Kyakabale v Attorney General (Civil Miscellaneous Application No. 40 of 2017)

Court of Appeal · [2021] UGCA 103 · 2021 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application for an interim order of stay of proceedings before a single judge of the Court of Appeal, arising from a constitutional petition.

Decision

Application found properly before a single judge but rendered superfluous by prior High Court orders; no order as to costs.

The full judgment

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Holding

On a purposive interpretation of Articles 137(1) and (2) of the Constitution read with section 12 of the Judicature Act and Rule 53 of the Court of Appeal Rules, the court held that the Court of Appeal sits as the Constitutional Court (five judges) only when determining questions of constitutional interpretation. Interlocutory applications, including for interim stay of proceedings arising from a constitutional petition, are heard by a single judge of the Court of Appeal under section 12(1) of the Judicature Act and Rule 43(1), with substantive stay applications heard by three judges. The application was thus properly before a single judge, but had been rendered superfluous by the High Court's orders in Miscellaneous Cause No. 21 of 2018.

Facts

The applicant, Caroline Kyakabale, was facing prosecution in Criminal Case No. UPDF/GCM/001/2017 before the General Court Martial. She lodged this application for an interim order of stay of those proceedings pending the disposal of a substantive stay application (Miscellaneous Application No. 39 of 2017), which itself arose from Constitutional Petition No. 41 of 2017. Before the application could be heard, the applicant lodged Miscellaneous Cause No. 21 of 2018 in the High Court, which, by a ruling dated 14 August 2020 (Mugambe, J), secured the halting of her trial before the General Court Martial. At the hearing of the present application, neither the applicant nor her advocate appeared despite proof of due service. The respondent argued the application had been overtaken by events and that it ought to have been placed before a coram of three judges.

Issues

Whether a single judge of the Court of Appeal has jurisdiction to hear an application for interim orders of stay of proceedings arising from a constitutional petition, or whether such an application must be placed before a coram of three or five judges.
Whether the application for an interim order of stay had been overtaken by events given the halting of the applicant's trial in Miscellaneous Cause No. 21 of 2018.

Orders

The application is properly before a single judge of the Court of Appeal.
The application has been rendered superfluous by the determination of Miscellaneous Cause No. 21 of 2018.
No order as to costs.

Key headnotes

Constitutional Court — Jurisdiction — Article 137 — Restricted to Constitutional Interpretation

The jurisdiction of the Court of Appeal sitting as the Constitutional Court under Article 137(1) of the Constitution is restricted solely to questions of constitutional interpretation, and the five-judge coram prescribed by Article 137(2) applies only to that interpretative function.

Constitutional Interpretation — Literal versus Purposive Approach

Where the words of a constitutional or statutory provision are clear and unambiguous they must be given their ordinary and natural meaning, but where the language is imprecise or ambiguous a liberal or purposive interpretation should be applied to deduce the intention of the framers.

Court of Appeal — Single Judge — Jurisdiction over Interlocutory Applications

A single judge of the Court of Appeal may, under section 12(1) of the Judicature Act and Rule 43(1) of the Court of Appeal Rules, hear an application for interim orders such as an interim stay of proceedings, sitting not as the Constitutional Court but as a single judge of the Court of Appeal.

Court of Appeal — Coram — Substantive Stay Applications from Constitutional Petitions

Substantive applications for stay of execution, stay of proceedings or injunctive relief pending determination of a constitutional petition are to be heard by three judges of the Court of Appeal, and not by five judges sitting as the Constitutional Court.

Legislation cited (18)

Constitution of Uganda 1995 art.134(1)
Constitution of Uganda 1995 art.134(2)
Constitution of Uganda 1995 art.135(1)
Constitution of Uganda 1995 art.137(1)
Constitution of Uganda 1995 art.137(2)
Constitution of Uganda 1995 art.129
Constitution of Uganda 1995 art.131(1)
Judicature Act Cap. 13 s.10
Judicature Act Cap. 13 s.12
Judicature Act Cap. 13 s.8(2)
Judicature (Court of Appeal Rules) SI 13-10 r.2(2)
Judicature (Court of Appeal Rules) SI 13-10 r.6(2)
Judicature (Court of Appeal Rules) SI 13-10 r.42
Judicature (Court of Appeal Rules) SI 13-10 r.43(1)
Judicature (Court of Appeal Rules) SI 13-10 r.43(2)
Judicature (Court of Appeal Rules) SI 13-10 r.43(3)(a)
Judicature (Court of Appeal Rules) SI 13-10 r.53
Constitutional Court Rules of Procedure r.23(1)

Cases cited (7)

Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
Alenyo v Chief Registrar, Courts of Judicature and 2 Others (Constitutional Petition No. 32 of 2014)
Returning Officer Kampala and Another v Zziwa (Civil Appeal No. 39 of 1997)
Murisho Shafi and 5 Others v Attorney General and Another (Constitutional Application No. 2 of 2017)
Uganda Law Society v Attorney General (Constitutional Petition No. 52 of 2017)
Owor v Attorney General and Another (Constitutional Application No. 38 of 2010)

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