THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)
MISCELLANEOUS APPLICATION NO. 0115 OF 2024
(ARISING FROM MISC.CAUSE NO. 0025 OF 2024)

THE REGISTERED TRUSTEES OF

SHREE SANATAN DHARMA MANDAL:::::::::::::::::::::::::::::: APPLICANT

VERSUS

KAMPALA CAPITAL CITY AUTHORITY:::::::::::::::::::::::::RESPONDENT

BEFORE: HON. JUSTICE SSEKAANA MUSA

RULING
This is an application for a temporary injunction against the respondent
seeking to restrain the respondent or agents/officers and any other persons
from enforcement and/ or implementing in any way of the respondent’s
resolution passed on the 18th of December, 2023 under Minute KCCA
100/25/23 in the respondent Special meeting by which among others
purported to cancel and or rescind the applicant’s estate and interest in the
property comprised in FRV 1290 Folio 4 Plot 110 William Street (the
property), including the resolutions to stopping the applicant from re-
developing the property, and or collection of rent from the applicant’s
tenants over the property, pending the hearing and determination of the
Judicial Review Application.

The application for temporary injunction was supported by an affidavit

sworn by Mr. Raju Vaya-the applicant’s Chairperson.

1. The applicant is the current registered proprietor of the property

comprised in FRV 1290 Folio 4 Plot 110 William Street and has been
an owner thereof in freehold since 2012 when the pre-existing estate
 and interest converted from leasehold into freehold tenure. Prior to
2012, the applicant owned the property as a lease since 1 st November
1957.

2. The applicant is also the proprietor and founder of what is now known
as Bat Valley Primary School (Formerly Shadaben Rambhai Zarerbhai
Patel Shree Sanatan Dharma Mandal School) which school is housed
on part of the property.

3. The applicant’s proprietorship and management over the school was

settled and confirmed in HCCS No. 672 of 2000 [The Registered
Trustees of Shree Sanatan Dharma Mandal v Kampala City Council]
pursuant to a court Judgment issued and or sealed on the 15 th of
January, 2002.

4. That the School is otherwise a Government Grant Aided School but

owned, founded by and seated on part of the applicant’s land; and is
governed by the School Management Committee comprising of 9
members of which 5 are appointed by the applicant while the other 4
are appointed by the respondent, 2 of whom are elected by the
respondent to represent the interests of the parents.

5. That the major structural developments housing the school were

constructed in the 1960’s and have since become dilapidated and are
subject of several public health condemnation notices.

6. That the applicant therefore introduced a re-development proposal for

the construction of new school structures as well as the further
utilization of the rest of the property for the establishment of a
Secondary school and teaching Hospital, all within the covenanted/or
restricted user rights. The Applicant’s proposed redevelopment of the
property was duly approved by the School Management Committee
and further by the Respondent’s Central Division Council.
 7. That on 18th December 2023, the respondent at its Special meeting
passed a resolution under Minute KCCA 100/25/23 (Resolution) under
which, among others;
(i) It directed Kampala District Land Board to cancel and rescind
the applicant’s freehold estate and interest in the property;
(ii) It halted the proposed re-development of the school and the
property.
(iii) Stopped and/or reversed the payment of all the rent being
collected from the property by the applicant and directed that
the said rent be paid to the respondent.

8. The applicant is challenging the respondent’s resolution for being ultra

vires, unjust, illegal and irrational.

While the respondent filed an affidavit in reply sworn by DAN Muhumuza–

The Clerk to the Authority-KCCA;

1. The respondent on 18th December 2023, at a special meeting made

resolutions by largely adopting recommendations by the Auditor
General and Parliamentary select committees to among others;

2. To maintain Bat Valley Primary School as a Universal Primary

Education School and in its current location.

3. That the Council also adopted and implemented the Auditor General’s
recommendation that Kampala District Land Board rescinds/cancels
the Freehold title that was illegally and irregularly granted to the
Registered Trustees of Shree Sanatan Dharma Mandal in respect of Bat
Valley Primary School.

4. The Council further resolved that KCCA carries out a supervisory role
on behalf of Government towards Bat Valley Primary School since it is
a Government aided school.
5. The Council further Vetoed with immediate effect, the resolutions of
the Central Division Urban Council pursuant to Section 34(1) of the
Kampala Capital City Act and halted the process of approving any
plans by the applicant.

6. That KCCA Management and the Legal Department de directed to

pursue the legal processes to ensure that this UPE school is returned
to KCCA, including setting aside the Kampala District Land Board
Order, litigation and applying to set aside the consent Judgment
among others to ensure that the fraudulent process is overturned.

7. That the Council resolved to preserve Bat Valley Primary School due
to its historical significance to the city and its contribution towards
educating the poor. In the same vein that the standing Committees of
Education and Social Services together with that of Physical Planning
should expedite the Bill for Ordinance on the preservation of Historical
sites and monuments.

8. That the Council adopts and implements the recommendations in a

report by the select Committee of Parliament inquiring into the
irregular take over of land belonging to public schools in KCCA in
2015.

9. That the school had been taken over by the Government in 1964 by an
Act of Parliament and after the expulsion of the Asians from Uganda
in 1972 it remained under the Government of Uganda and was never
declared as an expropriated property.

10. That the school was repossessed by the Registered Trustees of Shree
Sanatan Dharma Mandal in 1991 and the user of the property was
maintained as a School.

11. That the resolution of council halting plans by the applicant to put
buildings on the school land was informed by the applicant’s intention
of putting up commercial structures on the land as per minute 106.5 of
the Council meeting. The said intended commercial structures are
 contrary to the conditions of grant of freehold to the applicant, which
require that the user is restricted to a school site.

12. That the applicants have never challenged the resolutions of

Parliament or the Auditor General and the same have remained valid
resolutions to be implemented by the Council.

13. That the respondent through the Council of KCCA has powers to veto
decisions of the Division Urban Councils where such decisions are
inconsistent or contravene the law.

The applicant was represented by Kassim Muwonge & David Mukiibi

Ssemakula while the respondent was represented by Jackline Atugonza

The parties filed their respective submissions which I have considered in this
ruling.

Whether the court should issue a temporary injunction in this matter?

The applicant’s counsel submitted that the applicant is challenging the
resolutions made by the council for illegality, irrationality and procedural
impropriety. The resolutions of council took immediate effect and KCCA has
taken over the management of the property comprised in FRV 1290 Folio 4
Plot 110 William Street.

The applicant further contended that there is a prima facie case and or that
the main cause raises serious questions of law or triable issues. It was
counsel’s submission that there is an imminent threat by the Lord Mayor to
halt any rental payments to the applicant pursuant to the impugned
resolutions.

The respondent counsel submitted that there is no prima facie case since the
applicant’s case is premised on challenging the powers of the Council to veto
a decision of the division urban council. This power is premised in section
34 of KCCA Act especially where the decision is inconsistent with or
contravenes the Constitution or any other law.

It was further submitted that the temporary injunction sought would have
the effect of suspending the respondent’s powers to veto a decision of the its
Urban Council and this would in effect tantamount to suspending the law.
The respondent contended that there is no prima facie case and that there is
no imminent threat to the applicant and the recommendations of council are
not new matters and the respondent has not taken any steps to implement
the same resolutions.

Analysis
The jurisdictional and procedural principles governing interim injunctions
or temporary injunctions must be sufficiently balanced and flexible to
address the objectives of these remedies. The court’s discretionary powers
should not be curtailed with hurried exercise of power with a view of
changing the status quo to defeat the grant of appropriate remedies.

If the court believes that there is a serious issue to be tried, it will

prospectively consider the parties’ respective positions according to whether
an injunction is granted or refused. In doing so, the court will gauge the
hardship which would be caused to the applicant if he is refused relief and
balance it against the hardship which would be caused to the respondent if
the injunction is granted. If neither party would be adequately compensated,
the court would ascertain where the balance of justice lies.

The jurisdiction to grant a temporary injunction is an exercise of discretion

and the discretionary powers are to be exercised judiciously as was noted in
the case of Yahaya Kariisa vs Attorney General & Another, S.C.C.A. No.7 of
1994 [1997] HCB 29.

It should be noted that where there is a legal right either at law or in equity,
the court has power to grant an injunction in protection of that right. Further
to note, a party is entitled to apply for an injunction as soon as her legal right
is invaded. See Titus Tayebwa v Fred Bogere and Eric Mukasa Civil Appeal
No.3 of 2009.

In applications for a temporary injunction, the Applicant is required to show

that there must be a prima facie case with a probability of success of the
pending suit. The Court must be satisfied that the claim is not frivolous or
vexatious and that there is a serious question to be tried. (See American
Cyanamid Co v Ethicon Ltd [1975] ALL ER 504).

A prima facie case with a probability of success is no more than that the Court
must be satisfied that the claim is not frivolous or vexatious, in other words,
that there is a serious question to be tried as was noted in Victor
Construction Works Ltd v Uganda National Roads Authority HCMA NO.
601of 2010.

The applicant is challenging the resolutions made by the respondent Council

to take over the management of the Bat Valley Primary School pursuant to
the recommendations of Parliament Select Committee and also the Auditor
General’s report. This court has a duty to investigate and interrogate the
allegations made by the applicant and this court cannot assume facts which
have not happened and this could be speculative without cogent evidence
to support the grant of a temporary injunction.

There are serious issues to be interrogated in the main application (Cause)

and this court is satisfied that the case for the applicant is not frivolous or
vexatious under the circumstances. But the court should not grant the
temporary injunction gratuitously without clear proof of claims of
enforcement.

The whole purpose of granting an injunction is to preserve the status quo as

was noted in the case of Humphrey Nzeyi vs Bank of Uganda and Attorney
General Constitutional Application No.01 of 2013. Honourable Justice
Remmy Kasule noted that an order to maintain the status quo is intended to
prevent any of the parties involved in a dispute from taking any action until
the matter is resolved by court.

This court has wide discretion at this stage to consider any factor which
would have a bearing on the issue whether the injunction ought to be
granted. It is for the court to determine the weight to be accorded to a
particular factor weighed in balance and where they appear to be balanced
the court ought to consider and strive to preserve the status quo.

Other factors that may be taken into account in determining the balance of
convenience include the importance in upholding the law of the land or rule
of law and the duty placed on the authority to enforce the law in public
interest. The actions of the respondent to pass resolutions in respect of the
said property were based on reports of Constitutional organs like
Parliamentary Committee and Auditor General’s Office which have found
fault with the process of taking over of Bat Valley School which is a public
good for education of students from poor families.

This court in the exercise of its discretion ought to avoid any absurdity in
application of the law since the damage the applicant will suffer if court rules
in his favour will be greater and irreparable. It is a well settled preposition
of the law that an interim injunction order can be granted only if the
applicant will suffer irreparable injury or loss keeping in view the strength
of the parties’ case. Whatever, the applicant claims to be the likely injury they
will suffer would be atoned for by way of damages.

The courts when exercising power of judicial review have a duty of ensuring
that the public body or officer has acted in accordance with the law or within
the ‘four corners’ of the legislation or constitution and thus enforcing the
rule of law. The court would be greatly inclined to granting interim remedies
as it establishes the propriety of the decision in order not to render the
application nugatory. The decision under challenge derives its authority
from the law under Section 34 of the Kampala Capital City Act which allows
the council to veto any decisions of Urban Division Council which is illegal.
The court’s power to grant a temporary injunction is extraordinary in nature
and it can be exercised cautiously and with circumspection. A party is not
entitled to this relief as a matter of right or course. Grant of temporary
injunction being equitable remedy, it is in discretion of the court and such
discretion must be exercised in favour of the applicant only if the court is
satisfied that, unless the respondent is restrained by an order of injunction,
irreparable loss or damage will be caused to the applicant. The court grants
such relief ex debitio justitiae, i.e to meet the ends of justice. The court must
keep in mind the principles of justice and fair play and should exercise its
discretion only if the ends of justice require it. See Section 64 of the Civil
Procedure Act.

In the result for the reasons stated herein above this application fails. The
costs shall be in the cause.

I so Order

Ssekaana Musa
Judge
17th May 2024