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Prof. Omolo Ndiege v Kyambogo University (Civil Appeal 142 of 2013)

Court of Appeal · [2023] UGCA 354 · 2023 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from the High Court's dismissal of an application for judicial review
Decision
Appeal dismissed with no order as to costs; the High Court's refusal of judicial review stands.

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Holding

The Court of Appeal dismissed the appeal against the High Court's refusal of judicial review. It upheld the preliminary objections that the orders of certiorari and prohibition sought were moot, since the appellant's contract had expired by effluxion of time and a new Vice Chancellor installed, leaving no live controversy. Mandamus was untenable as no specific public duty existed to implement the Ad hoc Committee's report. The Court further held that the application was premature: by failing to exhaust the internal dispute resolution process under section 57 of the Universities and Other Tertiary Institutions Act (appeal to the Staff Tribunal), the appellant pre-empted his own opportunity to be heard, rendering judicial review untenable.

Facts

The appellant was appointed Vice Chancellor of Kyambogo University on 4 December 2008 under a five-year renewable contract. On 31 October 2012, before his term expired, the University Council recommended his removal from office in the public interest. An Ad hoc Committee investigating allegations of mismanagement found most allegations invalid but recommended he build a functional team within six months, failing which he be relieved of duties. Before receiving the formal Notice of Removal (communicated 9 November 2012), the appellant filed an application for judicial review on 5 November 2012, seeking certiorari to quash the Council's decision, mandamus to compel compliance with the Committee's findings, and prohibition. The High Court dismissed the application as premature. The appellant's contract expired in December 2013 with no automatic renewal, and a new Vice Chancellor was installed. The appellant did not appeal to the University Staff Tribunal under section 57 of the Universities and Other Tertiary Institutions Act before approaching the court.

Issues

  1. Whether the appeal had been overtaken by events and was therefore moot.
  2. Whether the appeal was vexatious and an abuse of court process.
  3. Whether the grounds of appeal offended Rule 86(1) of the Court of Appeal Rules.
  4. Whether the application for judicial review was prematurely filed before the University's internal disciplinary process was exhausted.

Orders

  • The first preliminary objection on mootness is allowed.
  • The third preliminary objection on the propriety of the grounds of appeal is partially allowed.
  • The second preliminary objection is found to have no merit.
  • The appeal is dismissed.
  • No order as to costs.

Key headnotes

Judicial Review — Mootness — Absence of a Live Controversy
A court will decline to decide a case where, due to subsequent events, no live controversy exists between the parties such that the court's decision would have no practical effect on their rights; orders of certiorari and prohibition seeking reinstatement become moot once the applicant's contract has expired by effluxion of time with no provision for renewal.
Judicial Review — Mandamus — Requirement of a Specific Public Duty
An order of mandamus is available only to compel the performance of a specific public duty pronounced by statute or otherwise; where no statute or terms of service impose a duty to endorse the findings of an investigative committee, mandamus directing implementation of such findings is untenable.
Judicial Review — Nature of the Process — Decision-Making Process Not the Decision
Judicial review is concerned not with the merits of a decision but with the decision-making process, requiring the court to examine whether the impugned act was fair, rational and arrived at in accordance with the rules of natural justice, exercising a supervisory rather than appellate jurisdiction.
Judicial Review — Exhaustion of Internal Remedies — University Staff Tribunal
A member of university staff must exhaust the internal dispute resolution process by appealing to the University Staff Tribunal under section 57 of the Universities and Other Tertiary Institutions Act before applying for judicial review; failure to submit to that process renders an application for judicial review premature and untenable, the applicant having pre-empted his own opportunity to be heard.
Appeals — Parties Bound by Pleadings — New Case on Appeal
An appellant is bound by his pleadings before the trial court and cannot set up on appeal a case that did not pertain in the lower court; where an application for judicial review was never premised on a particular constitutional provision, it is impermissible to argue the appeal on that basis.

Legislation cited (10)

  • Judicature Act, Cap. 13 s.36
  • Judicature (Judicial Review) (Amendment) Rules 2019 r.3
  • Judicature (Judicial Review) (Amendment) Rules 2019 r.3A
  • Universities and Other Tertiary Institutions Act s.55(1)
  • Universities and Other Tertiary Institutions Act s.57
  • Constitution of Uganda Article 42
  • Constitution of Uganda Article 50(1)
  • Constitution of Uganda Article 126(2)(e)
  • Civil Procedure Act, Cap. 71
  • Judicature (Court of Appeal Rules) Directions, SI 13-10 r.86(1)

Cases cited (14)

  • TEAN v Joseph Erva (Civil Application No. 98 of 2005)
  • Male Mabirizi v Kabaka of Buganda (Civil Application No. 28 of 2019)
  • Ndiege v Kyambogo University (Miscellaneous Cause No. 76 of 2014)
  • Male Mabirizi v Kabaka of Buganda (Civil Appeal No. 257 of 2018)
  • Attorney General & Another v James Kamoga & Another (Civil Appeal No. 8 of 2004)
  • Odo Tayebwa v Bushenyi District Local Government & Another (Miscellaneous Application No. 106 of 2005)
  • Karungu Thuku Kabia v Teachers Service Commission, Miscellaneous Application No. 310 of 2012 (High Court, Kenya)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696
  • Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Ndyenabo v Attorney General, Tanzania Constitutional Appeal No. 64 (2001) EA 485
  • Centre for Health, Human Rights & Development (CEHURD) & Others v Attorney General & Another (Constitutional Petition No. 22 of 2015)
  • Attorney General v Yunus Tinkamanyire & Others (Civil Appeal No. 208 of 2013)
  • Joseph Borowski v Attorney General of Canada (1989) 1 SCR 342
  • Legal Brains Trust Ltd v Attorney General of Uganda (EACJ Appeal No. 4 of 2012)
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.