Mabirizi Kiwanuka v Attorney General (Civil Application No. 40 of 2022)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The single Justice partly granted the interim application. To the extent the Attorney General conceded, a stay was ordered restraining enforcement of the UGX 300,000,000 fine imposed on 27 January 2022 pending the substantive application. The Court held it lacked jurisdiction to stay or set aside the separate High Court order of 15 February 2022 imprisoning the applicant for 18 months for contempt, because no notice of appeal had been lodged against that order; appellate and inherent jurisdiction under article 134(2) require a challenged decision. The prayer to restrain the notice to show cause was overtaken by events following arrest. Enforcement of fundamental rights lay before a competent court of original jurisdiction, not the appellate Court of Appeal.

Outcome

Interim stay granted only in respect of the UGX 300,000,000 fine (by concession); remaining prayers concerning the imprisonment order refused for want of jurisdiction or as overtaken by events.

Facts

The applicant was found guilty of contempt of court by the High Court on 27 January 2022 for posts attacking a judicial officer, and was ordered to pay a fine of UGX 300,000,000 and given a strong warning. He lodged a notice of appeal and requested proceedings the same day, and filed substantive and interim applications for stay of execution in the Court of Appeal. After the Attorney General alleged fresh contemptuous statements, the High Court issued a notice to show cause on 9 February 2022. On 15 February 2022, in the applicant's absence, the High Court found him in contempt a second time and sentenced him to 18 months' imprisonment. A warrant of arrest and committal issued, and the applicant was arrested on 21 February 2022 and committed to Kitalya Prison. The applicant sought an interim order staying all orders in the earlier application and, via a supplementary affidavit, sought to restrain the imprisonment. The Attorney General conceded a stay of the fine but objected that the imprisonment order arose from a separate, unappealed decision.

Issues

1. Whether the applicant satisfied the criteria for the grant of an interim order of stay of execution.
2. Whether the Court of Appeal has jurisdiction to stay or set aside orders of the High Court where no notice of appeal has been lodged against those orders.
3. Whether the interim application, which targeted the High Court order of 27 January 2022, could be extended to cover the subsequent imprisonment order of 15 February 2022.

Orders

• A stay of execution order issues staying the order of the High Court dated 27 January 2022 for the applicant to pay a fine of UGX 300,000,000 pending disposal of Civil Application No 39 of 2022.
• The prayer to stay execution of the notice to show cause issued on 9 February 2022 has been overtaken by events as the applicant was arrested on 21 February 2022 and committed to Kitalya Prison.
• The Court of Appeal has no jurisdiction to entertain prayers to restrain or stay orders issued by the High Court on 15 February 2022 unless the applicant challenges those orders under rules 6(2) and 75; the prayer to suspend the applicant's imprisonment cannot be granted for want of jurisdiction.
• The costs of this application shall abide the outcome of the main application or the appeal as may be determined by a bench of not less than three Justices of Appeal.

Rules and key headnotes

Legislation cited (24)

• Constitution of Uganda art.28(1)
• Constitution of Uganda art.44(c)
• Constitution of Uganda art.139(1)
• Constitution of Uganda art.134(2)
• Constitution of Uganda art.128
• Constitution of Uganda art.126
• Constitution of Uganda art.50
• Constitution of Uganda art.50(1)
• Constitution of Uganda art.50(4)
• Constitution of Uganda art.2
• Constitution of Uganda art.28(12)
• Judicature Act s.33
• Judicature Act s.37
• Judicature Act s.38
• Judicature (Court of Appeal) Rules r.5(2)(b)
• Judicature (Court of Appeal) Rules r.2(2)
• Judicature (Court of Appeal) Rules r.6(1)
• Judicature (Court of Appeal) Rules r.6(2)
• Judicature (Court of Appeal) Rules r.43(1)
• Judicature (Court of Appeal) Rules r.43(2)
• Judicature (Court of Appeal) Rules r.75
• Human Rights (Enforcement) Act 2019 s.3
• Human Rights (Enforcement) Act 2019 s.4
• Human Rights (Enforcement) Act 2019 s.5

Cases cited (11)

• Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 6 of 2013)
• Lubega v Attorney General and Others (Miscellaneous Application No. 13 of 2015)
• Tuswingire v Attorney General (Constitutional Petition No. 6 of 2013)
• Lukwago v Attorney General and Others (Miscellaneous Application No. 94 of 2014)
• Ssali v NSSF (Miscellaneous Application No. 116 of 2017)
• Ssebaduka v Chairman Electoral Commission and Others (Presidential Election Petition No. 1 of 2022)
• Wilson v Church (1879) 12 Ch D 454
• Uganda Revenue Authority v Nsubuga and Another (Miscellaneous Application No. 15 of 2018)
• Attorney General v Shah (No. 4) [1971] EA 50
• Attorney General v Ali and Others [1989] LRC 424
• Jaundoo v Attorney General of Guyana [1971] AC 972

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