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National Housing & Construction Company Limited v Ambitious Construction Company Limited (Miscellaneous Application 3105 of 2024)

High Court · [2024] UGCOMMC 16 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for recusal of judge arising from a pending application for review of a ruling that dismissed an application to set aside an arbitral award
Decision
Application for recusal dismissed; court to proceed with hearing of the pending application for review

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application for recusal. The applicant failed to establish any ground warranting recusal under the Constitution (Recusal of Judicial Officers) Practice Directions 2019. The court found no evidence of actual or apparent bias, affirming that both parties had received a fair hearing and that the earlier adverse ruling against the applicant did not constitute bias. The application was an afterthought brought after an unfavourable decision rather than at the earliest opportunity.

Outcome

Application for recusal dismissed; court to proceed with hearing of the pending application for review

Facts

The respondent obtained an arbitral award against the applicant in a construction dispute concerning Impala Estate in Namungoona. The respondent sought enforcement of the award while the applicant sought to set it aside. On 20 December 2023, the court dismissed the applicant's challenge, finding it filed out of time, and enforced the award. The applicant filed an application for review on 22 December 2023. On 22 January 2024, through M/s Kyagaba & Otatiina Advocates, the applicant applied for the judge's recusal, alleging actual and apparent bias in favour of the respondent and their lawyers, M/s Kaggwa & Kaggwa Advocates. The grounds included allegations that the court invented facts, violated constitutional rights to a hearing, and displayed bias in another arbitration matter involving the same law firms. The applicant claimed these findings damaged their lawyers' professional reputation and exposed them to potential negligence litigation.

Issues

  1. Whether the judge should recuse herself from hearing the application for review and related matters on grounds of actual or apparent bias.

Orders

  • Application for recusal dismissed.
  • No order as to costs.
  • The court will proceed to hear HCMA No. 3105/2023 and all related matters.

Rules and key headnotes

Recusal of Judicial Officers — Test for Bias — Objective Standard
The test for recusal of a judicial officer on grounds of bias is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased.
Recusal of Judicial Officers — Burden of Proof — Demonstrating Grounds
The burden of proof in an application for recusal rests on the applicant, who must demonstrate that the circumstances warranting recusal as set out under Rule 7 of the Constitution (Recusal of Judicial Officers) Practice Directions 2019 exist. Mere allegations contained in correspondence are insufficient; the applicant must adduce proof of the truth of the charges.
Recusal of Judicial Officers — Adverse Decision Not Ground for Recusal
The fact that a court has decided a case against a party is not a ground for recusal of a judicial officer. Repetitive losses before a particular judge do not constitute evidence of bias.
Recusal of Judicial Officers — Timing of Application — Earliest Opportunity
An application for recusal must be raised at the earliest opportunity. A party should not wait until a decision has been made against them before raising allegations of bias. An application brought after an unfavourable decision is an afterthought and does not pass the test for recusal.
Recusal of Judicial Officers — Reasonable Apprehension — Objective and Reasonable Standard
The apprehension of bias test is objective and the person alleging bias must be reasonable. The apprehension of bias itself must be reasonable in the circumstances of the case. Unfounded or unreasonable apprehension of bias on the part of a judicial officer can never be a justifiable basis for seeking recusal.
Judicial Oath — Binding Nature — Duty to Administer Justice Impartially
All judicial officers take an oath to administer justice to all manner of people impartially, and without fear, favour, affection or ill will. That oath must be respected and creates a duty to hear cases with a clear mind regardless of previous adverse rulings against a party.

Legislation cited (2)

  • Constitution (Recusal of Judicial Officers) Practice Directions 2019 r.7
  • Civil Procedure Rules O.18 r.2

Cases cited (11)

  • Re: Indian Ocean Hotel Limited (Commercial Cause No. 2 of 2020)
  • Male H. Mabirizi K. Kiwanuka v Attorney General (Miscellaneous Application No. 89 of 2022)
  • Magil v Porter (2002) 2 AC 357
  • Male H. Mabirizi K. Kiwanuka v Attorney General of the Republic of Uganda (Application No. 2 of 2002)
  • Carter - Artis case 1981 a decision of the Supreme Court of New Jersey in United States
  • Meera Investments Limited v Commissioner General, URA (Civil Appeal No. 15 of 2007)
  • Attorney General of the Republic of Kenya v Prof. Anyang' Nyogo & 10 Others (Application No. 5 of 2007)
  • Ole Keiwua v Chief Justice of Kenya & 6 Others (2006 KLR)
  • Re: Application for Recusal of Hon. Justice Owiny Dollo CJ by Male H. Mabirizi K. Kiwanuka (Miscellaneous Application No. 3 of 2021)
  • Teachers Service Commission v Kenya Union of Teachers & 3 Others (Court of Appeal of Kenya No. 196 of 2015)
  • Uganda Polybags Ltd v Development Finance Co Ltd and others [1999] 2 EA 337

Full judgment

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

National Housing & Construction Company Limited v Ambitious Construction Company Limited (Miscellaneous Application 3105 of 2024) [2024] UGCommC 16 (20 February 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.