Wakilii

In the Matter of an Application for Judicial Review seeking Prerogative Orders of Certiorari Mandamus and Damages by Watoto Church Ministries and Kampala Play House Limited (Misc Cause 207 of 2022)

High Court · [2023] UGHCCD 205 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review seeking prerogative orders of certiorari, mandamus, and damages, together with an application for extension of time
Decision
Application granted; decision to reject development plans set aside; matter remitted to KCCA and NPPB for reconsideration within 3 months.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that KCCA and NPPB acted illegally and irrationally in rejecting Watoto Church Ministries' mixed-use development plans on the ground that the property was a national heritage site, absent any statutory instrument or KCCA bylaw to that effect. The court ruled that while KCCA has physical planning powers under the Physical Planning Act and Kampala Capital City Act, it unreasonably fettered its own authority by relying on opinions of the Ministry of Tourism, which lacked legal effect. The court granted certiorari quashing the rejection and mandamus compelling reconsideration of the application, and directed KCCA to enact a bylaw listing heritage sites within three years.

Outcome

Application granted; decision to reject development plans set aside; matter remitted to KCCA and NPPB for reconsideration within 3 months.

Facts

Watoto Church Ministries acquired property on Kampala Road and Buganda Road in 1984 and has operated a church there. In 2010, the church sought to develop the property into a mixed-use complex. In 2019, their architects (Kampala Playhouse Limited) submitted development plans to KCCA for approval. KCCA rejected the plans in 2019 and 2021, stating the building was a national heritage site with cultural significance based on advice from the National Physical Planning Board and the Ministry of Tourism, Wildlife, and Antiquities. The applicants engaged the NPPB and appealed, but the rejection stood. They then sought guidance from the Attorney General and the KCCA Executive Director, receiving no response. The applicants claimed that their property had never been formally listed as a heritage site by statutory instrument as required by law, and that the rejection resulted in over UGX 4.4 billion in losses over the years.

Issues

  1. Whether the court should grant an extension of time to file the application for judicial review.
  2. Whether the applicants exhausted internal remedies before approaching the court.
  3. Whether the decision by KCCA and NPPB to reject the applicants' mixed-use development plan on the ground that the property is a national heritage site was amenable to judicial review.
  4. Whether the rejection of the mixed-use development plan by KCCA and NPPB was procedurally improper, irrational, and illegal in the absence of a statutory instrument listing the property as a national heritage site.

Orders

  • The decision to reject the mixed-use plans of Watoto Church Ministries and Kampala Playhouse Limited by KCCA and NPPB is reviewed and set aside on account that the decision was procedurally illegal and improper.
  • A writ of mandamus is issued against the respondents to reconsider the Watoto Church mixed-use development plans application within 3 months from the date of the ruling.
  • In complying with the order for reconsideration, the respondents are at liberty to consider the existing KCCA physical development planning regulations and guidelines.
  • In future, should KCCA wish to declare any property within its geographical limits a national heritage site, a bylaw should first be enacted to give it effect.
  • The role of the NPPB in the planning and controlling of land use in KCCA should be minimized given the provision of the MPPA which is self-executing.
  • KCCA should, within a period of 3 years, enact a bylaw listing all the properties within the capital city that should be protected as national heritage sites.
  • Where necessary, the properties to be listed should be compulsorily acquired and the owners compensated first as required under the law.
  • Costs of the application are awarded to the applicants.

Rules and key headnotes

Extension of Time — Exhaustion of Remedies — Reasonable Cause
Where an applicant's delay in filing for judicial review arises from diligent pursuit of internal remedies as required by the Judicature (Judicial Review) Rules, such delay constitutes sufficient cause for granting an extension of time.
Statutory Interpretation — Relationship Between Physical Planning Act and Kampala Capital City Act
The Metropolitan Physical Planning Authority under the Kampala Capital City Act is analogous to an urban physical planning committee under the Physical Planning Act. The appeal mechanisms in the Physical Planning Act apply to decisions of the MPPA, and the term 'urban' in the Physical Planning Act must be interpreted liberally to include the Kampala Capital City Authority.
Judicial Review — Fettering of Discretion by Public Authority
A public body exercising statutory powers unlawfully fetters its discretion when it relies on opinions of another government body that lacks statutory authority over the decision, especially where the public body has clear statutory powers to decide the matter itself. Such reliance renders the decision procedurally illegal and improper.
Heritage Sites — Listing Requirements — Absence of Statutory Instrument
In the absence of a statutory instrument or municipal bylaw formally listing a property as a national heritage site, a planning authority acts unreasonably and illegally when it rejects a development application on the ground that the property is a heritage site, notwithstanding policy considerations or international framework obligations.
Municipal Powers — Relationship Between Executive and Legislative Powers in Urban Governance
Where a municipal authority seeks to implement policy-driven decisions affecting land use and property rights, such decisions must be supported by validly enacted bylaws. Executive power to execute functions is meaningless without the legislative framework necessary to give legal effect to those functions.
Implied Repeal — Harmonious Construction of Old and New Legislation
Where new statutes enacted under a current constitutional dispensation create a comprehensive regulatory framework for physical planning, courts may infer that older legislation enacted under a prior constitution has been impliedly amended or superseded to the extent of any inconsistency, particularly where the new framework provides its own mechanisms for decision-making.
Grounds for Review — Illegality, Irrationality, and Procedural Impropriety
A decision may be reviewed and set aside where the decision-maker acts outside its statutory powers, adopts a formalist rather than functionalist approach, and unreasonably relies on non-binding opinions from bodies without statutory authority, thereby rendering the decision procedurally illegal and manifestly irrational.

Legislation cited (30)

Cases cited (22)

  • Magoma Denis & 43 others v Kampala Capital City Authority (Miscellaneous Cause No. 191 of 2022)
  • Dr Sheikj Ahmed Kisule v Greenland Bank (in liquidation) (Miscellaneous Application No. 2 of 2012)
  • Kintu Samuel and Anor v Registrar of Companies and Others (Miscellaneous Cause No. 58 of 2021)
  • Dr. Pariyo Bonane v Dr. Nathan Onyanchi & Others (Miscellaneous Application No. 48 of 2020)
  • Uganda Revenue Authority v Consolidated Properties Ltd (Court of Appeal No. 13 of 2000)
  • Prime Constructors Ltd v Public Procurement and Disposal of Public Assets Authority and others (Miscellaneous Application No. 91 of 2014)
  • Green Pastures Ltd v Cooperative Bank Ltd (in liquidation) (Miscellaneous Application No. 172 of 2015)
  • CS No. 540/1990
  • Bazirio Kivumbi v Iburahim Ismail (Civil Suit No. 48 of 1957)
  • RB Policies at Lloyd's v Butler [1949]2 ALL ER 226 pp 229-230
  • Dawson Kadope v Uganda Revenue Authority (Miscellaneous Cause No. 0040 of 2019)
  • Microcare Insurance Limited v Uganda Insurance Commission (Miscellaneous Cause No. 218 of 2009)
  • Classy Photo Mart Limited v Commissioner Customs Uganda Revenue Authority (Miscellaneous Cause No. 30 of 2009)
  • Credit Suisse v Allerdale Borough Council [1997] QB 306 at 355D
  • Shah v Attorney General (1970) EA 543
  • In Re Afro-Motors Ltd & Anor (Miscellaneous Cause No. 693 of 2006)
  • Jayantilal S Shah v The Attorney General (Miscellaneous Cause No. 31 of 1969)
  • Redmond v Lexington County School District No. Four: 314 S.C. 431) 4371445 S.E. 2d 441) 445, (1994)
  • City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and others CCT 89/09 [2010] ZACC 11 para 32
  • Minister for Aboriginal Affairs v Peko-Wallsend Ltd: (1986) 162 CLR 24, 40-41, which cites Wednesbury Corporation [1948] 1 KB, 228
  • Edwards (Inspector of Taxes) v Bairstow [1955]3 ALL ER [1956] AC 14
  • Council of Civil Service Union v Minister for Civil Service [1984]3 ALL ER 935 at p 950

Full judgment

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In the Matter of an Application for Judicial Review seeking Prerogative Orders of Certiorari Mandamus and Damages by Watoto Church Ministries and Kampala Play House Limited (Misc Cause 207 of 2022) 2023 UGHCCD 205 (7 July 2023)
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