Wakilii

East African Development Bank v George Fenekansi Sembeguya (Civil Appeal No. 202 of 2018)

Court of Appeal · [2026] UGCA 187 · 2026 Appeal Dismissed (Matter Remitted) ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling that the court had jurisdiction to entertain the suit against an international organisation claiming immunity
Decision
Appeal dismissed on the whole, the appellant succeeding only on Grounds 2 and 3; matter remitted to the High Court for proper determination on the merits.

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Holding

The East African Development Bank is an international organisation whose immunity, on the plain wording of its Charter and the domesticating Act, is institutional and qualified rather than absolute, because the Bank may waive it in writing (though not as to execution). The trial judge rightly found no absolute immunity. Immunity is a defence, not a bar to jurisdiction, so a court must first assume jurisdiction to decide whether it was waived. The grant of immunity does not infringe the Constitution. The judge erred in confining immunity to members, since it also covers third parties. Without the mortgage deeds, contracts and the Bank's defence, waiver could not be determined, so the preliminary objection was premature.

Facts

The late Edward Mugalu granted powers of attorney to M/s Steelex Products (U) Limited to obtain a loan of SDR 100,000 from the East African Development Bank, secured by a mortgage over land at Block 208, Plots 519, 520 and 521, Kyadondo, Kawempe. The mortgage was executed on 4 August 1995 and registered on 16 May 1996. Steelex defaulted, and the Bank, exercising its statutory power of sale, issued notice to sell the mortgaged properties to Interact Uganda Limited. The respondent, as administrator of Edward Mugalu's estate, sued in the High Court seeking to exercise the right of redemption over the property. The Bank applied for a declaration that the High Court lacked jurisdiction, asserting absolute immunity as an international organisation under its Charter and the East African Development Bank (Amendment) Act. The High Court held it had jurisdiction to hear the matter on its merits, and the Bank appealed.

Issues

  1. Whether the East African Development Bank, as an international organisation, enjoys absolute immunity barring all suits, or only qualified or functional immunity limited to acts necessary for its official functions.
  2. Whether the immunity conferred by Article 44 of the Bank's Charter, as enacted by the East African Development Bank (Amendment) Act, applies only to members of the Bank or extends to non-members and third parties.
  3. Whether the grant of immunity to the Bank is unconstitutional as ousting the jurisdiction of the High Court and infringing the rights to equality, a fair hearing and access to justice.
  4. Whether immunity ousts the court's jurisdiction or operates only as a defence, and whether the Bank's entry into a contract waived its immunity.
  5. Whether the High Court could entertain the suit to its logical conclusion.

Orders

  • On the whole, the appeal fails.
  • The appellant succeeded only on Grounds 2 and 3.
  • The matter is remitted to the trial Court for proper determination.
  • The Respondent is awarded one-half of the costs of the appeal.

Key headnotes

Immunity of international organisations — Institutional and functional immunity distinguished from State immunity
An international organisation is neither a sovereign nor a State; the immunity it enjoys is institutional, derived from its constitutive treaty or charter and the domestic statute incorporating it, and is grounded in functional necessity rather than sovereignty, extending only so far as the relevant legal instrument provides.
Immunity clauses — Waivable immunity is qualified, not absolute
Where the instrument conferring immunity expressly permits the holder to waive that immunity in writing, the immunity is qualified rather than absolute; absolute immunity precludes waiver under any circumstances, so an immunity that may be relinquished by written waiver, even if it excludes execution, is by its nature qualified.
Immunity and jurisdiction — Immunity is a defence, not an ouster of jurisdiction
Lack of immunity and lack of jurisdiction are distinct concepts; immunity operates as a defence that bars proceedings against a party, akin to limitation or estoppel, and does not oust the court's jurisdiction. A court must first assume jurisdiction before it can determine whether immunity applies or has been waived.
Institutional immunity — Scope extends to third parties and non-members
Institutional immunity shields the international organisation itself from being subjected to legal process in domestic courts regardless of whether the claimant is a member State, a private party or any other litigant; it is not a restriction confined to members, and to limit it to members alone would distort the statutory framework and undermine the organisation's functional independence.
Waiver of immunity — Pleading and proof — Prematurity of a preliminary objection
A party asserting qualified immunity bears the evidential burden of establishing that immunity was conferred and not waived; entering into a contract does not by itself constitute an express waiver, and where the relevant written instruments and defence are not before the court, it cannot be concluded that immunity was not waived, making a preliminary objection on immunity premature.
Immunity and constitutional rights — Equal protection and access to justice
A grant of immunity does not automatically violate the constitutional right to equal protection; it survives challenge where a legitimate public interest exists, the immunity is rationally connected to that interest and is not arbitrary, and no less-restrictive alternative would achieve the same objective.

Legislation cited (19)

  • East African Development Bank (Amendment) Act No. 2 of 2017 s.44
  • East African Development Bank (Amendment) Act No. 2 of 2017 s.45
  • East African Development Bank (Amendment) Act No. 2 of 2017 s.51
  • East African Development Bank Act Cap. 55 art.43
  • East African Development Bank Act Cap. 55 art.44
  • East African Development Bank Act Cap. 55 art.45
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.123
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.129
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.139(1)
  • Constitution of Uganda 1995 art.273
  • Ratification of Treaties Act
  • Judicature (Court of Appeal) Rules Directions SI 13-10 r.30(1)
  • Universal Declaration of Human Rights art.8

Cases cited (21)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Prof. Peter Angang' Ngong'o v Attorney General of Kenya, East African Court of Justice, Reference No. 1 of 2006
  • Barnes v Jarvis [1953] 1 WLR 649
  • Commissioner of Agricultural Income Tax v Keshab Chandra Mandal [1950] ALR 37
  • Rogers Kinobe Binega v Attorney General and Another (Constitutional Petition No. 1 of 2016)
  • Blueline Enterprises Limited v East African Development Bank (Civil Application No. 12 of 2012)
  • Sciment S.P.R.I v The African Development Bank, Brussels Court of Appeal, 2nd Division, No. Rep 2002/5929
  • East African Development Bank v George Willy Mugisha (Miscellaneous Application No. 77 of 2013)
  • Uganda Revenue Authority v Rabbo Enterprises (U) Ltd and another (Civil Appeal No. 12 of 2004)
  • Attorney General v Major David Tinyefuza (Constitutional Appeal No. 1 of 1996)
  • Attorney General v Osotroca Limited (Civil Appeal No. 32 of 2002)
  • Kabandize and 20 Others v Kampala Capital City Authority (Civil Appeal No. 28 of 2011)
  • Concorp International Limited v East and Southern African Trade and Development Bank (Civil Appeal No. 11 of 2009)
  • Waite and Kennedy v Germany (App. No. 26083/94)
  • X v OPEC (SV 1 of 2021)
  • Germany v Italy (Jurisdictional Immunities of the State, ICJ 2012)
  • Trendtex Trading Corp v. Central Bank of Nigeria (UK Court of Appeal, 1977)
  • Republic of Argentina v. Weltover, Inc. (US Supreme Court, 1992)
  • Tsavlins Salvage (International) Ltd v Grain Board of Iraq [2008] (UK)
  • Jam v International Finance Corporation (2019)
  • East African Development Bank v Thousand Palms Beach Hotel Limited
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.