard Vs National Dock Labour Board(1953) 1 ALLER 1113, that," there is no
limit to the power to award a declaration except such limit as the court may impose on itself.
In Agricultural Training Board Vs Aylesbury Mushrooms Ltd (1972) 1 ALLER 280
A declaration was obtained to the effect that certain statutory instruments that had been passed
were ultra-vires. In Ridge Vs Baldwin, where a police officer obtained a declaration that his
dismissal was invalid.
All in all, any act of a public authority may be challenged in declaratory proceedings claiming that
it is ultra-vires and void.
CIRCUMSTANCES WHERE COURT MAY REFUSE DECLARATION
1. To speculators and busy bodies asking hypothetical questions.
In Russian commercial; and industrial bank Vs British bank for foreign trade (1921) 2 AC
438, H.O.L. said; that the question must be read and not a theoretical question, the person raising
it must have a real interest to raise it and he must be able to secure a proper contradictor or
defendant i.e. some one presently existing who has a true interest to oppose the declaration sought.
In other wards there a genuine legal issue between the 2 parties.
In Re; Varnato (1949) Ch 258, Court said; declaration can not be awarded to answer academic
questions. In that case, the applicant sought a declaration to determine whether if an advance were
to be made from a trust fund, estate duty might in certain circumstances be payable. Court held
that whereas it might be convenient for a trustee to get such a determination, the court could
not award it because if people could go to court merely because they wanted guidance on the
orderly of their affairs, they would be no end to the litigation that could follow.
2. Where it's result would be to embarrass and prejudice the security of the state.
In Opolot Vs AG (1969) EA 631, the appellant was formerly a brigadier in the Ugandan army
and chief of staff. In 1966, he received a letter informing him of his discharge from the army and
was subsequently detained under emergency regulations. He sought a declaration that his discharge
from the army was invalid and of no legal effect and that he was still a member of the army and
chief of staff. Trial judge held; that the right to a declaratory judgement is discretionary and that
in exercise of that discretion, he did not consider this a case in which he would be justified in
making the declaration sought. On appeal, it was further held that discretion any power to grant a
declaration should only be exercised with the greatest caution and where the declaration sought
would embarrass and prejudice the state; it will not be granted.
However, it should be noted that the decision in Opolot V AG is no longer good law in so far as
it was upholding the common law principle that the crown had the right to appoint and disappoint
at any time even without reasons. In Uganda today, such a decision has been overtaken by events
and Constitutional provisions. This decision was reconsidered in Fox Odoi V AG.
3. No declaration of specific performance for breach of contracts of employment. If an employer
wrongfully dismisses an employee, the employee can only seek damages and can not obtain a
declaration that his / her dismissal is a nullity because in that case the employment would still
continue.
The rationale is that under common law, the master always has power to dismiss the servant.
However, in the field of public employment or service, public authorities must keep within the
limits of the powers given to them by statute. Accordingly, where a public servant is dismissed in
contravention of the relevant law, he/ she may obtain a declaration prolonging their employment.
Is what is in; Ridge Vs Baldwin(1964) A 40
Cooper Vs Wilson (1937) 2 KB 309
Vine Vs National Dock Labour Board (1957) AC 488
4. If it's effect would be to usurp of the body in question.
In Shah Vs Barnet London Borough Council, the council refused to grant Shah a grant to attend
to university on the ground that he was not ordinarily resident in the council. Shah sought a
declaration to the effect that the council had made an error and that he should be awarded the grant.
Court held that a declaration was not the appropriate remedy in the circumstances as it would usurp
the council's powers to grant or deny an applicant a grant.
5. For a matter which is not within the realm of law, i.e. political matters that are not clearly defined
and regulated by specific legal provisions. This was held in the case of Malone Vs Metropolitan
Police.
DAMAGES
A person aggrieved by the act or decision of a public authority which amounts to a tort or a breach
of contract can sue the government or authority for damages in the accordance with the government
proceedings Act Cap 77.
Damages can be classified into 3 types.
1. Special damages.
These can be claimed in respect of matters whose value can be quantified and specifically proven
e.g. through receipt for goods and services issued to the plaintiff.
In Kafumba Mukasa Vs AG (1980) HCB, Court held that without receipt or other specific proof,
a cause of action for specific damages may not succeed.
2. General damages.
Are damages which can not be specifically ascertained, they include compensation awarded for
pain and suffering, inconveniences, loss of future prospects. In Departed Asians Property
Custodian Board Vs Kayondo (1982) HCB 1, Court held that general damages are awarded at
the discretion of court.
3. Exemplary damages.
These are awarded as a deterrent or punishment of the defendant. Where the defendant's conduct
has been oppressive and arbitrary e.g. in cases of false imprisonment.
Obong Vs Municipal Council Of Kisumu(1971) EA
NON-JUDICIAL REMEDIES
These are remedies which are not obtained from court.
-I.G.G
-Commissions of inquiry
-Uganda Human Rights Commission
Relevant law;
Commission of inquiry
Administrative bodies which are adopted or constituted to investigate any matter of public concern.
S.1 of commission if inquiry acts.
Art 99 delegation of powers, ministers can act for the president.-when an allegation has been made
e.g accident
2000- Rampant closure of banks and certain recommendations made.
1999- Rampant corruption of police force-certain heads e.g Bakiza etc. Justice Julia Sebutinde.
Exploitation of Congo resources -led by Justice Porter
An instrument signed by the authority and should be gazetted to give it legal backing S.15 of CIA
and it indicates terms of reference- subject matter and area to cover e.g corruption in URA.
Duration of the inquiry
S.1 (2) CIA
- empowered to call witnesses and question them e.g in writting S.9 -commissioners are given
powers of high court
-can change contempt of court.
S.12- appear with an advocate.
-Act impartially and fairly-observe rules of National justice.
Aslund V s A.G S.6 CIA --S.4
-make recommendations / report and signed by commissioners
Justice Katsusi in Aslund Vs A.G to the authority and not allowed to implement
- free to adopt their own rules of procedure to guide them in conduct of their work.
Importance;
1. They allow some things which could not be handled by court because of it's informality' political
nature etc.
2. Held in public and open to every body.
3. can lead to other remedies to be granted.
Failures.
-In effective reporting and implementation e.g commission of inquiry of minerals in Congo and
gold scandal during Obote 1.-no powers to punish.
-stigmatisation of individuals
-expensive and under funding
-temporarily therefore continuous existence of the problem therefore partial solutions are provided.
-political influence (undue influence from the state)
Quorum S.1
Aslund Vs AG -quorum was the chairperson and any of the 2 commissioners but 2 minus chairman
is invalid.
TOPIC
PROCEEDINGS AGAINST GOVERNMENT
Brief background
Under common law, it was a general presumption that the crown could not do anything wrong. In
theory the crown could do no wrong therefore no liability could ensue against it. Therefore legal
proceedings against government were restricted on this ground because government was her/ his
majesty's government. This is what is otherwise referred to as immunity from liability. This old
age theory that the King could do wrong ignored the fact that the King had a personal capacity as
well as a political. This was inappropriately inherited by almost all erstwhile British colonies,
Uganda inclusive.
However, common law recognised limited legal liability against government and this could be
instituted by way of a royal fiat / petition of right. Under this procedure, the prospective litigant
against the crown could seek permission of the crown itself before he could commence
proceedings.
Before 1947, in England, an action could be ‘brought against a Crown servant as a nominal
defendant, on the understanding that the Crown would satisfy any judgement against him.’ A
Royal commission submitted a draft bill of reform but the bill did not become law. When, in 1946,
the House of Lords refused to uphold the fiction of the nominated defendant reform could no
longer be delayed.
In torts, there was a prerogative immunity which was based on vicarious liability against
government. Public officers had to be sued in their personal capacity. After great agitation, the
Crown Proceedings Act, 1947, was passed and it subjected the Crown to private law, with serious
reservations.
In relation to the change in British colonies especially East Africa, it was submitted that it was
desirable in a modern democratic state, that subject to certain safeguards, the Government should
be able to sue and be sued as if it were a private person of full capacity. ‘If state action results in
individual damage to particular citizens, the state should make redress, whether or not there is fault
committed by the public officers concerned. The state is, in some ways, an insurer of what is often
called social risk.’ As a result, the iniquitous rule whereby government is not liable, in tort or
breach of contract committed by its servants has long been discarded.
Ugandan position
The government proceedings act was modelled on the Crown Proceedings Act 1947. The GPA
makes it possible for government to be sued as if it was a private person. GPA cap 77. There are
special procedures and exemptions that may affect government liability contained in the Civil
Procedure and Limitation (miscellaneous provisions) Act cap 72.
When is government liable?
The Government Proceedings Act imposes legal liability on government in respect of;
-contracts
-torts
-breach of statutory duty
-any breach of those duties which a person owes to his servants or agents at common law by reason
of being their employee.
Contract
Under common law, liability under contract could only be enforced by way of a royal fiat. This
position was found to be unsuitable when governments became increasingly party to contracts
which were of a commercial nature. Such contracts included; contracts for supply of goods,
services, construction contracts, employment contracts etc. Such contracts required each party to
meet it's obligation under contracts. S.2 of GPA provides that government may be sued in contracts
as if it was a private person. This therefore means that government can contract as if it was a private
person and once it contracts, it's bound by the laws of contract. Such contracts may be enforced
under the general law of contract or under the specific laws relating to various contracts e.g
employment contracts may be enforced under provisions of the Constitution, public service laws,
public service regulations and standing orders.
Section 2 of the Government Proceeding Act provides that where any person has a claim against
the Government after the commencement of this Act and the claim is either (a) a claim based on
contract which, if this Act had not been passed, might by virtue of the Suits By or Against the
Government Ordinance have been enforced by an action against the Government; or (b) such that,
if it had been made in England against the Crown in right of its Government in the United Kingdom
and if the Crown
Proceedings Act, 1947, of the United Kingdom had not been passed, it might have been enforced
in England, subject to the grant of Her Majesty’s fiat, by petition of right, then, subject to this Act,
the claim may be enforced by proceedings taken against the Government for that purpose in
accordance with this Act. The section evidently shows among others that Uganda applies the
common law principles before 1947 to proceedings against government.
Unenforceable Contracts
They may be unenforceable contracts against government. Examples of such contract are void
contracts, contracts deemed to be contrary to public policy for instance contracts to commit crimes,
illegal contracts, and contracts entered into when the parties had no capacity. Stinger Vs Minister
of local government
Contracts involving money payment are only enforceable where parliament has provided for the
necessary funds. Contracts which may be in form of treaties are unenforceable in the domestic
perspective unless they have been part of municipal law.
Characteristics of government contracts
The contracts have usual attributes of private contracts e.g consideration, agreement, parties, terms
and conditions. There are however, special features which are common in government contracts;
1. They are normally executed by senior public officers usually a minister, permanent secretary or
an ambassador especially if the country and public officer executing the contract on behalf of
government. Personal liability may arise where public officer has failed / refused to oblige with
the applicable law and procedures.
2. They are usually executed after the tendering process; it is an open and competitive biding
process.
3. Entered on standard terms and conditions of contract, government sets terms and conditions and
the other party usually accept in a stronger position in bargaining position and set terms.
TORTS
Section 3 of the Government Proceedings Act (herein called GPA) provides that subject to this
Act and section 4 of the Law Reform (Miscellaneous Provisions) Act, the Government shall be
subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it
would be subject (a) in respect of torts committed by its servants or agents; (b) in respect of any
breach of those duties which a person owes to his or her servants or agents at common law by
reason of being their employer; and (c) in respect of any breach of the duties attaching at common
law to the ownership, occupation, possession or control of property, except that no proceedings
shall lie against the Government by virtue of paragraph (a) of this subsection in respect of any act
or omission of a servant or agent of the Government unless the act or omission would, apart from
this Act, have given rise to a cause of action in tort against that servant or agent or his or her or
estate.
Section 3 (2) of GPA, provides further that, where the Government is bound by a statutory duty
which is binding also upon persons other than the Government and its officers, then, subject to this
Act and section 4 of the Law Reform (Miscellaneous Provisions) Act, the Government shall, in
respect of a failure to comply with that duty, be subject to all those liabilities in tort, if any, to
which it would be so subject if it were a private person of full age and capacity.
Under section 3 (3) of the GPA, where any functions are conferred or imposed upon an officer of
the Government as such, either by any rule of the common law or by any
enactment, and that officer commits a tort while performing or purporting to perform those
functions, the liabilities of the Government in respect of the tort shall be such as they would have
been if those functions had been conferred or imposed solely by virtue of instructions lawfully
given by the Government.
Section 3 (4) of the GPA states that any enactment which negatives or limits the amount of the
liability of any Government department or officer of the Government in
respect of any tort committed by that department or officer shall, in the case of proceedings against
the Government under this section in respect of a tort committed by that department or officer,
apply in relation to the Government as it would have applied in relation to that department or
officer if the proceedings against the Government had been proceedings against that department
or officer.
However, under section 3 (5) of the GPA, no proceedings shall lie against the Government by
virtue of this section in respect of anything done or omitted to be done by any person while
discharging or purporting to discharge any responsibilities of a judicial nature vested in him or her,
or any responsibilities which he or she has in connection with the execution of judicial process.
From S.3 GPA Cap 77 above, government is liable in torts under the following limbs;
- Vicarious liability
-Employer's liability
-Occupier’s liability.
Vicarious Liability
It arises like where there is master and servant relationships; employer and employees
relationships. Under vicarious liability, a master / employer is liable for the torts committed by his
servants during the course of employment while in duty. Such torts can only arise where a
servant is acting within the scope of employment. Thus, where a servant of then state commits a
tort in the course of his employment, the servant and the state are jointly and severally liable. See
section 3(1) (a) of GPA makes government liable for torts committed by its servants or agents.
What is scope of employment?
a) Scope means doing what is expressly or by implication authorised.
b) Doing what is authorised in a way which is not authorised e.g. driving recklessly.
c) What is incidental or consequential upon what is authorised.
In Muwonge Vs AG (1969) EA7, Newbold P stated that ‘the policemen had been sent to quell a
riot and the means given to them was the refile having found the riot going on, one of the police
fired just like others. For that reason the use of rifles must have been contemplated by their seniors
and thus the act of the policeman, was in the course of his duty and the government was vicariously
liable.’
In Piovano V AG [1972] EA, Court held that the test to be applied in such cases was that, the
wrong of the servant must be the natural result of his carrying on his master’s business or duties.
Mukwase Vs AG (1972) HCB 29
In Namwandu V AG [1972] EA, court held that at the time of the accident, the soldiers were
acting on frolic of their own and not doing anything for their masters as such, government could
not be held vicariously liable for the torts committed by them.
Employer's liability
S.3 GPA provides that government will be liable for breach of those duties which a person owes
his servant or agents at common law by reason of being their employer.
a) Reasonable for safety in employment by employing competent staff.
b) Provision of safe, suitable place and tools of work which are appropriate.
c) Provision of effective supervision and system of work e.g. when injured at work, compensation
is provided for under worker's compensation act, an employer has a duty to pay
Occupier's liability
Government as an occupier of premises is also under a legal obligation to ensure safety of those
premises. S.3 GPA makes government liable for breach of those duties which under common law
are attached to ownership, occupation, possession or control of property and generally these duties
relate to safety of the property to invitees( people who are legally there) or neighbours ( persons
likely to be affected by that ) e.g. nuisance.
Exceptions to liability
Liability of government may in some cases be limited in certain circumstances e.g
1. Where under any law, the responsible officer of government is absolved from liability for a
particular act/ omission e.g. police officers are not liable when they act in good faith in carrying
out their duties as under the police act.
2. Judicial immunity which protects judicial officers who may act in a manner which
inconveniences other persons e.g. wrong decision. In Anderson Vs Gorrie, Court was of the view
that no action can lie against a judicial officer even where it is shown that the judicial officer was
malicious or corrupt. In AG Vs Oluoch, the Magistrate was sued together with the AG and police
officers for wrongful arrest and detention. AG challenged the suit was misconceived because it
was brought against magistrate who had judicial immunity. Court held a suit could not be
maintained against a public officer who had judicial immunity.
3. Act of state doctrine as a defence.
This means that transaction between state and foreign powers can not give rise to any action/suit
under municipal law to individuals.
In Olle Njogo Vs AG, which involved the treaty between British government and Masai county
and British government challenged the suit since it was an act of state and can not lie in a municipal
court. Court held not acceptable to sue state. In Katikiro of Buganda Vs AG, the State
successfully plead act of state doctrine relating to 1955 Buganda agreement.
4. Torts committed by members of armed forces, as member of the armed forces can not sue
government for personal injuries which are inflicted by another member of the forces while on
duty.
PROCEDURAL MATTERS
S.7 GPA provides all civil proceedings by or against the Government in the High Court shall be
instituted and proceeded with in accordance with rules of court and not otherwise. There are
however, a few exceptions which are mainly contained in Civil Procedure and Limitation Act
(miscellaneous provision Act).
NB. To protect public interest some of the important procedural matters include; specific
procedures which apply to government not other entities.
1. Statutory notice.
S.2 of Civil Procedure and Limitation (miscellaneous provision) Act It provides inter alia that no
suit shall be brought against government, local authority or scheduled corporation until a statutory
notice of 45 days has been served. The purpose of the notice has been served to appropriate officer
(Attorney General) or the head of scheduled corporation or CAO in Local Government. The
requirement of notice are based on the idea that on receipt of notice, government will make a
decision as to it's whether it is necessary to entertain the suit.
The notice includes the substance of the claim, amount of money claimed or other relief and also
a summary of elements supporting the claim. The section also provides that the plaint against the
government must also include the clause specifically pleading that notice was served.
DR. J.W. RWANYARARE AND 2 OTHERS -V-SATTORNEY GENERAL: MISC. APPLICA
TION NO. 85 OF 1993
The High Court held that in matters concerning the enforcement of human rights under the
Constitution no statutory notice was required because to do so would result in absurdity as the
effect of it would be to condone the violation of the right and deny the applicant the remedy.
Historic Resources Conservation Initiatives & Others v AG (decided in 2012)

The plaintiffs, filed a suit against the Attorney General seeking among other reliefs a declaration
that the proposed demolition of the Uganda Museum and a permanent injunction against the
demolition. It was averred that the suit was barred in law and should be struck out because the
defendant was not served with the Statutory Notice of intention to sue and the plaint did not allude
to such service.
HELD
That the action of the plaintiffs did not pre-empt any act of the Attorney General that would have
infringed on the rights of the plaintiffs and this case was not considered to be one of the exceptions
where a forty five day Statutory Notice would not be required. The failure of the plaintiffs to serve
the Statutory Notice renders the plaint incompetent before this Court
Greenwatch V Uganda Wildlife Authority and AG

In this application the applicant sought an order for temporary injunction against the respondents
restraining them from exporting or relocating any chimpanzee from Uganda to the Peoples
Republic of China or any other place or country in the world. When the matter came up for hearing,
counsel for the respondents raised a preliminary objection to strike out the application on the basis
that, the respondents were not issued with a statutory notice as required by the
Government Proceedings Act
HELD Per JUSTICE GIDEON TINYINONDI

I agree with this requirement that the respondent usually the Government or a scheduled
Corporation needs sufficient period of time to investigate a case intended to be brought against it
so as to be able to avoid unnecessary expense on protracted litigation.
This rationale cannot apply to a matter where the rights and freedoms of the people are being or
are about to be infringed. The people cannot afford to wait forty-five days before pre-emptive
action is applied by Court. They need immediate redress. They need a short period which is one
provided under the ordinary rules of procedure provided by the Civil Procedure Act and its Rules.
To demand from an aggrieved party a forty-five days' notice is to condemn them to infringement
of their rights and freedoms for that period which this
Court would not be prepared to do.
However court has held that this requirement is not mandatory.
KABANDIZE and 20 Ors v KCCA (decided in 2014)
All the appellants were employed by the respondent for periods ranging from 6 to 36 years on
permanent terms. On 1st April 1997, the respondent terminated the employment of all the
appellants and paid them a specific package amount specified in their termination letters.
The appellants were not satisfied with the payments received and claimed the amounts paid were
less than that they were entitled to under their terms and conditions of service. They brought a suit
at the High Court to recover their claim. The High Court Judge held that the suit was incompetent,
as the appellants had failed to prove that they had served the respondent with a statutory notice of
intention to sue as required by the above law. The appellants appealed.
HELD. That Government and all scheduled corporations are under no obligation to serve statutory
notice of intention to sue to intended defendants. On the other hand ordinary litigants are required
to first issue and serve a 45 days mandatory notice upon Government and scheduled corporations.
That in view of Article 20(1) of the Constitution a law cannot impose a condition on one party to
the suit and exempt the other from the same condition and still be in conformity with Article 20(1)
of the Constitution. Be that as it may, the Constitution must be complied with by according parties
to an intended suit equal treatment and protection of the law. That Section 2 referred is not a law
that treats all persons equally before the law neither does it accord them equal protection. That
the requirement to serve a statutory notice of intention to sue against the Government, a local
authority or a scheduled corporation is no longer a mandatory requirement in view of Articles 274
and 20(1) of the Constitution, and therefore non compliance with that impugned Section 2 does
not render a suit subsequently filed incompetent.
2. Suits against the government are brought against the AG article 119 of the Constitution. It
provides that the Attorney General shall represent government in courts or any other legal
proceeding in which government is a party. Section 10 of the GPA, provides that Civil proceedings
by or against the Government shall be instituted by or against the Attorney General. Section 11
thereof requires that all documents required to be served on the Government for the purpose of or
in connection with any civil proceedings by or against the Government shall be served on the
Attorney General.
3. Suits against AG may be brought in any court which has jurisdiction over the matter in question.
The AG may however, apply for a suit to have the suit transferred to high court, if it is filed in
lower courts and AG may make the application where there is an opinion that an important matter
of l aw may arise from that suit. This is provided under section 13 of the GPA.
4. Limitation periods relate to periods in which an action must be brought against a party. Under
S.2 of Civil Procedure and Limitation Act, no action founded on tort can be brought against
government, local authority or scheduled corporation after the expiry of 2 years from the date of
which the action was done. The section also provides that no action founded on contract shall be
brought after expiry of 3 years from the date on which the action arose.
Other rules which give special exemption to government relate to remedies and evidence.
Remedies in civil proceedings may with a few exceptions be made available against government.
However, there some remedies which are not available against government as provided under
section 14 of the GPA.
These include;
a) Injunction .
b) Specific performance and
C) No remedy of attachment can issue against government property i.e. can not attach government
property. Section 19 (4) of the GPA Cap77. It provides that except as is provided in this section,
no execution or attachment or process in the nature of an execution or attachment shall be issued
out of any court for enforcing payment by the Government of any such money or costs as are
referred to in this section, and no person shall be individually liable under any order for payment
by the Government, or any Government department or any officer of the Government as such, of
any such money or costs.
S.14 Civil Proceeding and Limitation Act, provides that an injunction, specific performance and
attachment can not be awarded.
S.19 of GPA provides for the state faction of orders against government where a person has been
granted, he can on application in that behalf made at any time after the exemption of 21 days from
date of the order or in case the order of costs to be paid.
In the case of Attorney General v. Silver Spring Hotel Ltd., the Supreme Court stated that an
injunction whether temporary or permanent could not lie against the government, the rationale
being that the government machinery should not be brought to a halt and embarrassment merely
to satisfy private interests.
However, the courts shifted position in the aftermath of enactment of the 1995 Constitution. Hence
in the case of Osotraco [U] Limited v. Attorney General, where Ministry of Information
employees had occupied and refused to vacate the plaintiff company’s property at Mbuya Hill,
orders were sought for the eviction from the property and a permanent injunction from occupation
against the defendants from the suit premises. The court found that the plaintiff company was the
registered proprietor of the property. On the issue of whether court could make an order of vacant
possession against the government, Court stated that Section 15 (now S.14) of the Government
Proceedings Act prohibited court from making any order for the recovery of land or property, and
instead enjoined it to make a declaratory order that the complainant was entitled to such property.
The Court found that this provision ran counter to the spirit of the 1995 Constitution, because such
a ruling would have deprived the successful party of the most appropriate remedy namely, recovery
of his or her land.
Court noted that since Section15 of the Government Proceedings Act had been rooted in the non-
immutability of state powers and immunities, Article 126 of the 1995 Constitution enjoined the
courts to administer justice in the name of the people.
Egonda-Ntende. J., pointed out that,
“If government is in wrongful occupation of property, substantive justice demands that it

be ordered to vacate. A declaratory order leaves a successful party at the mercy of
government functionaries as to when he is to enjoy the fruits of successful action against
government, for the declaratory order cannot be enforced”.
On appeal, AG V Osotraco the state’s contention was that the learned judge erred in interpreting
the constitution, a duty that was reserved for the Constitutional Court only under Article 137. In
the lead judgment of the court, Justice Mpagi Bahigeine upheld the lower court’s decision, stating
that the learned judge had not interpreted the constitution but was merely bringing the Government
Proceedings Act into conformity with the 1995 Constitution under Article 273.
d) An exparte judge can not be made in default of appearance of government under the Government
Proceedings (civil procedure) Rules.
e) State privilege in the law of evidence S.121 EA and 132.
They give the state privilege in the law of the evidence, that public officer cannot be compelled to
give evidence relating to confidential government public communication.
See article 41 of the Constitution. See, Tinyefunza Vs AG see Zachary Olum & Anor v AG
Is it a justifiable protection of the state? are they in line with art 41
In the case of Green Watch (U) Ltd v. A.G and Anor., the petitioner claimed that it had a right of
access to the Power Purchase Agreement (PPA) pertaining to the proposed construction of a hydro-
electric power dam at Bujagali Falls on the River Nile. The respondents raised a number of
objections regarding the appropriateness of the application and argued that it had not infringed the
right since it was not a party to the PPA. The Court was therefore tasked to determine whether the
PPA was a ‘public document’ within the meaning of Section 72 of the Evidence Act. The Court
described the elements of the right to information, holding that the right under Article 41 did not
only envisage possession of the required information. Therefore, the fact that the state was not a
party to the PPA did not excuse it from having to avail the information sought. On this point Justice
Egonda–Ntende stated: “Article 41(1) of the constitution refers to information in the possession of
the state …. The state does not have to be a party to the agreement.”
In Tinyefuza’s case, Mulenga JSC noted that where the state contended that the information sought
fell within the ambit of the restriction in Article 41(1), it had the burden to prove that the disclosure
of such information was likely to prejudice the security or sovereignty of the state.
In Zachary Olum and Anor v. Attorney General, Court was concerned with the discretion given
to the speaker of Parliament to grant or reject leave to a member of parliament to use proceedings
of the house in evidence before a Court of law under Section 15 of the National Assembly (Powers
and Privileges) Act. Justice Mpagi Bahigeine considered S.15 to be prescribing a special procedure
for accessing information in the possession of Parliament which was inconsistent with Article 41
of the Constitution.
CONTROL OF PUBLIC FINANCE

The constitution provides for management of public funds under Chapter 9 i.e. Articles 152 to 164.
Article 152 (1) - a collection of taxes which is the major source of revenue other sources being
fees, loans and grants.
Government Budget Process
The present legal framework for budget formulation, execution and external audit is provided by
the 1995 constitution, as amended in 2000 and 2005, the new Public Finance Management Act
2015 (as amended), the Judicature Act 1996, the Local Governments Act 1997, the Statistics Act
1998, the Leadership Code Act 2002, the Inspectorate of Government Act 2002, the Local
Government Finance Commission Act 2003, the Public Procurement and Disposal of Public Assets
Act 2003 and Amendment Act 2011, the Access to Information Act 2005, the Anti-Corruption Act
2009, Public Service Standing Orders, the Local Government Financial and Accounting
Regulations 2007 and the National Audit Act 2008
The Budget Act 2000 provides for and regulates the budgetary procedure for efficient budgetary
process. The Act defines the budget as a process by which government sets levels to efficiently
collect revenue and allocate the spending of resources among all sectors to meet the national
Objectives.
The Budget Act prescribes the budget information and timing that Government is required to
present to Parliament. The Act also regulates budget procedures within Parliament. The
Constitution and the PFMA give the Ministry of Finance, Planning and Economic Development
(MoFPED) the mandate to plan and manage public finances.
Article 153- states that there shall be a consolidated fund into which shall be paid all revenues and
other monies raised or received for the purpose of or on the behalf of or in trust for the government.
A consolidated fund is one which consists of taxes and any other revenue payable to the State.
Article 154 (1) – no money shall be withdrawn from the consolidated fund except:
a) To meet the expenditure charged on the fund by this Constitution or by an Act of Parliament
b) Where the issue of those monies has been authorised by an appropriation Act.
No money shall be withdrawn from the consolidated fund unless the withdrawer has been
authorised by the Auditor General. If the president is satisfied, then he can sign for release.
Appropriations Act
This law is adopted by Parliament every year to authorise the Executive to finance goods and
services required by any ministry or government departments in the financial year in question. The
Appropriations Act once signed by the Head of State, finances the budget process for any one
financial year.
Vote on Account (VOA)
VOA is a sanction of Parliament for withdrawal of money from the consolidated fund to meet the
government expenses before Parliament approves the budget. It is not meant to last longer than 3
months. VOA is only on expenditures appropriated by Parliament and not on statutory
expenditures.
Appropriated expenditures must be debated and voted by parliament. However, statutory
expenditures are directly charged on the consolidated fund by the constitution or an Act of
Parliament.
NOTE: Statutory expenditure requires no Parliamentary approval as they are already State
obligations, i.e. Public Debt, pensions salaries of state officials e.g. Presidents, vice-President,
Prime Minister, Chief Justice etc.
Money voted by Parliament under the Appropriations Act (the Budget) is to finance government
services through the country. The law requires the Auditor General, when satisfied with the
correctness of those warrants to give approval to those warrants before money can leave the
consolidated fund account. It should be noted that the right to authorise public expenditure is vested
solely in Parliament through the enactment of the Appropriations Act.
The Public Finance Act 2003 (PFA)
The Public Finance Management Act 2015 was enacted to provide for fiscal and macroeconomic
management; to provide for the Charter for Fiscal Responsibility; to provide for the Budget
Framework Paper; to provide for the roles of the Minister and the Secretary to the Treasury in the
budgeting process; to provide for virements, multiyear expenditures, supplementary budgets and
excess expenditure; to provide for the Contingencies Fund; to provide for the Consolidated Fund
and commitments against the Consolidated Fund; to provide for bank account management,
management of expenditure commitments, raising of loans by the Minister, management of the
Government debt, authority to receive monetary grants and assets management; to provide for the
roles of Accounting Officers; to establish accounting standards and audit committees; to provide
for in-year reporting; to provide for the preparation of annual accounts and for the accounting
for classified expenditure e; to establish the Petr oleum Fund and the collection and deposit of
revenues into and the withdrawal of revenue from the Petroleum Fund and for the management of
the Petroleum Revenue Investment Reserve; to provide for the role of Bank of Uganda in the
operational management of the Petroleum Revenue Investment Reserve; to provide for the
establishment of the Investment Advisory Committee; to provide for the financial reports, annual
reports and annual plans of the Petroleum Fund and the Petroleum Revenue Investment Reserve;
to provide for the sharing of royalties; to provide for offences; to repeal the Public Finance and
Accountability Act, 2003 and to provide for connected matters.
The PFM Act specifies the budget calendar, the main contents of budget documents, and the roles
of the legislature and the executive in the budget process
The PFMA and related regulations and instructions provides the legal framework for enhancing
the internal control and management of public resources along with fiscal transparency and
accountability
The power to raise external financial resources is vested in the Minister responsible for Finance,
Planning and Economic Development. Both the Cabinet and Parliament should approve all
external borrowings. Parliament is also required to approve all loans including domestic borrowing
and any PPPs with contingent liabilities.
Expenditure management is supplemented by a number of initiatives in physical performance
management. The Minister responsible for Finance, together with MoPS, MoWT and PPDA, now
aims to improve service delivery by holding Accounting Officers and Chief Administrative
Officers personally responsible for the accounting of expenditures.
Annual performance contracts are agreed with top civil servants down to the level of Heads of
Departments to strengthen performance management and enhance transparency and
accountability.
The Auditor General and the National Audit Act 2008 (NAA)
This gives effect of Article 163 of the Constitution of Uganda- Auditor General.
Article 163 (1) and S. 4 of the National Audit Act provides for the appointment of the Auditor
General that he shall be appointed by the president with the approval of Parliament.
Article 163 (6) and S. 14 of NAA state that the Auditor General shall not be under the control of
any authority.
Article 163 (3) (9) and S. 13 of NAA – to audit and report on public accounts of Uganda and of
all public offices including the courts, the central and local government administrations,
universities and public organisations established by an Act of Parliament.
Article 154 (3), S. 83 (2) Local Government Act (LGA) provides that the Auditor General as the
sole authority to give approval for any money to be withdrawn from the consolidated fund account,
the general fund account or any district account.
Public Accounts Committee (PAC)
This examines the Auditor General’s report and enforces accountability of the officials of the
executive after detailed interviews.
Inspectorate of Government Act 2002 (IGG)
Article 223 establishes the functions of the Inspectorate of government, while Article 225 (1) spells
out the function.
S. 10 of the IGG Act 2002 gives the Inspectorate independence in performance.
S. 14 (5) gives special powers to investigate, cause a legal action where public office is misused.
Leadership Code Act 2002
S. 8 provides for penalties. There is no doubt that the imposition of a code of conduct on leaders
and requirement of them to declare their wealth is a necessary requirement in the fight against
abuse of office.
Ministry of Finance, Planning and Economic Development (MFPED):

The ministry is mandated to formulate policies that enhance stability and development; mobilize
local and external financial resources for public expenditure; regulate financial management and
ensure efficiency in public expenditure; oversee national planning and strategic development
initiatives for economic growth.
The Ministry plays a critical role in fulfilling the accountability sector’s mandate, covering
economic management (macroeconomic policy, financial services, development policy and
investment promotion, research and monitoring); mobilisation of resources (tax policy, debt
management, budget preparation, execution and monitoring and project management); and
accounting for the of resources (accounting policy/management, procurement policy, and internal
audit).
Uganda Revenue Authority (URA):

URA is mandated by the Uganda Revenue Authority Act No. 6 of 1991 to assess, collect and
account for all Central Government tax revenue (including non-tax revenue) and to advise
Government on revenue implications, tax administration and aspects of policy changes relating to
all taxes as spelt out in the URA Act.
Uganda Revenue Authority plays a critical role in fulfilling the accountability sector’s mandate,
mainly covering the mobilisation and management of tax and nontax revenues and specifically,
addressing the accountability sector objective of increasing the tax to GDP ratio.
Office of the Auditor General (OAG):

Article 163 (3) of the Constitution of the Republic of Uganda establishes the Office of the Auditor
General and its mandate as detailed in Section 13(1) and 18 of the National Audit Act 2008 is to
audit and report to Parliament on the public accounts of all public offices including the courts, the
central and local government administrations, universities and public institutions of like nature,
and any public corporations or other bodies established by an Act of Parliament.
The Office of the Auditor General plays a critical role in fulfilling the accountability sector’s
mandate, mainly covering accounting for the utilisation of public resources through financial
audits, value for money audits and specialized audits.
Public Procurement and Disposal of Public Assets Authority (PPDA):

The PPDA derives its mandate from the PPDA Act, 2003. The PPDA mandate is to ensure the
application of fair, competitive, transparent, non-discriminatory and value for money public
procurement and disposal standards and practices; harmonization of procurement and disposal
policies, systems and practices of the Central Government, Local Governments and Statutory
bodies; setting standards for the public procurement and disposal systems in Uganda; monitoring
compliance of Procuring and Disposing Entities; and building procurement and disposal capacity
in Uganda.
PPDA plays a critical role in fulfilling the accountability sector’s mandate, mainly addressing the
accountability sector objective of enhancing public contract management and performance.
Inspectorate of Government (IG):

The Inspectorate is the lead anti-corruption agency in Uganda, mandated in three broad categories
under Article 225 of the Constitution as the Ombudsman (Mostly proactive); Anti-corruption
(Reactive and coercive); and Leadership Code (Ethics Body; proactive and coercive). The
Inspectorate of Government plays a critical role in fulfilling the accountability sector’s mandate,
mainly addressing the accountability sector objective of enhancing the prevention, detection, and
elimination of corruption through the following functions of the IG stipulated under
Article 225 of the Constitution:

a. Promote and foster strict adherence to the rule of law and principles of natural justice in
administration;
b. Eliminate and foster the elimination of corruption, abuse of authority and of public office;
c. Promote fair, efficient and good governance in public offices;
d. Supervise the enforcement of the Leadership Code of Conduct;
e. Investigate any act, omission, advice, decision or recommendation by a public officer or any
other authority to which this article applies, taken, made, given, or done in exercise of
administrative functions;
f. Stimulate public awareness about the values of constitutionalism in general, IG activities in
particular, through media or other means
Uganda Financial Intelligence Authority (FIA):
The mandate of FIA is given by the Anti-Money Laundering Act, 2013, which provides the
objectives of the authority as to:
•• enhance the identification of the proceeds of crime and the combating of money laundering;
•• ensure compliance with the Anti-Money Laundering Act, 2013;
•• enhance public awareness and understanding of matters related to money laundering;
•• make information collected by Uganda Financial Intelligence Authority available to competent
authorities and to facilitate the administration and enforcement of the laws of Uganda; and
•• exchange information with similar bodies whose countries have treaties, agreements
or arrangements with the Government of Uganda regarding money laundering and similar
offences;
In fulfilling its mandate, FIA plays a critical role in contributing to the achievement of the
accountability sector’s mandate, mainly addressing the sector’s outcome of sustainable
macroeconomic stability.
In Conclusion, there are many players in control of public finance, which include the Legislature,
Executive, Ministry of Finance Planning and Economic Development, Auditor General’s Office
and Central Bank

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ADMINISTRATIVE LAW II

OCHIENG PETER &ORS V PRESIDENT GENERAL OF DP &ORS

Judicial Review is applicable in the following situations:

Factors to be considered by Court before granting the application.

Rule 7A of the Judicial Review Rules as amended in 2019 provides that;

In Associated Provincial Picture Houses Vs Wednasbury Corporation court held that

Pastoli Twinomuhangi Vs Kabale District Local Government (supra)

Ridge Vs Baldwin [1964] AC 40, HELD “a decision reached by an administrative body in

iv) Nature of Remedies to be obtained

Balondemu David v LDC

 The prerogative remedies granted by court are certiorari, mandamus, prohibition,

These are defined under Rule 2 as amended in 2019.

“…certiorari means an order by court to quash a decision which is utra vires

Twinamatsiko Elly V Makerere University

According to the case of John Jet Tumwebaze (supra)

prohibition was held to

“mandamus… is issued in order to compel performance of a statutory duty. It is used to compel

Mukasa Mbidde and Anor v LDC

Wakiso Transporters Tour & Travel Ltd v IGG and Ors.

Wakiso Transporters Tour & Travel Ltd V IGG And Ors.

“Certiorari issues to quash decisions made by a statutory body or by a public officer or an

Picfare Industries Ltd v Attorney General and Anor

The court will consider among other things.

- Whether the application has merit

And any other relevant factor

Muwanguzi Mugalu v Uganda Railways Corporation.

Picfare Industries Ltd v Attorney General and Anor

iv. Doctrine of Ultra Vires – or Illegality or Substantive Ultra Vires

Thugitho v Nebbi Municipal Council (MISCELLANEOUS CIVIL APPLICATION No. 0015

PROCEDURAL ULTRA VIRES

Effect of Failure to follow Procedures

Pastoli Twinomuhangi Vs Kabale District Local Government (supra)

Ridge Vs Baldwin [1964] AC 40, HELD “a decision reached by an administrative body in

MARVIN BARYARUHA V ATTORNEY GENERAL MISCELLANEOUS CAUSE NO.149

………….. It is to everyone’s advantage if the executive exercises its discretion in

Mukasa Mbidde v LDC;

Thugitho v Nebbi Municipal Council (MISCELLANEOUS CIVIL APPLICATION No. 0015

ABUSE OF DISCRETIONARY POWERS

) Acting without evidence.

MARVIN BARYARUHA V ATTORNEY GENERAL MISCELLANEOUS CAUSE NO.149

TUSIIME DOREEN v KAMPALA CAPITAL CITY AUTHORITY CIVIL

LAMWAKA ALICE VERONICA V AMURU DISTRICT LAND BOARD & GULU

DOTT SERVICES LIMITED & Anor v ATTORNEY GENERAL MISCELLANEOUS

PAUL KIHIKA v THE ATTORNEY GENERAL & THE INSPECTOR GENERAL OF

Irrationality is defined by Diplock J as follows:-

“By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury

Contents of a right to a fair hearing

6. Right to legal representation

Circumstances under which the right to a fair hearing may be excluded

REMEDIES IN ADMINISTRATIVE LAW

Historic Resources Conservation Initiatives & Others v AG (decided in 2012)

Greenwatch V Uganda Wildlife Authority and AG

HELD Per JUSTICE GIDEON TINYINONDI

“If government is in wrongful occupation of property, substantive justice demands that it

CONTROL OF PUBLIC FINANCE

Ministry of Finance, Planning and Economic Development (MFPED):

Uganda Revenue Authority (URA):

Office of the Auditor General (OAG):

Public Procurement and Disposal of Public Assets Authority (PPDA):

Inspectorate of Government (IG):

Article 225 of the Constitution:

Uganda Financial Intelligence Authority (FIA):

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