Wakilii

Male Mabirizi v Attorney General (Miscellaneous Application No. 21 of 2022)

High Court · [2022] UGHCCD 52 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of proceedings pending determination of East African Court of Justice reference challenging judge's refusal to recuse himself
Decision
Application for stay of proceedings dismissed; underlying proceedings to continue before Justice Ssekaana Musa

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that Article 38(2) of the Treaty for Establishment of the East African Community does not operate as an automatic injunction requiring stay of national court proceedings once a dispute is referred to the East African Court of Justice. The High Court has no jurisdiction to stay proceedings or make interlocutory orders in respect of matters pending before the East African Court of Justice except where the court itself has requested a preliminary ruling. The applicant failed to establish a prima facie case with likelihood of success, irreparable damage, or that the balance of convenience favoured granting the stay. Application dismissed with costs to the respondent.

Outcome

Application for stay of proceedings dismissed; underlying proceedings to continue before Justice Ssekaana Musa

Facts

The applicant filed Miscellaneous Application No. 21 of 2022 seeking to stay proceedings in Miscellaneous Applications No. 843 and 846 of 2021 pending determination of East African Court of Justice Reference No. 01 of 2022. The EACJ reference challenged Justice Ssekaana Musa's refusal to recuse himself from hearing the underlying applications. The applicant argued that Article 38(2) of the Treaty for Establishment of the East African Community required Uganda as a partner state to refrain from actions detrimental to dispute resolution once a matter is referred to the EACJ. The respondent opposed the application, contending that it was an abuse of process intended to circumvent the Constitution (Recusal of Judicial Officers) (Practice) Directions 2019, which provide that appeals from recusal decisions can only be made after the suit is determined. The respondent further argued that the court lacked jurisdiction to make interlocutory orders in respect of matters pending before the EACJ.

Issues

  1. Whether the court should stay all proceedings, rulings and decisions in Miscellaneous Application No. 843 of 2021 and Miscellaneous Application No. 846 of 2021 pending determination of East African Court of Justice Reference No. 01 of 2022.
  2. Whether Article 38(2) of the Treaty for Establishment of the East African Community operates as an automatic injunction requiring stay of national court proceedings once a dispute is referred to the East African Court of Justice.
  3. Whether the High Court has jurisdiction to grant interlocutory orders staying proceedings in respect of matters pending before the East African Court of Justice.
  4. Whether the applicant satisfied the requirements for an injunctive order staying proceedings.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Stay of Proceedings — East African Court of Justice Reference — Article 38(2) of EAC Treaty — Not an Automatic Injunction
Article 38(2) of the Treaty for Establishment of the East African Community, which requires partner states to refrain from actions detrimental to dispute resolution once a matter is referred to the EACJ or Council, does not operate as an automatic injunction requiring stay of national court proceedings. It is a call to self-censorship by the partner state and does not automatically stay proceedings in national courts.
Civil Procedure — Jurisdiction — Interlocutory Orders — Matters Pending Before EACJ
The High Court has no jurisdiction to stay proceedings or make interlocutory orders in respect of matters pending before the East African Court of Justice except where the court itself has requested the East African Court of Justice for a preliminary ruling on a matter pending before it.
Civil Procedure — Recusal — Appeal Against Refusal to Recuse — Timing
Under the Constitution (Recusal of Judicial Officers) (Practice) Directions 2019, where a judicial officer declines to recuse himself or herself, the matter shall proceed for hearing and any appeal arising from the refusal to grant an application for recusal shall be made only after the matter has been determined. A challenge to a recusal decision during the pendency of proceedings cannot constitute valid grounds to stay those proceedings.
Civil Procedure — Injunctions and Stay Orders — Requirements — Prima Facie Case, Irreparable Damage, Balance of Convenience
For an application for an injunction or order of stay of proceedings to succeed, the applicant must show: (i) a prima facie case that is neither frivolous nor vexatious and has a probability of success; (ii) that failure to grant the order will cause irreparable damage that cannot be compensated by damages; and (iii) if the court is in doubt on either requirement, the court will determine the application on the balance of convenience.
Administrative Law — Judicial Independence — Recusal — Insufficient Grounds
Grounds for recusal such as a judge not greeting a litigant in court or threatening to take the litigant to prison for exhibiting questionable decorum are insufficient to establish bias or require recusal. Judges are bound by their judicial oath to dispense justice without fear, favour or ill will, and litigants do not have the right to object to their cases being heard by particular judicial officers merely because they believe such persons will be less likely to decide cases in their favour.

Legislation cited (12)

  • Treaty for Establishment of the East African Community Article 38(2)
  • Treaty for Establishment of the East African Community Article 23(1)
  • Treaty for Establishment of the East African Community Article 27(1)
  • Treaty for Establishment of the East African Community Article 33(2)
  • Constitution of Uganda 1995 Article 123(1)
  • Constitution of Uganda 1995 Article 28(1)
  • Judicature Act s.33
  • Judicature Act s.39
  • Constitution (Recusal of Judicial Officers) (Practice) Directions 2019 para 8(4)
  • Constitution (Recusal of Judicial Officers) (Practice) Directions 2019 para 8(5)
  • Constitution (Recusal of Judicial Officers) (Practice) Directions 2019 para 9
  • Uganda Code of Judicial Conduct 2003 paras 1-4

Cases cited (7)

  • Bassajabalaba & Another v Attorney General (Constitutional Application No. 9 of 2013)
  • Timothy Alvin Kahoho v Secretary General of The East African Community (Application No. 5 of 2012)
  • Henry Kyarimpa v Attorney General of Uganda (Appeal No. 6 of 2014)
  • M.K. Financiers Ltd v N. Shah & Co. Ltd (Miscellaneous Application No. 764 of 2014)
  • Davis Wesley Tusingwire v Attorney General (Constitutional Application No. 06 of 2013)
  • Attorney General of the Republic of Kenya v Prof. Anyang' Nyong'o & 10 Others (Application No. 5 of 2007)
  • The President of the Republic & 2 others v. South African Rugby Football Union & 3 others Case CCT 16/98

Full judgment

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

Male Mabirizi v Attorney General (Miscellaneous Application No. 21 of 2022) [2022] UGHCCD 52 (27 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.