Akampumuza v Attorney General & 4 Ors (Constitutional Application No. 57 of 2010)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Sitting as a single Justice at a scheduling conference, the court held that two Justices cannot constitute a coram to hear a constitutional petition, so the petition could not proceed. A scheduling conference is not a hearing; accordingly the objections of bias raised against the two available Justices were misconceived, premature and properly reserved for the full coram at the hearing of the petition. As the petitioner had only just been served with the respondents' answers, he was allowed ten days to file replies and the respondents seven days to rejoin. Noting the petition had lain dormant for almost four years while the petitioner enjoyed an open-ended interim injunction, the court directed that the injunction lapse upon completion of the scheduling conference.

Outcome

Recusal application found misconceived and premature; petitioner granted 10 days to file replies and respondents 7 days to rejoin; scheduling conference to be set before a single Justice; interim injunction directed to lapse upon completion of that conference.

Facts

A constitutional petition filed by the applicant had been pending in the Constitutional Court for almost four years and was fixed for hearing on the court's own motion. On the listed date only two of the five Justices on the coram were available, so the petition could not be heard. The two Justices convened to inform the parties of the lack of coram, hold a scheduling conference and adjourn the matter. Counsel for the petitioner had been served with the respondents' answers but said the service had not come to the petitioner's personal attention, and sought time to file replies. A related earlier petition by the same petitioner raising the same issues was noted, and consolidation was proposed but resisted. Counsel for the petitioner then applied for the two available Justices to disqualify themselves for bias: against one Justice on the basis of his prior role as Director of Public Prosecutions, and against the presiding Justice on the basis of alleged hostility expressed in court and in chambers. The petitioner had previously obtained an open-ended interim injunction and had taken no steps to prosecute the petition.

Issues

1. Whether two Justices can constitute a coram to hear a constitutional petition.
2. Whether a scheduling conference is a hearing at which an objection of bias against the bench must be raised.
3. Whether the petitioner should be granted further time to file replies to the respondents' answers before the scheduling conference proceeds.
4. What order should be made in respect of the long-standing open-ended interim injunction obtained by the petitioner.

Orders

• The petitioner is allowed 10 days from today within which to file and serve all necessary replies.
• The respondents are allowed 7 days from today within which to file and serve their respective rejoinders, if any.
• The above process to be completed by 10th July 2014, after which the Registrar shall set the petition down for a scheduling conference before a single Justice.
• The objections of bias raised against the two Justices are misconceived and premature and may be raised before the full coram at the hearing of the petition.
• The interim order of injunction shall lapse on the date the scheduling conference is completed, the presiding Justice to make such further orders on the interim order as he deems appropriate.

Rules and key headnotes

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