Wakilii

Kintu T/a Genesis Drug Shop v National Drug uthority (Misc Cause 159 of 2023)

High Court · [2024] UGHCCD 98 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review seeking certiorari, mandamus and declarations challenging rejection of drug shop relocation application
Decision
Application for judicial review dismissed with costs to the Respondent

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Holding

Held that while the applicant's constitutional claims were misplaced and should have been pursued before the Constitutional Court, the remainder of the judicial review application was competent after severance of the unconstitutional pleadings. The court found the application amenable to judicial review as it involved a public body in a public law matter. However, the application failed on the merits as the applicant did not establish illegality, procedural impropriety, or irrationality in the National Drug Authority's decision-making process when it rejected the drug shop relocation application for non-compliance with proximity requirements.

Outcome

Application for judicial review dismissed with costs to the Respondent

Facts

The applicant operated Genesis Drug Shop at Kitebi, Mutundwe under a license from the National Drug Authority. When his landlady wished to renovate, he applied from 2022 onwards to relocate his drug shop to new premises at Najjanankumbi, Kiwanuka Road, Rubaga Division. The National Drug Authority repeatedly rejected his applications on grounds that the proposed location was less than 1.5 kilometres from the nearest existing pharmacy as required by Regulation 9(1) of the National Drug Policy and Authority (Licensing) Regulations 2014. The authority also cited that at certain times the applicant lacked a valid license and had not properly notified them of changes in ownership. Despite interventions by the Inspector General of Government and several reconsideration requests through lawyers, the authority maintained its position. The applicant then sought judicial review, challenging the decision as illegal, irrational and procedurally improper.

Issues

  1. Whether the application is competent before the Court?
  2. Whether the application is amenable for judicial review?
  3. Whether the application raises any sufficient grounds for judicial review?
  4. What remedies are available to the parties?

Orders

  • Application dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Judicial Review — Competence — Constitutional Questions and Severance
Where an application for judicial review includes claims seeking declarations that statutory provisions are unconstitutional, such claims are misplaced as they fall within the exclusive jurisdiction of the Constitutional Court under Article 137 of the Constitution. However, the principle of severance may be applied to expunge the offending constitutional pleadings while allowing the properly framed judicial review reliefs to proceed, provided the applicant's primary intention was to seek judicial review remedies and not to file a constitutional petition.
Administrative Law — Abuse of Court Process — Judicial Review Distinguished from Appeal
An application for judicial review does not constitute abuse of court process merely because the applicant is aggrieved by an administrative decision and has been previously guided on compliance requirements. The proper test is whether the process is being used for an improper purpose or for a purpose for which it was not intended. Where an applicant seeks to challenge the decision-making process rather than appealing the merits of the decision itself, the application is properly before the court.
Judicial Review — Amenability — Public Body and Public Law Rights
For a matter to be amenable to judicial review, two requirements must be satisfied: first, the body under challenge must be a public body whose activities can be controlled by judicial review; and secondly, the subject matter must involve claims based on public law principles and not the enforcement of private law rights. A statutory regulator's decision to grant or refuse a license is a public law matter amenable to judicial review.
Administrative Law — Judicial Review — Scope of Review — Decision versus Decision-Making Process
Judicial review is concerned with the decision-making process and not with the decision itself. The court exercises supervisory jurisdiction to ensure that public powers are exercised in accordance with basic standards of legality, fairness and rationality. The court should not adopt an approach that indicates that if it were in the place of the public body, it would have made a different decision; such an approach is only available on appeal and not in judicial review.
Administrative Law — Illegality — Erroneous Interpretation of Regulations
Where a public body acts within the boundaries of its statutory authority, its construction and application of relevant regulations cannot be impeached by way of judicial review. A challenge based on allegedly erroneous interpretation or application of regulations invites the court to substitute the decision of the public body with its own decision, which is outside the domain of judicial review.
Administrative Law — Legitimate Expectation — Lawful and Justifiable Expectations
A legitimate expectation must be lawful and justifiable. A claim that other applicants were granted licenses without strict adherence to regulations, even if true, cannot constitute ground for legitimate expectation because such conduct would be illegal and illegitimate. The only legitimate expectation created by a regulatory authority is that it will grant a license if an application compliant with the regulations is submitted.
Administrative Law — Irrationality — Requirement for Valid License
It is not irrational for a statutory regulator to require an applicant to possess a valid license before being considered for relocation of licensed premises. A seller without a valid license is not authorized to carry out the regulated business and cannot be recognized as a licensed seller entitled to apply for relocation.

Legislation cited (14)

Cases cited (14)

  • Attorney General v James Mark Kamoga & Another (SCCA No. 8 of 2004)
  • Geraldine Ssali Busulwa & Another v National Social Security Fund & Another (HCMC No. 032 of 2016)
  • Uganda Land Commission v James Mark Kamoga & Another (SCCA No. 8 of 2004)
  • Attorney General v Yustus Tinkasimmire & Others (CACA No. 208 of 2013)
  • Kuluo Joseph Andrew & Others v Attorney General & Others (HCMC No. 106 of 2010)
  • Arua Kubala Park Operators and Market Vendors' Cooperative Society Ltd v Arua Municipal Council (HCMC No. 003 of 2016)
  • Council of Civil Service Unions v Minister for Civil Service [1985] AC 375
  • Dr. Lam-Lagoro James v Muni University (HCM No. 007 of 2016)
  • Smart Protus Magara & 13 Others v Financial Intelligence Authority (HCMC No. 215 of 2018)
  • Alex Nyika & Another v The Commissioner Land Registration (HCMC No. 259 of 2022)
  • Council of Civil Service Unions & Others v Minister for the Civil Service [1985] AC 374
  • Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762
  • Council of Civil Service Unions v Minister for Civil Service [1985] AC 374
  • United Reflexologists & Another v Hon. Stephen Malinga, Minister for Health and Another (HCMC No. 12 of 2011)

Full judgment

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

Kintu T_a Genesis Drug Shop v National Drug uthority (Misc Cause 159 of 2023) [2024] UGHCCD 98 (10 June 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.