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Muwonge v Uganda (Criminal Appeal No. 338 2003)

Court of Appeal · [2010] UGCA 2 · 2010 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court from the Constitutional Court concerning the award of costs in a constitutional petition
Decision
Appeal allowed with costs to the appellant (per the judgment of Kisaakye, JSC)

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Holding

On appeal concerning costs in a constitutional petition, the Supreme Court (per Kisaakye, JSC) held that the Constitutional Court had in fact awarded costs to Kivumbi, as three of five Justices did so, though awarding costs not prayed for was an error in law. Kisaakye, JSC held that a petition challenging the constitutionality of a statutory provision is a public interest matter even when filed by an individual for personal redress, because the nature and effect of the decision benefit the wider public. She held that Section 27 of the Civil Procedure Act should not apply to constitutional matters, and that a successful public interest litigant deserves reimbursement of direct costs where prayed for. She would allow the appeal with costs.

Facts

The appellant, Muwanga Kivumbi, filed a constitutional petition challenging the constitutionality of Section 32 of the Police Act, ultimately confining the challenge to Section 32(2), which empowered the Inspector General of Police to prohibit the convening of an assembly or procession. The Constitutional Court found Section 32(2) inconsistent with Articles 20(1) & (2) and 29(1)(d) of the Constitution and declared it null and void. Kivumbi extracted a decree and sent it to the Attorney General for signature, but the Attorney General refused on the ground that no costs had been awarded. Kivumbi sought clarification, and the Constitutional Court informed him by letter that only two Justices had awarded costs, so no costs had been awarded. Dissatisfied, Kivumbi appealed to the Supreme Court contending that the Constitutional Court erred and applied wrong principles in refusing costs to him as the successful party, and he sought an order awarding costs for the petition and the appeal.

Issues

  1. Whether the Constitutional Court erred in refusing to award costs to the appellant as the successful party.
  2. Whether the petition challenging the constitutionality of Section 32(2) of the Police Act was a public interest matter.
  3. Whether costs should be awarded in public interest constitutional matters.

Orders

  • Appeal allowed with costs in the Supreme Court and in the Constitutional Court (per Kisaakye, JSC).

Key headnotes

Constitutional Law — Public Interest Litigation — Petition Challenging Constitutionality of a Statute
A petition challenging the constitutionality of a statutory provision is a public interest matter even where filed by an individual in his own capacity and for his own benefit, because it is the nature of the suit and the effect of the decision once adjudicated that determine whether a matter is of public interest.
Constitutional Law — Standing — Person Alleging under Article 137(3)
A public interest matter under Article 137 may be filed by an individual, a group of persons, or an organisation; a 'person alleging' under Article 137(3) includes both those directly affected and other persons or legal persons alleging unconstitutionality on behalf of the public.
Civil Procedure — Costs — Award of Costs Not Prayed For
The judicial discretion to award costs, whether under Section 27 of the Civil Procedure Act or under the general powers of the court, does not extend to awarding costs that have not been prayed for; awarding such costs is an error in law.
Civil Procedure — Costs — Public Interest Constitutional Litigation
Section 27 of the Civil Procedure Act should not be applied to constitutional matters; a litigant who successfully prosecutes a public interest petition deserves reimbursement of direct costs where these were prayed for, and should not bear the economic burden of maintaining the constitutional order for others.

Legislation cited (10)

  • Police Act s.32(2)
  • Constitution of Uganda Article 20(1) & (2)
  • Constitution of Uganda Article 21(1) & (2)
  • Constitution of Uganda Article 29(1)(a)(b)(d)(e)
  • Constitution of Uganda Article 38(2)
  • Constitution of Uganda Article 42
  • Constitution of Uganda Article 43(3)(a) & (c)
  • Constitution of Uganda Article 137
  • Constitution of Uganda Article 137(3)
  • Civil Procedure Act s.27

Cases cited (7)

  • Paul K. Ssemogerere and 2 Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Advocates Coalition for Development & Environment (ACODE) v Attorney General (High Court Miscellaneous Cause No. 100 of 2004)
  • Greenwatch v Attorney General and Another (High Court Miscellaneous Cause No. 140 of 2002)
  • Centre for Health, Human Rights and Development (CEHURD) and 3 Others v Attorney General (Constitutional Appeal No. 1 of 2013)
  • Kwizera Eddie v Attorney General (Constitutional Appeal No. 6 of 2011)
  • R v. Bedfordshire, 24 L.J. Q.B. 84
  • D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.