Wakilii

Mwesige & Another v Kampala Capital City Authority & Another (Miscellaneous Cause 12 of 2023)

High Court · [2023] UGHCCD 396 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Human rights enforcement application under Article 50 of the Constitution seeking declarations that applicants' constitutional rights were violated during arrest by KCCA law enforcement officers
Decision
Application for declarations of human rights violations dismissed. Applicants failed to prove on a balance of probabilities that their rights were violated by the Respondents.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that applicants failed to prove on a balance of probabilities that their constitutional rights to freedom from torture and inhuman treatment were violated by KCCA. Where UPDF and police officers effected the arrest and used force, KCCA cannot be held vicariously liable for actions of police and military personnel who are not its agents. Application dismissed.

Outcome

Application for declarations of human rights violations dismissed. Applicants failed to prove on a balance of probabilities that their rights were violated by the Respondents.

Facts

On 5 September 2022 at approximately 8:00pm at Ndundu Complex, Kisaasi, KCCA law enforcement officers under the command of the 2nd Respondent conducted a patrol to remove illegal street vendors. During the operation, the 1st Applicant was arrested after a scuffle broke out. The 1st Applicant alleged he was beaten with metallic rods, wires and sticks, causing injuries to his jaw, teeth and left eye, and was detained at Kira Road Police Station. The 2nd Applicant alleged he was also beaten when he attempted to plead for the 1st Applicant's release. Both applicants were arrested and detained. The 2nd Respondent alleged he was attacked by a mob of approximately 15 men led by the 1st Applicant while effecting arrest of a vendor, and was rescued by UPDF and police. The 2nd Applicant pleaded guilty to obstruction charges and was fined. The 1st Applicant was released on police bond with pending criminal charges.

Issues

  1. Whether the Applicants' right to freedom from torture, cruel, inhuman and degrading treatment was violated by the Respondents.
  2. What remedies are available to the parties.

Orders

  • The application is hereby dismissed.
  • Given the nature and circumstances of this case, no orders as to costs.

Rules and key headnotes

Human Rights — Torture and Inhuman Treatment — Burden of Proof
An applicant alleging violation of the constitutional right to freedom from torture must prove on a balance of probabilities that the torture was inflicted by the respondent's agents, and must adduce sufficient evidence identifying who specifically occasioned the alleged injuries.
Vicarious Liability — State Agencies — Police and Military
KCCA cannot be held vicariously liable for actions carried out by police or UPDF officers acting under their independent legal mandate to maintain public safety and order, even where police were called in by KCCA to assist in an enforcement operation, as police and military are not agents of KCCA.
Torture — Definition — Pain or Suffering Incidental to Lawful Sanction
Under section 2(4) of the Prevention and Prohibition of Torture Act 2012, the definition of torture does not include pain or suffering arising from or incidental to a lawful sanction, including reasonable force used to effect a lawful arrest of a person who has committed an offence and resisted arrest.
Vicarious Liability — Master and Servant — Scope of Employment
For vicarious liability to attach, there must exist a relationship between the party and the person who did the negligent act, and the act must have been done in the course of employment and not when the person was acting on a frolic of his own.

Legislation cited (22)

Cases cited (6)

  • Attorney General v Salvatori Abuki and Another (Supreme Court Criminal Appeal No. 1 of 1998)
  • Rights Trumpet and 2 Others v AIGP Asan Kasingye and 5 Others; Mucunguzi Abel and 9 Others v Attorney General (Miscellaneous Cause Nos. 17 and 13 of 2017)
  • Gideon Olowo v Kampala Capital City Authority and Attorney General (Civil Suit No. 288 of 2018)
  • Ireland vs United Kingdom ECHR Application No.5310/71
  • Paul Byekwaso v Attorney General (Civil Appeal No. 10 of 2002)
  • Joseph Mukasa Balikudembe v Centenary Rural Development Bank Ltd and Attorney General (High Court Civil Suit No. 278 of 2014)

Full judgment

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

Mwesige & Another v Kampala Capital City Authority & Another (Miscellaneous Cause 12 of 2023) [2023] UGHCCD 396 (27 October 2023)
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.