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Nkunyingi-Ssembajja v Secretary, Public Service Commission & Another (MISCELLANEOUS CAUSE NO. 82 OF 2019)

High Court · [2020] UGHCCD 74 · 2020 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review challenging decision to dismiss applicant from public service following criminal conviction, and refusing reinstatement after appellate court ordered retrial
Decision
Decision to dismiss applicant quashed; applicant awarded damages for accrued entitlements pending determination of criminal appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the Public Service Commission's decision to dismiss a public servant immediately upon criminal conviction, without awaiting determination of his appeal and without giving him a hearing or reasons for dismissal, violated natural justice principles and Article 42 of the Constitution. The court quashed the dismissal and ordered payment of accrued entitlements as damages, holding that the Commission was bound by the Solicitor General's opinion that dismissal should await final determination of the criminal appeal.

Outcome

Decision to dismiss applicant quashed; applicant awarded damages for accrued entitlements pending determination of criminal appeal

Facts

The applicant was appointed Deputy Chief Administrative Officer in the public service in 2009. In October 2011 he was charged with criminal offences relating to his service in Manafwa District, and convicted in October 2012. He was sentenced to imprisonment and barred from public service for 10 years. He appealed and was granted bail. While on bail, he discovered he had been dismissed in December 2012 by letter that gave no reasons and was not served on him, and his name removed from the payroll. The Court of Appeal allowed his appeal in September 2015 and ordered a retrial. At retrial he was convicted again and appealed; he was granted bail pending appeal. In March 2017 he sought reinstatement. The Solicitor General opined in April 2017 that it was wrong to dismiss based on criminal conviction prior to final appellate determination. The Public Service Commission declined reinstatement by letter dated 3 December 2018, giving no reasons. The applicant sought judicial review of the dismissal and refusal to reinstate.

Issues

  1. Whether the application raises any grounds for judicial review.
  2. Whether the applicant is entitled to the remedies sought.

Orders

  • Application for judicial review allowed.
  • Decision of the Public Service Commission refusing to reinstate the applicant and the decision contained in the letter dated 3rd December 2018 quashed for procedural impropriety.
  • Applicant awarded damages in the sum of UGX 153,920,000 representing entitlements from November 2012 until determination of his criminal appeal.
  • The award shall attract interest at 20% per annum from the time the amount was due until payment in full.
  • Costs of the application awarded to the applicant against the respondents.

Rules and key headnotes

Administrative Law — Natural Justice — Right to be Heard — Dismissal of Public Servant Pending Criminal Appeal
A public body exercising administrative powers must comply with the rules of natural justice. A public servant convicted by a trial court and who has filed an appeal should be given a hearing before dismissal to ascertain whether an appeal is pending, and the established administrative practice of awaiting appellate determination must be applied without discrimination.
Administrative Law — Natural Justice — Duty to Give Reasons for Administrative Decision
Recording of reasons is a fundamental principle of natural justice. Every administrative decision affecting the rights of a party must be supported by reasons to ensure transparency, fairness, minimise arbitrariness, and enable effective exercise of the right of judicial review.
Employment & Labour — Public Service — Dismissal Upon Conviction — Effect of Pending Appeal
Where an established administrative practice exists of not removing public servants from the payroll pending determination of their criminal appeals, such practice becomes law and must be applied consistently without discrimination. Dismissal upon trial court conviction where an appeal is pending and no stay of execution has been sought by the prosecution contravenes this principle.
Administrative Law — Binding Effect of Solicitor General's Opinion on Government Bodies
An opinion from the Solicitor General as legal adviser to government is binding on government bodies and commissions. Where the Solicitor General advises that a District Service Commission should await final appellate determination before dismissing a convicted officer, the Public Service Commission must heed that advice.
Judicial Review — Remedies — Damages in Judicial Review Proceedings
Damages in judicial review proceedings are awarded in the rarest of cases and in exceptional circumstances. Where procedural impropriety is established, the court may award damages representing contractual entitlements that would have been paid but for the unlawful administrative action.

Legislation cited (5)

Cases cited (8)

  • Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223
  • Gordon Sentiba & 2 Others v Inspectorate of Government (Supreme Court Criminal Appeal No. 6 of 2008)
  • Bank Arabe Espanol SCCA No. 1 of 2001
  • Breen v Amalgamated Engineering Union [1971] 2 QB 175
  • R v Aston University Senate ex parte Roffey [1969] 2 QB 558
  • R v Secretary of State for Health ex parte Furneaux [1994] 2 All ER 652
  • Bendicto Musisi v Attorney General (High Court Civil Suit No. 622 of 1989)
  • Rosemary Nalwadda v Uganda Aids Commission (High Court Civil Suit No. 67 of 2011)

Full judgment

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

Nkunyingi-Ssembajja v Secretary, Public Service Commission & Another (MISCELLANEOUS CAUSE NO. 82 OF 2019) [2020] UGHCCD 74 (30 April 2020)
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.