Wakilii

Kiirya and Another v Attorney General (Civil Suit No. 297 of 2019)

High Court · [2022] UGHCCD 1 · 2022 Preliminary Objections Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections to plaint in first instance civil suit alleging breach of constitutional duty
Decision
Matter to proceed to hearing on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that a suit alleging breach of the state's constitutional duty under Article 4 to promote awareness of the Constitution is not an enforcement action for human rights under Chapter Four and should be brought by plaint under Order 4 CPR, not by notice of motion under the Judicature (Fundamental and other Human Rights and Freedoms) (Enforcement Procedure) Rules 2019. The plaint disclosed a cause of action based on the plaintiffs' personal claims that they were not taught the Constitution or provided translated versions. All preliminary objections and counter-objections were dismissed and the matter was set down for hearing on the merits.

Outcome

Matter to proceed to hearing on the merits

Facts

The Plaintiffs, two indigenous Ugandan citizens, brought suit against the Attorney General alleging that the state failed to discharge its constitutional duty under Article 4 to translate the Constitution into all indigenous local languages, promote awareness of the Constitution, and ensure educational and military institutions incorporate constitutional education in their curricula. The Plaintiffs claimed they were never taught the Constitution at school before university nor provided with translated versions in their local languages. The Defendant filed a written statement of defence denying the allegations and asserting that translations in a number of local languages had been done and copies disseminated. The Defendant raised two preliminary objections: that the suit was commenced under the wrong procedure and that the plaint disclosed no cause of action. The Plaintiffs countered with an objection that the defence was frivolous and vexatious.

Issues

  1. Whether the Plaintiffs' suit was commenced under the correct procedure.
  2. Whether the plaint discloses a cause of action against the Defendant.
  3. Whether the Written Statement of Defence filed by the Defendant is frivolous, vexatious and full of mere denials such that it should be struck out.

Orders

  • The preliminary objection that the suit was commenced under a wrong procedure is dismissed.
  • The preliminary objection that the plaint does not disclose a cause of action is dismissed.
  • The counter preliminary objection that the Written Statement of Defence is frivolous, vexatious and full of mere denials is dismissed.
  • The suit shall be fixed for hearing on the merits.
  • Costs of this proceeding shall be in the cause.

Rules and key headnotes

Constitutional Law — Enforcement of Constitutional Rights — Rights Outside Chapter Four — Procedure for Enforcement
Where a suit alleges breach of a constitutional duty or right provided for outside Chapter Four of the Constitution, the Judicature (Fundamental and other Human Rights and Freedoms) (Enforcement Procedure) Rules 2019 do not apply, and the matter should be brought as an ordinary suit by plaint under Order 4 of the Civil Procedure Rules.
Constitutional Law — Scope of Fundamental Rights Enforcement Rules — Article 4 State Duties Not Chapter Four Rights
The Judicature (Fundamental and other Human Rights and Freedoms) (Enforcement Procedure) Rules 2019 apply only to actions alleging infringement of rights under Chapter Four and Article 45 of the Constitution, or to public interest litigation concerning such rights. A suit alleging breach of the state's duty under Article 4 (which falls under Chapter 1) does not fall within the scope of these Rules.
Constitutional Law — Justiciability of Constitutional Duties — Article 4 Duty to Promote Constitutional Awareness
The fact that the Constitution is silent on how a particular constitutional duty is to be enforced does not mean that breach of that duty is not actionable. Where the Constitution does not prescribe a specific enforcement mechanism for a duty such as that under Article 4, a person with a proper cause of action may bring an ordinary suit under the Civil Procedure Rules.
Civil Procedure — Cause of Action — Elements — Right, Violation, and Liability
A cause of action is disclosed when the pleadings establish that the plaintiff enjoyed a right, that the right was violated resulting in injury or damage, and that the defendant is liable for the violation.
Civil Procedure — Pleadings — Mixed Claims — Personal Rights and Public Interest
Where a plaint is not brought as a public interest action or as a representative suit, the plaintiffs have no capacity to bring suit in the interest of other unnamed persons without their authority. However, insofar as plaintiffs plead breach of their personal rights, they may establish a cause of action, and the presence of improperly pleaded claims on behalf of others should not defeat the entire action but may be cured by amendment.
Civil Procedure — Written Statement of Defence — Denials — Effect of Failure to Specifically Deny
While Order 8 Rule 3 CPR provides that any allegation of fact in the plaint not specifically denied or stated to be not admitted shall be taken to be admitted, the court retains discretion to require any facts so admitted to be proved otherwise than by admission. Failure to specifically deny allegations does not automatically render a written statement of defence frivolous, vexatious, or liable to be struck out, but may go to the strength of the defendant's case at trial.

Legislation cited (15)

Cases cited (12)

  • Mwesigwa Hannigton and 3 Others v Attorney General (Court of Appeal Civil Appeal No. 02 of 2008)
  • Charles Twagira v Attorney General (CACA 61 of 2002)
  • Hajji Medi v Wandera Stephen (Civil Appeal No. 102 of 2011)
  • Muwanga Daniel v Sun Huawen (Miscellaneous Application No. 114 of 2018)
  • Ssemakula v Serunjogi (High Court Civil Suit No. 187 of 2012)
  • Tororo Cement Co. Ltd v Frokina International Ltd (Civil Appeal No. 21 of 2001)
  • Major General David Tinyenfuza v Attorney General of Uganda (Constitutional Appeal No. 1 of 1997)
  • General Parts (U) Ltd v Middle North Agencies Ltd and District Land Board of Kampala and Others (High Court Civil Suit No. 610 of 2013)
  • Auto Garage v Motokov (1971) EA 314
  • Kapeeka Coffee Works Ltd v NPART (Civil Appeal No. 03 of 2000)
  • Ainomugisho Winfred and Others v Fatuma Nalumansi and Others (High Court Land Division Miscellaneous Application No. 2084 of 2016)
  • Eco Bank Uganda Limited v Kalsons Agrovet Concern Ltd and Others (High Court Civil Suit No. 573 of 2016)

Full judgment

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

Kiirya and Another v Attorney General (Civil Suit No. 297 of 2019) [2022] UGHCCD 1 (10 January 2022)
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.