Wakilii

John Mary Kisembo v Kampala City Council (Misc.Cause No.80 Of 2009) (Misc.Cause No.80 of 2009)

High Court · [2010] UGHC 61 · 2010 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review seeking mandamus and declaration to compel payment of pension
Decision
Application dismissed with costs to the respondent

Observed later treatment

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Holding

The court dismissed the application for judicial review. Held that although pension was not expressly mentioned in the earlier consent judgment, it was impliedly covered by that compromise which substituted all claims. Judicial review was the wrong procedure as no administrative decision was before the court for review. The requirements for mandamus were not satisfied as the applicant had no clear legal right. The matter was res judicata as the same pension claim had been determined in the earlier consent judgment. The application was time-barred under the three-month limitation period for judicial review.

Outcome

Application dismissed with costs to the respondent

Facts

The applicant was employed by Kampala City Council and was dismissed by the District Service Commission. He filed HCCS No. 216 of 2002 claiming terminal benefits and pension. The parties settled that suit by consent judgment on 19 May 2003, under which the applicant received terminal benefits according to a Supplement Bargaining Agreement on Voluntary Retirement Benefits dated 28 June 2000. The consent judgment made no express provision for pension. All benefits stated in the consent judgment were paid. Seven years later, in 2009, the applicant brought this application for judicial review seeking mandamus directing the respondent to rescind his dismissal, substitute retirement, include him on the pensioners list, and pay pension arrears. The respondent argued the matter was covered by the consent judgment, the procedure was improper, the matter was res judicata, and the claim was time-barred.

Issues

  1. Whether pension was covered by the consent judgment in HCCS No. 216 of 2002.
  2. Whether the procedure adopted by the applicant (judicial review) is proper.
  3. Whether the cause is res judicata.
  4. Whether the claim is barred by law.

Orders

  • Application for judicial review disallowed.
  • Costs awarded to the respondent.

Rules and key headnotes

Consent Judgments — Effect and Finality — Abandonment of Original Claims
A consent judgment is a compromise between parties that creates new rights or immunities in substitution for and in consideration of the abandonment of former claims. Where a plaintiff settles a suit by consent judgment accepting specified terminal benefits, claims not included in the consent judgment are abandoned, even if those claims formed part of the original suit.
Judicial Review — Proper Subject Matter — Absence of Administrative Decision
Judicial review presupposes a decision of an inferior court, tribunal, or other body or person carrying out quasi-judicial functions to be examined for possible quashing. An application for judicial review cannot succeed where there is no definite decision of any such body which the court can sustain or quash.
Mandamus — Requirements for Grant — Clear Legal Right and Demand Refused
Before mandamus can be granted, the applicant must show a clear legal right to have the thing sought done, and a demand for performance must have been made and unequivocally refused. Mandamus cannot be granted where the applicant's pleadings do not demonstrate existence of a clear legally enforceable right against the party to whom the writ is sought.
Judicial Review — Limitation Period — Three-Month Requirement
Under Rule 5(1) of the Judicature (Judicial Review) Rules 2009, an application for judicial review must be made promptly and in any event within three months from the date when the grounds arose. An application made seven years after the relevant events is barred by limitation unless disability is pleaded or extension of time is sought and granted.
Res Judicata — Same Matter Between Same Parties
Under section 7 of the Civil Procedure Act, no court shall try any suit in which a matter directly and substantially in issue was already in issue in a former suit between the same parties. Where a plaintiff seeks to bring before court a transaction already presented and adjudicated upon in earlier proceedings, the plea of res judicata applies.
Consent Judgments — Setting Aside — Grounds Required
A consent judgment may only be set aside for fraud, collusion, or for any reason which would enable court to set aside an agreement, such as consent given without sufficient material facts, in misapprehension or ignorance of material facts. Courts are reluctant to interfere with agreements freely entered into by parties. Until a consent judgment is declared illegal or unenforceable, a party cannot circumvent it by bringing a fresh application on the same subject matter.

Legislation cited (5)

Cases cited (6)

  • Odgers' Pleadings and Practice in Civil Actions (Edited by Giles F. Harwood) Universal Publishing 2000 at page 326
  • District Commissioner, Kiambu v R ex parte Njau [1960] EA 109
  • Semakula v Mugala & Others [1979] HCB 90
  • Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266
  • Hirani v Kassam (1952) EACA 133
  • Inter freight Forwarders (U) Ltd v EADB [1994-95] HCB 54

Full judgment

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John Mary Kisembo v Kampala City Council (Misc.Cause No.80 Of 2009) (Misc.Cause No.80 of 2009) [2010] UGHC 61 (2 November 2010)
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.