Wakilii

Kihunde v Fortportal City Council and 12 Others (Miscellaneous Application 17 of 2023)

High Court · [2024] UGHC 1129 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Judicial review application challenging public recruitment process and appointments
Decision
Judicial review application dismissed; no relief granted to applicant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the applicant had locus standi as the irregular appointments of the 6th–13th respondents allegedly affected her salary payment. However, the court found that the respondents were reinstated following guidance from the Permanent Secretary Ministry of Public Service after they had been irregularly retired without budgetary provision for retirement benefits. The High Court orders in two related cases also mandated reinstatement. The non-payment of the applicant's salary arose from separate budgetary constraints, not from the respondents' reinstatement. The applicant failed to prove illegality, irrationality, or procedural impropriety in the decision-making process. Application dismissed with costs.

Outcome

Judicial review application dismissed; no relief granted to applicant

Facts

The applicant was recruited by Fort Portal City Council as Internal Auditor in June 2023 but did not receive salary from July 2023 onwards. She challenged the appointments of the 6th–13th respondents, alleging they were illegally recruited or reinstated without proper advertisement or academic qualifications. The 6th–11th respondents had been retired due to abolition of office and lack of budgetary provision for retirement benefits. Following guidance from the Permanent Secretary Ministry of Public Service, they were reinstated. Two of them (6th and 7th respondents) had successfully challenged their retirements in court. The 12th and 13th respondents were appointed on transfer or promotion. The non-payment of the applicant's salary arose from recruitment conducted without clearance from the Ministry of Public Service and without confirmed wage provision, not from the respondents' reinstatement.

Issues

  1. Whether the applicant has locus standi to bring a judicial review application.
  2. Whether the application satisfies the considerations for handling an application for judicial review under Rule 7A of the Judicature (Judicial Review) Rules.
  3. Whether the decision-making bodies or officers followed due process in reaching decisions involving the appointment of the 6th to 13th respondents and whether there was unfair and unjust treatment of the applicant.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Locus Standi — Direct or Sufficient Interest — Budgetary Impact
An applicant has locus standi to bring a judicial review application if she can demonstrate that the irregular recruitment of other employees, who are being paid salary, disadvantaged her by contributing to her not receiving her own salary, thus establishing direct or sufficient interest in the decision-making process.
Amenability — Public Law Matter — Public Body Recruitment
A challenge to the recruitment and appointment process of a local government council is amenable to judicial review where the decision involves a public body exercising powers under the Constitution and public laws, and where the recruitment process affects the interests of the wider public who are potential beneficiaries of public sector employment.
Retirement — Abolition of Office — Mandatory Clearance and Budgetary Provision
Under Section L-i of the Uganda Public Service Standing Orders 2021, retirement on abolition of office requires clearance by the Permanent Secretary Ministry of Public Service and budgetary provision for retirement benefits, severance packages, and transport to the officer's home. Retirement without such clearance and budgetary provision is irregular and may be set aside.
Reinstatement — Irregularly Retired Officers — Guidance from Permanent Secretary
Where public officers have been irregularly retired without compliance with mandatory legal requirements, including clearance from the Permanent Secretary and budgetary provision for retirement benefits, the reinstatement of such officers following guidance from the Permanent Secretary Ministry of Public Service is lawful and does not constitute illegality or procedural impropriety.
Judicial Review — Illegality, Irrationality, Procedural Impropriety — Burden of Proof
To succeed in a judicial review application, the applicant must prove on a balance of probabilities that the decision-making body or officer committed illegality, irrationality, or procedural impropriety in the decision-making process. Mere allegations unsupported by evidence are insufficient to discharge this burden.
Judicial Review — Rationality — Guidance from Supervising Authority
A decision to reinstate officers who had been irregularly retired, made following technical guidance from the Permanent Secretary Ministry of Public Service, is rational and defensible in law where the retirement had been effected without budgetary provision for retirement benefits and without mandatory clearance, and therefore the officers could not be legally retired.

Legislation cited (13)

Cases cited (20)

  • Muhumuza Ben v Attorney General (Miscellaneous Application No. 212 of 2020)
  • Community Justice and Anti-Corruption Forum v Law Council and Sebalu and Lule Advocates (Miscellaneous Cause No. 301 of 2016)
  • Kiiza Joseph v Kasese District Local Government and Others (Miscellaneous Application No. 8 of 2022)
  • Arua Kubala Park Operators and Market Vendors' Cooperative Society Limited v Arua Municipal Council (Miscellaneous Cause No. 3 of 2016)
  • Dr. Nalwoga and 4 Others v Makerere University (Miscellaneous Cause No. 1 of 2021)
  • Alex Nyika and Nelson Yigga v Commissioner Land Registration (Miscellaneous Cause No. 259 of 2022)
  • Rusoke Johniey Bosco v Fortportal City Council (Miscellaneous Cause No. 11 of 2022)
  • Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] 2 All ER 680
  • Dr. Lam-Larogo Lagoro James v Muni University (Miscellaneous Cause No. 7 of 2016)
  • Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
  • R v Monopolies and Mergers Commission ex parte Argyll Group PLC [1986] 1 WLR 763
  • R. v. Dairy Produce Tribunal, ex p. Gzswell
  • Republic v Kenya Ports Authority Board Of Directors & 2 others; Public Service Commission (Exparte); Genesis For Human Rights Commission (Applicant) (Judicial Review Application 001 of 2022) [2022] KEELRC 1362 (KLR) (8 July 2022)
  • O'Reilly v Mackman [1983] 2 AC 237
  • Philadelphia Trade and Industry Ltd v Kampala City Authority (Civil Revision No. 15 of 2012)
  • Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300
  • Thugitho Festo v Nebbi Municipal Council (Miscellaneous Application No. 15 of 2017)
  • Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435
  • Rusoke Johniey Bosco v Fortportal City Council and Kagaba R. Ndora (Miscellaneous Cause No. 11 of 2022)
  • Balewa Jimmy v Fortportal City Council and Kagaba R. Ndora (Miscellaneous Application No. 1 of 2023)

Full judgment

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Kihunde v Fortportal City Council and 12 Others (Miscellaneous Application 17 of 2023) [2024] UGHC 1129 (11 December 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.