Wakilii

Abaho and Another v Kampala Capital Authority and 2 Others (Misc Cause 125 of 2023)

High Court · [2024] UGHCCD 101 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review by Notice of Motion seeking declarations and orders of certiorari, mandamus, and prohibition against KCCA and two individual vendors
Decision
Application dismissed as incompetent and premature; applicants to await expiration of three-year transitional period under Markets Act 2023

Observed later treatment

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Holding

The High Court dismissed a judicial review application challenging KCCA's implementation of the Markets Act 2023, holding that the application was premature because section 37(b) of the Act provides a three-year transitional period within which existing market arrangements must comply with the new law. The court found that the applicants could not challenge the legality of existing arrangements under the new Act during this statutory grace period. The impugned actions and omissions were not available for scrutiny under judicial review because Parliament had expressly permitted continued operation under existing arrangements during the transition.

Outcome

Application dismissed as incompetent and premature; applicants to await expiration of three-year transitional period under Markets Act 2023

Facts

The applicants are existing vendors in Bugolobi Market occupying lock-up shops 9C and 13A. After enactment of the Markets Act 2023, they stopped paying rent to the 2nd and 3rd respondents (individual allocatees who had sublet the shops to them) and sought orders compelling KCCA to implement the new law immediately. The applicants claimed the Act abolished private landlord-tenant arrangements in public markets and that KCCA acted unlawfully by permitting the 2nd and 3rd respondents to continue collecting rent and by failing to constitute an Allocation Committee. The 2nd and 3rd respondents had held the shops for over 24 and 25 years respectively under arrangements lawful under the old Markets Act Cap 94. KCCA had acquired a lease over Bugolobi Market in 2020 but full takeover was pending compensation of those who invested in redevelopment. The application was filed approximately six weeks after enactment of the Markets Act 2023.

Issues

  1. Whether the application is amenable for judicial review?
  2. Whether the application raises any grounds for judicial review?
  3. Whether the Applicants are entitled to the reliefs claimed?

Orders

  • Application dismissed.
  • Costs awarded to the Respondents.

Rules and key headnotes

Amenability — Public Body — Public Law Matter
For a matter to be amenable for judicial review, the court must be satisfied first that the body under challenge is a public body whose activities can be controlled by judicial review, and secondly that the subject matter of the challenge involves claims based on public law principles and not the enforcement of private law rights.
Decisions Subject to Review — Actions and Omissions
Judicial review extends not only to decisions of public bodies but also to their actions and omissions. Not making a decision over a particular matter is itself a decision not to act, and such omissions may be challenged by way of judicial review provided they relate to the exercise of public functions.
Transitional Provisions — Grace Period — Prematurity
Where an Act of Parliament provides a transitional period within which existing arrangements must comply with new statutory requirements, an application seeking to enforce the new Act during that transitional period is premature. The lawfulness of arrangements during the transitional period must be measured against the old law, not the new Act.
Legislative Intent — Statutory Grace Period — Judicial Restraint
A statutory grace period expressly enacted by Parliament cannot be varied or ignored by the courts under any circumstances. The mandate of the courts is to interpret the law and not to replace legislative provisions.
Legitimate Expectation — Timing — Statutory Override
Presidential directives and ministerial guidelines that predate the enactment of an Act of Parliament cannot create a legitimate expectation that overrides the express provisions of that Act, particularly where the Act contains transitional provisions regulating the subject matter of the directives.

Legislation cited (12)

Cases cited (4)

  • Birimbo Aaron v Uganda Human Rights Commission (HC Misc Cause No. 76 of 2022)
  • Andrew Kilama Lajul v Uganda Coffee Development Authority (HCMC No. 270 of 2019)
  • Leads Insurance Co. Ltd v Insurance Regulatory Authority (CACA No. 237 of 2017)
  • Ssekaana Musa, Public Law in East Africa, P.37 (2009) Law Africa Publishing, Nairobi

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Abaho and Another v Kampala Capital Authority and 2 Others (Misc Cause 125 of 2023) [2024] UGHCCD 101 (31 May 2024)
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.