Taremwa—Administrative Law Semester II Notes

A) JUDICIAL REVIEW
WHAT IS JUDICIAL REVIEW?

Article 42 of the 1995 Constitution of the Republic of Uganda states that “Any person appearing
before any administrative official or body has a right to be treated justly and fairly and shall have a right to
apply to a court of law in respect of any administrative decision taken against him or her.”

Section 36 of the Judicature Act confers the power of judicial review to the High Court.

Rule 3 of the Judicature (Judicial Review) (Amendment) Rules 2019 defines “judicial review” as “the
process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions
of subordinate courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who
are charged with the performance of public acts and duties.”

Rule 3 of the Judicature (Judicial Review) (Amendment) Rules 2019 gives a broad definition to public
bodies to include: i) The Government, any department services or undertaking of the Government, ii) The
EAC, its institutions and corporations, iii) The Cabinet, Parliament, any Court, iv) District Administration, a
District Council, any district committee of a district council, a local council and any committee of a local
council, v) any Corporation, Committee, Board, Commission or similar body whether corporate or
incorporate established by an Act of Parliament…vi) a political party, a trade union, a society recognized
under the Cooperative Societies Act and any council, board, committee or society established by an Act
of Parliament for the benefit, regulation and control of any profession and non-governmental
organisations.

Rule 3 of the Judicature (Judicial Review) Rules 2009 lays out cases appropriate for judicial review.
These are an application for: a) an order of mandamus, prohibition or certiorari, b) an injunction under
section 38(2) of the Judicature Act restraining a person from acting in any office in which the person is not
entitled to act.

Rule 4 of the Judicature (Judicial Review) (Amendment) Rules 2019 amends the Principal Rules to
introduce Section 3A which states that “Any person who has a direct or sufficient interest in a matter
may apply for judicial review.”

NB: Ian Ellis Jones, in his book, ‘Essential Administrative Law’ states that “The growth of executive
power generated a need for an increase in the scope of judicial review of executive and administrative
action. To quote Lord Denning MR in Moorgate Ltd. v Twitchings (1975), „as Parliament has done
nothing, it is the time the courts did something.”‟
 Taremwa—Administrative Law Semester II Notes
ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION

FACTS

This was an action in which the plaintiffs, Associated Provincial Picture Houses Ltd sought a declaration
against the mayor, aldermen and burgesses of the borough of Wednesbury to the effect that the limitation
in a licence which the defendants granted in respect of performances in cinematograph theatres on
Sunday within their area was beyond the powers of a local authority to impose, namely, that a child under
the age of 15 years, whether accompanied by an adult or not, was to be excluded from Sunday
performances.

HOLDING

Judgment was given for the defendants. It was held that it was not outside the prescribed powers of the
corporation to issue such licences.

ALTERNATIVE METHODS OF INTERFERING WITH ADMINISTRATIVE DECISIONS.

Judicial review is not the only way through which a court interferes in administrative decisions. Other
ways in which administrative decisions may be challenged are;

i) Through the Appeals process.

ii) Through an Ordinary suit.
iii) Through Administrative tribunals.

1. Administrative Tribunals

These are bodies set up by statute to which complaints in a given sector may be referred. A tribunal
cannot be set up unless there is a law providing for it e.g. the Electricity Tribunal is set up under the
Electricity Act Cap. 145; the Leadership Code Tribunal set up under the Leadership Code Act as
amended; the Industrial Court is set up by the Labour Disputes, Arbitration and Settlements Act of 2006
etc.

Their jurisdiction, that is, the matters they handle and the remedies they can grant are limited to those
provided in the parent act which sets them up.

2. Appeals

The right of appeal is a creature of statute. There is no automatic right of appeal. Where an administrative
tribunal makes a decision, a person dissatisfied with the decision may only appeal to the court against it if
there is a law providing for such an appeal. There is no general right of appeal.
 Taremwa—Administrative Law Semester II Notes
KARIMARI CORNER BAR AND RESTAURANT v EMBU LIQUOR LICENSING COURT

[1967] EA 436*:

FACTS

The Liquor Licensing Act provided for the establishment of liquor licensing courts to entertain appeals
relating to renewal or transfer of liquor licenses. The appellant applied for a liquor license and the same
was denied. They appealed to the High Court against that decision.

HOLDING

It was held that the appeal was incompetent because it did not relate to renewal or transfer of the license.
(One only appeals to the extent allowed by statute)

It can be concluded that;

i) The power to appeal is only limited to grounds which are provided for in the law conferring
the right of appeal
ii) Ordinarily, an appellate court has the jurisdiction to re-hear the matter and to make the
decisions the body against which the appeal is made was entitled to make.
iii) By their nature, appeals are restricted e.g. one may not bring fresh evidence on appeal
except in special cases.
iv) Appeals are, in most cases, subjected to strict timelines.

3. Ordinary Suits

Suits are the normal process through which a civil complaint is expected to be brought before court.

Order 4 Rule 1 of the Civil Procedure Rules provides that unless prescribed to the contrary by any
other law, all civil actions shall be commenced before court by way of plaint. Indeed, the huge majority of
civil actions are commenced as ordinary suits by plaint. When a person complains that an administrative
officer or body has acted illegally or improperly, there is nothing to prevent him or her from doing so by
way of a plaint.

The attraction of proceeding by plaint as opposed by judicial review is:

i) When you apply by judicial review, the court has to decide whether the act complained about
is amenable to judicial review and increasingly, courts are showing reluctance to allow judicial
review as opposed to ordinary suits
ii) An ordinary suit allows full exploration of the circumstances of the case; a plaintiff in an
ordinary case is entitled to call all manner of evidence including eyewitnesses, oral and
documentary evidence, physical exhibits and expert witnesses
iii) Judicial review is limited to the prerogative orders, together with injunction, declaration and in
rare cases, damages. On the other hand, an ordinary suit, a court is not limited to what
remedies it can give, it can award compensatory damages, punitive damages, rescission,
rectification, injunctions, specific performance, delivery up, fines, arrest, incarceration in civil
prison – the hands in an ordinary suit are much less tied in a judicial review matter.
 Taremwa—Administrative Law Semester II Notes
iv) Moreover, under Section 36 of the Judicature Act, only the High Court has powers of
judicial review. On the other hand, a civil suit can be suited before a lower court, so long as it
arises within the local jurisdiction of that court and so long as the sum involved is not beyond
the pecuniary jurisdiction of that court.

The Attraction of Judicial Review.

The 1995 Constitution introduced a new constitutional order in which there is an increasing attraction for
judicial review. The “Judicialization” of Politics: there is an increasing temptation to use courts to do what
other organs of government have failed to do through judicial review, public interest litigation and election
petitions.

There is an increasing attraction for judicial review in Uganda and this is evident in the number of cases
filed over the years. Litigants may opt for judicial review as opposed to ordinary suits for a number of
reasons:

i) Time: the law provides for quick disposal of judicial review applications. The 2009 Rules as
amended in 2019 state that an application for judicial review must be determined within 90
days from the day in which it is filed.
ii) The rules prescribe a simple procedure for judicial review: Rule 6 states that it should be by a
notice of motion.
iii) Related to that, the rules provide for an easy way of proving a claim for judicial review: Rule 7
provides that evidence shall be by way of affidavits.
iv) A court entertaining a judicial review matter largely acts on discretion: a power of judicial
review is a discretionary power – the court is only bound to achieve a just outcome. On the
other hand, however, this discretionary power can be problematic because it can create a
situation where the judge is swayed by personal sentiment (idiosyncrasies) and narrow
considerations and a situation arises where on the same or similar facts, different judges
would reach totally different conclusions. This then creates uncertainty in the law and throws
the doctrine of precedent into disarray e.g. Rule 5(1) of the Judicature (Judicial Review)
Rules provides that judicial review applications should be filed without delay and not later
than 3 months from the date when the matter complained of first arose. The question is
whether that time can be extended if the applicant shows just cause e.g. in the case of

PICFARE INDUSTRIES v AG

HOLDING

Justice Musota held that the timelines limitation is a creature of statute and it is not within the judge‟s
power to extend that statutory time frame.
 Taremwa—Administrative Law Semester II Notes
BASIIME v KABALE DISTRICT LOCAL GOVERNMENT

HOLDING

Justice Kwesiga said the court has inherent jurisdiction to extend the time for taking a certain step in the
interest of justice.

NB: On the issue of judicial review being a discretionary power, we can examine the case of Amuron
Dorothy v Law Development Centre.

AMURON DOROTHY v LAW DEVELOPMENT CENTRE

FACTS

The applicant was a former student at LDC. She was admitted after completion of her Bachelor of Laws
Degree from Makerere University Kampala. While at the respondent‟s institution she pursued her studies
up to the final term where she was required to take supplementary examinations in two subjects of
commercial transactions and criminal proceedings. When the results of the supplementary examinations
were released, she had to verify her marks in criminal proceedings. She then applied for verification of
her marks to the Head of the Bar Course in the respondent institution. This verification was conducted by
the Head of the Bar Course who also was the head of criminal proceedings subject. She was later
informed that her results had been verified and she was on the list of persons who qualified for the
graduation and award of a Post Graduate Diploma in Legal Practice. She went on to apply for a
certificate of eligibility for enrolment and was enrolled as an Advocate of the High Court of Uganda.

In 2015 she received a letter from the respondent institution requiring her to appear before the
subcommittee of the Management Committee of the respondent to inquire and investigate allegations of
examination malpractice. On the 10th August 2015 she appeared before the said committee and was
asked questions in relation to her criminal proceedings examination paper for some minutes and she was
told by the said committee that theirs was not a hearing but just an inquiry. On 26th February 2016 the
respondent institution advertised in the New Vision newspaper that the applicant‟s Post Graduate
Diploma in Legal Practice has been cancelled with immediate effect. She later received a call from the
respondent institution requiring her to surrender the original copy of the Post Graduate Diploma in Legal
Practice. The applicant took issue with manner in which her Post Graduate Diploma in Legal Practice
was cancelled and filed an application for judicial review.

HOLDING

Justice Stephen Musota: “Judicial Review is concerned with Prerogative Orders which are basically
remedies for the control of the exercise of power by those in public offices. They are not aimed at
providing final determination of private rights which is done in normal civil suits. The said orders are
discretionary in nature and court is at liberty to refuse to grant any of them if it thinks fit to do so even
depending on the circumstances of the case where there had been clear violation of the principle of
natural justice.”
 Taremwa—Administrative Law Semester II Notes
THE PHILOSOPHICAL CONTEXT OF JUDICIAL REVIEW

The power of judicial review potentially creates a situation of conflict between the various arms of
government and this is because judicial review stands at the intersection of two key doctrines, which
underlie modern theory of government. These are the doctrine of Separation of Powers and the doctrine
of the Rule of Law.

In theory, modern government has three branches/functions (what is known as the Montesquian Trinity).
Under the doctrine of Separation of Powers, the Legislature is supposed to make the law, the Executive
implements the law and also puts in place policies for the everyday administration of the country, while
the Judiciary on the other hand applies the laws to facts to decide disputes between individuals or
between individuals and the state and other non-state entities. None of the three arms theoretically is
supposed to purport to exercise the functions of the other or to interfere in the operations of the other
arm.

 In Lee v Bude and Torrington Junction Railway Co. (1871) LR 6 CP 576, Willes J. stated that;

“Are we to act as regents over what is done by Parliament with the consent of the Queen, Lords and
Commons? I deny that any such authority exists. If an Act of Parliament has been obtained
improperly, it is for the legislature to correct it by repealing it, but so long as it exists as law, the
Courts are bound to obey it. The proceedings here are judicial, not autocratic, which they would be if
we could make laws instead of administering them?”

 In Jim Muhwezi and Three Others v Attorney General, it was held that;

“The Constitution of Uganda makes provision for Separation of Powers. It is a fact that the three organs of
State are not rigidly separated in functions and powers. The Separation of Powers…may overlap here
and there but the distinction is very clear.”

Judicial review, then, presents a conundrum whereby the court is supposed to intervene in administrative
decision-making, that is, in the Executive function. It potentially puts the judiciary on a collision course
with the Executive. Administrators are supposedly experts who use their expertise to take administrative
decisions basing on facts of which they have peculiar knowledge. Why, then, should a non-expert – a
judge – sit in judgment over administrative actions? The judge does so because of another doctrine; the
doctrine of the Rule of Law.

The Rule of Law stipulates that all decisions and governmental actions should be done within the law. No
power is to be exercised unless it is conferred by a known law. The only source of authority is the law.
This means both the content of authority and the process or manner in which it is exercised must be in
accordance with the law, that is, government according to law.

The question, then, is: where it is claimed that an administrative authority has acted outside the law, there
must be an institution, which enquires into that claim to determine therefore whether the actions of the
administrator are valid and the organ of state on which that power has been conferred is the Judiciary.
Because of the Rule of Law, Separation of Powers has given way to a superior doctrine: the doctrine of
Checks and Balances. Separation of powers in a pure form is neither attainable nor desirable.

Moreover, Article 126 provides that judicial power is derived from the people and is exercised in their
name. It should be noted, however, that courts are very mindful of the danger of unduly intruding in the
work of other organs of the state. Therefore, they are reluctant to allow judicial review to get out of hand.
 Taremwa—Administrative Law Semester II Notes
NB: In the case of Severino Twinobusingye v AG, the Constitutional Court, making reference to Maj.
Gen. David Tinyefuza v AG, pointed out that it is not desirable for the court to try to micromanage other
arms of the state by interfering in their decision-making powers; that except in clear cases of abuse of
authority or acting outside the law, the court will always leave institutions to use their internal mechanisms
to address complaints.

That is why, under Rule 7A of the Judicature (Judicial Review) Rules 2019, it is now provided that
when deciding a judicial review application, the court should inter alia ascertain:

i) That the matter before it is one amenable to judicial review

ii) That the applicant before making the application has exhausted the existing internal
remedies in the organization for addressing his complaint.

GODBER TUMUSHABE v MAKERERE UNIVERSITY

FACTS

The disciplinary committee of the University Council made a decision subjecting the applicant to
disciplinary action. He appealed to the Staff Appeals Tribunal of the University. Before the appeal was
determined, he applied to the High Court for judicial review of the decision of the disciplinary committee.

HOLDING

Justice Ssekaana held that the applicant had not exhausted the internal remedies, as the Staff Appeals
Tribunal had not made its decision and therefore he could not access judicial review.
 Taremwa—Administrative Law Semester II Notes
THE LEGAL BASIS FOR JUDICIAL REVIEW

Historically, the power of a court to carry out judicial review of administrative actions was a prerogative
one and was inherent, arising from its supervisory jurisdiction. It was a narrow power, limited in scope and
utility. In 1995, in Uganda‟s case, that changed.

The power of judicial review is now enshrined in Article 42 which states that;

“Any person appearing before any administrative official or body has a right to be treated justly
and fairly and shall have the right to apply to a court of law in respect of any administrative
decision taken against him or her.”

By being included in Chapter 4, the right to judicial review of administrative decisions has been elevated
to the level of a fundamental human right. Article 20(1) tells us fundamental human rights of individuals
are inherent and not granted by the State.

FR. FRANCIS BAHIKIRWE MUNTU v KYAMBOGO UNIVERSITY

HOLDING

Justice Remmy Kasule emphasized the importance of Article 42. He stated that it has created a new legal
order, and under it the court is now supposed to adopt a generous and expansive approach to judicial
review. The reality, however is that the courts have continued to adopt a narrow view that they will only
interfere in actions tainted with illegality, irrationality or procedural impropriety.

Article 28(1) likewise gives every person a right to a fair, speedy and public hearing before an
independent, impartial court or tribunal. Together, Articles 42 and 28(1) mean that decisions must be
fair, transparent and prompt, otherwise they will be challenged.

Judicial review is not so much concerned with the content of the decision in question; it is more
concerned with the decision-making process. If the body sat duly constituted, had the legal authority to
make the decision and obliged with the prescribed procedures and acted fairly all through, a court of law
cannot strike down its decision merely because it disagrees with the content of that decision.

The actual process for judicial review is then governed by Sections 36 and 38 of the Judicature Act,
Cap 13 and the Judicature (Judicial Review) Rules 2009 as amended in 2019.

YASIN SENTUMBWE MUNAGOMBA AND ANOTHER v UGANDA CHRISTIAN UNIVERSITY

FACTS

The applicants were law students at the University who had been expelled after the Students‟ Disciplinary
Committee sat in an extraordinary meeting which recommended their immediate expulsion. They claimed
that they were not accorded a fair trial, while the University claimed that the application was incompetent
for having been filed prematurely without exhausting all alternative remedies first and that they were
accorded their right to a fair hearing.
 Taremwa—Administrative Law Semester II Notes
HOLDING

Hon. Lady Justice Margaret Mutonyi stated that the High Court derives its judicial review power from
the Judicature Act Cap 13 Laws of Uganda, the Judicature Judicial Review Rules 2009 and the
Constitution of the Republic of Uganda, as well as the University, Tertiary and Other Institutions Act in this
particular case.

She further stated that: “Judicial review is an audit of the legality of the decision making process by public
bodies. The role of the court is not to remake the decision being challenged or inquire into the merits of
the decision, but to conduct a review of the process by which the decision was reached in order to assess
whether that decision was flawed and should be revoked or quashed.”

“Needless to mention, nobody expects any public body or authority having quasi-judicial functions to act
unfairly or beyond its powers in the process of exercising its unfettered administrative authority. It must
however observe rules of natural justice where statutory rules do not apply.”

“Judicial review is not concerned with what led to the administrative decision but the process of arriving at
the decision.”

It was held that the Students Disciplinary Committee members had exercised authority they did not have
in as far as resolving to expel the students from the University and this was illegal as it was ultra vires its
powers. It was further held that the Vice-Chancellor being the highest organ of the disciplinary process
according to the Code of Conduct Handbook had sealed the fate of the students without giving them a
chance of going through the Appellate system.
 Taremwa—Administrative Law Semester II Notes
JURISDICTION AND PROCEDURE IN JUDICIAL REVIEW

A. JURISDICTION

Section 36(1) of the Judicature Act grants the High Court the power of judicial review. This is because
judicial review is a supervisory exercise and the High Court has supervisory jurisdiction: quasi-judicial
bodies and tribunals are supervised by the High Court.

I) Locus standi.

According to Rule 3A of the Judicature (Judicial Review) Rules, any person who has a direct interest
in the matter can bring a judicial review application. It must be a person against whom a decision is made
or is about to be made or whom the decision affects – a member of a group can bring an action on behalf
of a group or in and of their own motion.

II) Against whom can a judicial review application be brought?

It must be the decision of a public body or authority i.e. a person or body acting in a public capacity. This
means it is a decision made in dealings with members of the public. Ordinarily, a decision within a public
entity is not amenable to judicial review.

a) What is a public body?

Some public bodies are clearly so e.g. government agencies, corporations, ministers and public
institutions; as well as private institutions that dispense public functions. In the Judicature (Judicial
Review) Rules as amended in 2019, a public body is defined widely to include institutions of learning,
civil society organizations, political parties and even limited companies.

b) Whether the body must have corporate personality?

In law, we have natural persons and corporate persons. Initially it was felt that since unincorporated
bodies are not persons at law against which suits can be brought, then applications for judicial review are
also untenable against them: this view has since been declared incorrect. A duly constituted body can be
a subject of judicial review even when it is not a legal person. However, where you bring an application
against non-legal persons in judicial review, the application has to be brought against them in an official
capacity, not in an individual capacity. Therefore, one can apply against the Vice Chancellor of Makerere
but not Prof. Nawangwe. This is aimed at avoiding situations where individuals are condemned to costs
for official actions.

See: John Jet Tumwebaze v Makerere University

Courts, however, are sometimes still hesitant to allow applications against non-persons.

FUELEX LTD v ATTORNEY GENERAL

HOLDING

The Court struck off the Minister as a party and argued that under the Government Proceedings Act,
claims arising from actions by government officials are brought against the Attorney General.
 Taremwa—Administrative Law Semester II Notes
The general practice is that the attractiveness of judicial review is that one complains against a culprit
public official directly such that a decision of the court is directly enforceable against them.

III) What actions are amenable to judicial review?

For judicial review applications to be sustained, Rule 7A provides that it must be a decision that is
amenable to judicial review. What that means is that it must be a decision by a body acting in a judicial,
quasi-judicial, or administrative capacity. It means that it receives and handles members of the public that
it receives evidence/information and acts on it to make a decision – when that is the case, it must act
fairly and grant a fair hearing.

A wide range of decisions has been found amenable to judicial review e.g. the interdiction of a public
servant – Dennis Biraije v AG; suspension/expulsion of a political party member, Ssekikuubo Theodore
v NRM; refusal/failure to appoint a board, Pastori v Kabale District Local Government; failure of an
existing entity to cede and decide an applicant‟s application, Maj. Gen. David Sejusa v AG; failure to
allow the applicant to retire from the army etc.

The applicant must have exhausted existing remedies within the organization/institution. Under Rule
7A(b), a party bringing the application must satisfy court that he has first exhausted the internal remedies
within the organization if there are any. Most public authorities have internal complaint mechanisms e.g.
tribunals or bodies of individuals with appellate powers.

See: Godber Tumushabe v Makerere University.

At some point, it used to be thought that if one can bring an ordinary suit, the door to judicial review was
closed. It is no longer tenable to dismiss an application for judicial review on the ground that one has
brought an ordinary suit. The two are alternative reliefs and so long as a matter is amenable to judicial
review, it will be entertained.

IV) When does one bring an application for judicial review?

Some applications for judicial review can be brought before a decision has been made to prevent that
decision from being made e.g. an application for prohibition or for injunction. Ordinary applications occur
after a decision is made so that it is quashed e.g. through certiorari. Other applications seek to compel a
respondent where they have refused to act – order of mandamus.

Rule 5 of the Judicature (Judicial Review) Rules provides that an application for judicial review must
be made expeditiously and not later than 90 days from the day the complaint arose.

B. PROCEDURE

I) Form of Application

Rule 6: An application for judicial review has to be by notice of motion. (They are typically named
Miscellaneous Causes)
 Taremwa—Administrative Law Semester II Notes
II) Mode of tendering evidence

Under Rule 7, evidence in Judicial Review proceedings is by affidavit, either of the applicant or of anyone
familiar with the facts.

GROUNDS FOR JUDICIAL REVIEW

The effect of Article 42 of the 1995 Constitution was anticipated to be that the doors of courts had been
opened to enable complainants to bring judicial review against any decision of a public body. Indeed,
initially that was the case.

The other factors that had brought about a plethora of judicial review applications were that the old rules
of procedure had been onerous until they were removed and replaced by the 2009 Judicature (Judicial
Review) Rules. Before that, it was under the Law Reform (Miscellaneous Provisions) (Rules of
Court) Rules, Statutory Instrument 79-1. The courts, however, were uncomfortable with the flood of
applications. They felt that litigants were abandoning the normal mode of complaining to court by plaint in
favour of judicial review. They would therefore strike down such applications.

CLASSY PHOTO MART v THE COMMISSIONER CUSTOMS, UGANDA REVENUE AUTHORITY

HCT - 00 - CC - MC - 30 - 2009

FACTS

The Applicant in July 2009 imported into the country 1,050 cartons of photographic paper duty was
assessed and taxes of Ug.Shs.26,520,926/= paid. However, the Respondent queried the assessment
made by the Applicant‟s clearing agent and the Respondent reassessed the taxes by uplifting its value to
Ug. Shs. 33,002,729/=. This is because the Respondent rejected the Applicant‟s self-assessment based
on cartons and submitted values based on rolls. The Applicant then appealed against the uplifted value
by letter dated 30th July 2009 to the Commissioner Customs. On the 21st October, 2009, the
Commissioner Customs of the Respondent replied stating that it had reviewed the appeal but declined to
change the revised assessment. The Applicant thereafter sought orders that a declaration be made that
the Respondent‟s decision was illegal, of no legal consequence, an abuse of discretionary powers and
ultra vires the powers of the Respondent under the relevant customs law.

The Applicant also further prayed for orders of certiorari, quashing the Respondent‟s decision, prohibition
against taking further action on the impugned decision and mandamus to release the said goods.

HOLDING

Justice Geoffrey Kiryabwire: “In this era of case management, it is the duty of a trial Judge to see that
cases are tried as expeditiously and in expensively as possible (See Lord Roskill in Ashmore V
Corporation of Lloyds [1992] All ER 486 at 488) and this also means ensuring that unjustified short cuts to
the Judge‟s docket are eliminated.”

The judge expressed the discomfort that bringing applications for judicial review must be limited to the
traditional grounds and must not be opened up to any manner of complaint. It was held that this particular
application was premature in law since the applicant still had to exhaust other existing remedies such as
the right to appeal to the Tax Appeals Tribunal.
 Taremwa—Administrative Law Semester II Notes
A. ILLEGALITY

This is also referred to as substantive ultra-vires and may arise in four situations:

a) Exercising authority that one does not possess, that is, effecting actions one is not
entitled to effect.

RE ABDALLA

FACTS

The Principal Immigration Officer deported the applicant, who challenged the deportation through a
judicial review application. In the application he proved that he was a non-citizen.

HOLDING

It was held that the immigration officer did not have the authority to deport a citizen.

b) Where a decision is taken by the wrong body.

PASTOLI v KABALE DISTRICT LOCAL GOVERNMENT COUNCIL

FACTS

In the letter suspending or interdicting the applicant, the CAO stated that he was directed by the district
executive council to suspend the applicant.

HOLDING

It was held that the suspension/interdiction was ultra-vires because only the District Service Commission
had the powers to suspend.

c) Where the body making the decisions is improperly constituted.

i) When it is not fully constituted.

HON. MUKASA FRED MBIDDE AND HON. MICHEAL MABIKKE v LDC

HCT-00-CV-MA-No.0002 OF 2013

FACTS

The applicants were Advocates of the High Court of Uganda having obtained Bachelor of Laws, Diplomas
in Legal Practice and were formally enrolled as Advocates. Allegations arose of examination malpractice
and an audit committee known as the “Kania Committee” was constituted. It produced a report which
called for withdrawal of the applicants‟ diplomas and criminal prosecution. The Applicants averred that
they were not given a fair hearing and that the body was not duly constituted since it was not appointed in
accordance with Section 16 of the Law Development Centre Act.

HOLDING
 Taremwa—Administrative Law Semester II Notes
The Court held that the Audit Committee had been properly constituted.

Justice V.T Zehurikize: “This was purely an internal administrative arrangement for purposes of
gathering information or data in reaction to the Judiciary and public concern on allegations of impropriety
in the respondent‟s examination process and examination results. The report of the audit would then form
the basis of a subsequent formal inquiry. It was merely a fact finding expedition. It was general and
could not have been an inquiry directed at any individual. The respondent was entitled to do this internal
soul searching exercise in a bid to find out whether the allegations leveled against the institution had any
basis.”

The judge further stated that: “If courts were, under the guise of judicial review, to start issuing orders of
prohibition or permanent injunction blocking investigation in public offices it would defeat the very purpose
for which this supervisory jurisdiction of the courts was intended to serve. Orders in judicial review are
discretionary. No court well advised on the law and facts would issue orders calculated to pervert the
course of justice, undermine proper functioning of government machinery and the enforcement of good
governance and the maintenance of the rule of law. It is for this reasons that I find the orders for
prohibition and permanent injunction prayed in this application are misplaced. They cannot be granted.
They would undermine proper functioning of the respondent.”

ii) When non-members participate in its decisions.

DENT v KIAMBU LIQUOR LICENSING COURT

[1968] EA 80

FACTS

The appellant in 1966 purchased a club, the premises of which had enjoyed a proprietory club liquor
licence since 1952. She had a licence for the year 1967, which she applied to renew for 1968. Her
application was rejected by the respondent court on a number of grounds, one of which was that the
appellant had refused to supply alcoholic drinks to persons who were not members of the club. An
uncontroverted affidavit filed by the appellant showed that at the hearing in the respondent court the
president sat at a table with some thirteen other persons, nine of whom were apparently not members of
the court.

HOLDING

Harris J.: “It appears from an affidavit filed by the appellant in the present case, which has not been
controverted, that at the hearing in the court below the president of the court sat at a table with some
thirteen other persons, most of whom joined in the discussion relative to the appellant‟s application, and
that at the conclusion of the discussion the president called for a vote against the application and four
persons raised their hands in support whereupon he announced that the court had unanimously decided
not to grant the application. From this it would seem that some nine of the persons seated around the
table were not members of the court. This arrangement, it needs hardly be stated, was entirely irregular.
Licensing courts are not mere executive bodies but are courts from which an appeal lies directly to this
court and they must be conducted in a manner appropriate to judicial tribunals. This requires that the
members shall sit apart from all other persons present, and that, except for the taking of evidence from
the witnesses, noting the submissions of the parties and, if necessary, conferring with their registrar or
 Taremwa—Administrative Law Semester II Notes
clerk, they shall not discuss the matter with any other person until their decision shall have been
pronounced.”

iii) Where the body sits without quorum.

GULLAMHUSSEIN SUNDERJI VIRJI v PUNJA LILA AND ANOTHER

[1959] 1 EA 734

FACTS

From the beginning of his tenancy the appellant had used certain premises both for living accommodation
for himself and his family and also for a shop. The initial rent was Shs. 42/50 per month but in 1952 the
standard rent was fixed at Shs. 70/25 per month. In 1957 when business premises were decontrolled the
appellant after being asked to vacate agreed instead to pay Shs. 200/- per month rent. The appellant paid
this increased rent until March, 1957, when he applied to the Rent Restriction Board for determination of
the standard rent and for an order for refund of any rent in excess of the standard rent paid by him.
Although the hearing of the application started before a properly constituted quorum of the board
pursuant to s. 6.(2) of the Rent Restriction Ordinance, the chairman alone inspected the premises and
gave his decision. On appeal it was submitted that the chairman sitting alone had no jurisdiction to decide
the application and that he erred in holding that the main user of the premises was that of a shop.

HOLDING

The Chairman of the Dar-es-Salaam Rent Restriction Board sitting alone had no power to order a refund
of excess rent paid and had no power to hear and determine the application.

iv) Where there is wrongful delegation of authority.

Delegation is very common in administrative law and practice because it is practically impossible for a
senior public officer to execute all his prescribed responsibilities personally.

1. Where a public officer is given a discretionary power, ordinarily, he must exercise the discretion
personally because that is a matter of judgment and it is his judgment that has been relied on.

2. There is a general principle that when an authority delegates its power to a lower officer, he cannot in
turn sub-delegate that power (delegatus non potest delegare).

- SAMUEL KENNETH ODENDAAL v GRAY

FACTS

The Land Transfer Ordinance provided that to transfer crown land, one had to have the consent of the
governor. The governor had delegated the power of giving consent to the commissioner for lands, who
purported to authorize a subordinate officer (registrar of titles) to issue those consents.

HOLDING

It was held that the commissioner could not sub-delegate that power.
 Taremwa—Administrative Law Semester II Notes
REMTULIA GULIMANI v R

FACTS

Under the Cotton Ordinance, the government was entitled to issue rules requiring cotton planters to
uproot, burn and destroy the cotton plants of an earlier season in time and preparation for the next
planting. The governor delegated his powers to the director of agriculture, who enacted bye-laws setting
timelines within which farmers had to uproot and burn cotton crops. Gulimani breached the bye-laws and
as arrested and prosecuted. He challenged the actions.

HOLDING

It was held that the governor did not have the powers to make these bye-laws anyway and he could not
delegate powers he did not have in the first place.
 Taremwa—Administrative Law Semester II Notes
B. IRRATIONALITY.

The most common situation of irrationality is where an administrative authority is seized with discretionary
power and he or it acts in abuse of that power. Discretionary power means that the administrator is given
a choice to act or not to act in a given way. Since it is up to him to act or not to act, the question is
whether he can be held culpable for acting one way or the other.

NB: Statutory provisions conferring discretionary authority do so by using words like “If the minister
deems fit…, “the committee may…”, “the board shall…if it so wishes…” or “the commissioner shall, in his
discretion…”

NAZARALI PANJWANI v KAMPALA DISTRICT LAND BOARD

HOLDING

Justice Remy Kasule stated that irrationality arises if the decision made/taken is so outrageous in its
defiance of logic or acceptable standards of morality that no reasonable person would take it.

AMURON DOROTHY v LAW DEVELOPMENT CENTRE

HOLDING

Justice Stephen Musota stated that four questions had to be asked in order for an action of judicial
review on the ground of irrationality to fail and the onus to prove that these conditions had been met was
on the administrative body.

1. Is the public body‟s objective legitimate?

2. Is the measure taken by that body suitable for achieving that objective?
3. Is it necessary in the sense of being the least intrusive means of achieving the aim?
4. Does the end justify the means overall?

There is no such thing as absolute discretion. When an administrative authority is given discretionary
power, such power must still be exercised judiciously and not arbitrarily, not capriciously. Discretionary
power must be exercised in accordance with the law. In particular, it must be exercised within the
confines set by the enabling Act, that is, the law conferring that power. Even if the law does not expressly
set any limits, discretionary power must be exercised only for purposes of achieving the objects of the
enabling law.

Discretionary power deals with:

i) Whether an act can be done.

ii) When the act can be done.
iii) How the act is to be done.
 Taremwa—Administrative Law Semester II Notes
Why do laws give administrators discretionary power?

This is because statutory law cannot envisage all possible situations that may arise and change in the
circumstances of the administrators.

R v THAMES MAGISTRATES’ COURT, EX PARTE GREENBAUM

[1957] LGR 129

FACTS

The case concerned two street traders, Mr. Gritzman and Mr. Greenbaum, who were having conflict over
a vacant pitch. The Local Council considered all the applications and eventually they decided on Mr.
Greenbaum. He was a newcomer while Mr. Gritzman was an old trader who had been working his way
up. Mr. Gritzman thereupon went to the Magistrate and while he could not appeal against the granting of
a licence to Mr. Greenbaum, he appealed on grounds that he wasn‟t offered a licence, yet in fact, he was.
The Magistrate held that the licence for the vacant pitch was wrongly issued to Mr. Greenbaum and
should be issued to Mr. Gritzman instead.

HOLDING

On appeal, it was held that the Magistrate‟s Court could not interfere with the decision arrived at by the
discretion of the Local Council.

Discretionary power is prone to abuse by the administrative authority. It is therefore necessary to control it
(to enable the courts to check its excesses).

Over the years, some guidelines have been developed to provide guidance on when a court may interfere
in the exercise of discretionary power.

a) When discretion is exercised taking into account irrelevant considerations.

b) When it is exercised for an improper purpose.
c) When the administrator acts unreasonably.
d) When the administrator acts in bad faith.
e) Where he acts without giving reasons.
f) When he breaches the rules of natural justice.
g) When he acts with negligence.
h) When he acts without evidence.
i) Where he fails to take into account a law limiting the discretion.
 Taremwa—Administrative Law Semester II Notes
a) Irrelevant Considerations

BREEN v AMALGAMATED ENGINEERING UNION

[1971] 2 QB 175

FACTS

The plaintiff was elected by his fellow workers as their shop steward for the coming year. The district
committee, which was supposed to approve the election, met in the absence of the plaintiff and refused to
accept his election. The plaintiff wrote to the secretary protesting the decision (no reasons had been
given) and asking the committee to reconsider. The committee stuck by their previous decision and the
secretary informed the plaintiff of the reasons. One of the reasons was misappropriation of funds, which
was false. The plaintiff brought an action, and demanded damages. The trial judge held that the
committee‟s decision was an act of their discretion and thus it was not obliged to act in accordance with
the principles of natural justice.

HOLDING

Lord Denning MR, in allowing the appeal, held that discretion is never unfettered and must be exercised
according to law.

ASSOCIATED PROVINCIAL PICTURES LTD v WEDNESBURY CORPORATION

[1948] 1 KB 223

HOLDING

It was held that one begins by looking at the enabling law and if it prescribes the considerations to be
taken into account, then only those must be taken into account in making the decision. If the decision-
maker considers factors other than those prescribed, then the decision is amenable to judicial review.

RE: AN APPLICATION OF BUKOBA GYMKHANA CLUB

FACTS

The club had operated for 30 years. Then, it applied to renew its annual license. The application was
rejected on the ground that the club‟s admission criteria made it virtually impossible for Africans to join. It

HOLDING

It was held that the club‟s admissions rules were not part of the considerations to be taken into account in
renewing the license.
 Taremwa—Administrative Law Semester II Notes
FERNANDEZ v KERICHO LIQUOR LICENSING BOARD

[1968] EA 640

FACTS

The applicant applied for a liquor license. The application was rejected on the ground that he was a non-
citizen.

HOLDING

It was held that citizenship was not a criteria for granting a license, therefore the board took into account
an irrelevant consideration.

NB: Article 21 of the Constitution (on Equality and Freedom from Discrimination) lists some of the
considerations, which in general are considered irrelevant. The article makes room for affirmative action
which, if properly justified, will be permissible.

b) Improper Purposes

The administrator must properly appreciate the purpose for which a discretionary power is granted and
the discretion can only be exercised for that purpose. It does not matter how well-intentioned the
administrator is if he exercises the power for the purpose other than that for which it was granted; the
decision cannot stand.

SYDNEY MUNICIPAL COUNCIL v CAMPBELL

FACTS

The municipal council authorities were granted powers to acquire land in the municipality for purposes of
redesigning the city. They acquired land with a view of hoarding it and selling it at a profit after some
years.

HOLDING

It was held that they exercised their discretion in an improper manner.

ROBERTS v HOPWOOD

[1925] AC 578

FACTS

An administrative authority was given statutory powers to determine wage levels. They used that power to
drastically increase the wages of female staff only, with the aim of achieving equal pay. The decision was
challenged.
 Taremwa—Administrative Law Semester II Notes
HOLDING

It was held that the power had been misapplied to achieve socialist ideology and gender parity, which
were not the purposes for which the power was granted. In light of the exceptions under Article 21, it is
doubtful whether this case would be good law in Uganda.

c) Unreasonableness.

Enabling statutes sometimes do not bother to state that discretionary power shall be exercised
reasonably. Even when such is the case, the law presumes that the administrator will exercise the power
reasonably.

PADFIELD v MINISTER OF AGRICULTURE

[1968] UKHL 1

FACTS

The statute provided that “If the minister deems fit…” The Minister refused to put in place the board and
the decision was challenged.

HOLDING

It was held that the provision must be read as if it stated “If the minister reasonably deems fit…”

NB: The test of reasonableness is the test of what an officer placed in such a position would be expected
to do. Court will consider things like what options were available, the cost of one decision as opposed to
another, whether the administrator acted impartially, whether they considered things like culture, religious
sentiments and feelings, convenience, etc. Above all, the decision must be unambiguous.

Re HAMITE

FACTS

A bye-law was made, which provided that no person shall cause a disturbance so as to be a nuisance to
the residents or travelers.

HOLDING

It was held that the byelaw was so ambiguous as to be meaningless and was therefore incapable of being
enforced.
 Taremwa—Administrative Law Semester II Notes
d) Bad Faith

In most cases, the administrator may not act with provable dishonesty, but it may be possible to argue
that the circumstances point to the fact that he acted in bad faith. It is normally inferred from the conduct
of the administrator.

WESTMINSTER CORPORATION v LONDON AND NORTHWESTERN RAILWAY COMPANY

HOLDING

A judge called Hogan Williams held that putting up a urinal right in front of a gentleman‟s house could not
have been an exercise of good faith.

NB: In some few situations, the statute may expressly require good faith e.g. in Roberts v Hopwood, the
law specifically stated that “The board may bona fide…”

e) Failure to give reasons.

The general rule is that there is no duty to give reasons in administrative decisions. However, in Breen v
Amalgamated Engineering Union, Lord Denning stated that giving reasons for one‟s decisions is one of
the fundamentals of good administration.

Considering Article 42 of the Constitution, which requires that persons appearing before administrative
authorities be treated fairly and justly, can it be said that a person was ever treated justly, especially when
the reasons for the decision was against them?

NB: In Breen v Amalgamated Engineering Union, Lord Denning stated that, “Then comes the problem:
ought a body, statutory or domestic, to give reasons for its decision or to give the person concerned a
chance to be heard? Not always, but sometimes. It all depends on what is fair in the circumstances. If a
man seeks a privilege to which he has no particular claim…then he can be turned away without a word.”

f) Failure to observe the rules of natural justice.

If it is shown that the administrative authority stood to personally benefit from the decision, those
negatively affected by it will challenge the decision. A person who expects to benefit is expected to
recuse himself. The test is the test of bias, and the court considers not just whether there was bias in fact,
but whether there was a reasonable possibility of bias. They do not have to prove that in fact, the
administrator acted with bias; the test is whether reasonable persons, looking at the circumstances as a
whole, were likely to conclude that you may have been biased.

NB: Consider Libyan Arab Bank v Adam Vasiliadis, Odoki, JSC‟s judgment and Re: An application
for Recusal of Owiny-Dollo, CJ by Male Mabirizi Kiwanuka, Supreme Court Misc. Application No. 3 of
2021

The second aspect of natural justice is that no person shall be condemned unheard – audi alterum
partem. This is now enshrined in Article 28 and also Article 42.
 Taremwa—Administrative Law Semester II Notes
ANEBRIT ASLUM v AG

HOLDING

Katusi, J held that the report of the commission of inquiry into the URA was written without the applicant
being given a hearing and yet it made findings that were prejudicial to her. The judge ordered that all
references to her be struck out of the report and she could not be prosecuted on the basis of those
findings.

NB: Under old English law, the position was that only judicial bodies are under a duty to grant parties a
hearing before a decision is made affecting them. Administrative bodies are not obligated to give a
hearing before making a decision. That unfortunate position reached its climax in Nakuda Ali v Jayrtyne
– the applicant, of Pakistani ancestry applied for a textile trading license, and without giving any reason,
the application was rejected. Court held that there was no need to give a hearing. It was not until 1964
when the House of Lords reversed it in Ridge v Baldwin, where the chief constable of Brighton was
dismissed without a hearing. The police authority quoted Nakuda Ali. The House of Lords held that it does
not matter whether the body is judicial or administrative; if its decision affects the rights of the individual, it
cannot condemn him unheard.
 Taremwa—Administrative Law Semester II Notes
C. PROCEDURAL IMPROPRIETY.

NB: This is also known as procedural ultra vires.

The laws that prescribe decision-making powers often prescribe the procedure for making those
decisions. Where that is the case, the procedure must be complied with. If one is to terminate the
services of a public servant, the grounds must arise; he must be given notice of such and must be
afforded a reasonable opportunity to defend himself. Once that is done, the court cannot go into whether
the decision was harsh.

Generally, decision-making powers in public administration involve several steps:

1. Consultation
2. Antecedent publication
3. The decision
4. Approval
5. Posterior publication

1. Consultation

The main purpose of consultation is so that the persons to be affected by the decision will own it and
therefore support it, having been involved in its making. Consultation can also help enrich the decision
through their input. Therefore, it is always important to identify the stakeholders for every decision and
involve them as much as possible in the making of that decision. This consultation must be guided. It is
desirable even where it is not mandatory under law.

COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS v MINISTER FOR THE CIVIL SERVICE

[1984] UKHL 9

FACTS

The employees of the Government Communications Headquarters (GCHQ) had a right to belong to trade
unions and most of them did. However, there were numerous accounts of industrial action on government
agencies, including GCHQ. There were attempts to dissuade them but they failed. The Minister for Civil
Service issued an oral instruction to the effect that the terms and conditions of civil servants at GCHQ
exclude membership of any trade union other than a departmental staff association approved by the
director of GCHQ. The instruction was issued without prior consultation and the appellants sought judicial
review for a declaration that the Minister had acted unfairly in removing their fundamental right to belong
to a trade union. The trial judge granted their application but the Court of Appeal overturned this decision
and allowed the Minister‟s appeal on grounds of national security.

HOLDING

It was held that the Minister‟s failure to consult the GCHQ staff entitled the appellants to judicial review of
the Minister‟s instruction.
 Taremwa—Administrative Law Semester II Notes
NB: The House of Lords then held that once the Minister had produced evidence that her decision not to
consult the staff was taken for reasons of national security, that would override their right to judicial
review.

2. Antecedent publication.

Before a decision is made, it is necessary that one publicize that they intend to make the decision and the
content of that intended decision. By doing so, the administrator is inviting the stakeholders to express
their approval of or objection against the intended measure. The requirement of publication is either a
creature of existing law or may arise from practice.

NB: Schedule 3 to the Local Governments Act requires that before bye-laws are passed by local
governments, a draft of the intended bye-law should be displayed at a prominent place like a noticeboard
at least 14 days before the council is to sit to consider the bye-law.

3. The decision.

The person in charge should ensure that the decision-making forum is duly constituted by persons
entitled to attend and the right procedure at sitting must be followed (as well as quorum).

4. Approval.

Some laws require that when bye-laws are passed, for example, by local governments, they have to be
submitted to the minister for approval. The laws might also require that when a minister passes bye-laws,
he must submit them to cabinet for approval. Finally, whether a decision is by a local government,
minister or other public authority, it may be required to be laid on table, that is, presented before
parliament but for formal approval. This is because the body making the subordinate legislation does so
under powers delegated to it by parliament. Parliament must thus own the decision.

5. Posterior publication.

In order to have the force of law, bye-laws and other delegated legislation needs to be gazetted. (It is
presumed that everyone in the country reads the gazette)
 Taremwa—Administrative Law Semester II Notes
The effect of non-compliance with administrative procedures and in particular, publication.

There is no general rule regarding the effect of failure to follow procedures. It depends on the
circumstances of each specific decision. However, courts have given four guidelines:

1. Whether the resulting decision is void or valid depends on whether the step that was not
taken is a mandatory step or whether it is merely directory or even optional.

Where the enabling act uses words like “shall”, non-compliance has always been held to render the
decision void. Alternatively, where the enabling law uses words like “may” or “if the minister deems fit, he
shall…” in such a case, the failure to take that step is not fatal.

NB: Consider Padfield v Minister of Agriculture; Ssemwogerere v AG (the use of “shall” makes it
mandatory); de Souza v Tanga Town Council, (where the law has laid down a procedure, one cannot
just choose to disregard it).

R v WAKISO ESTATE

(1955) 7 U.L.R 137

FACTS

The accused had been charged with certain contraventions of the Uganda Employment Rules. The rules
which were alleged to have been contravened were purported to have been made under paragraph (1) of
the section 80 of the Employment Ordinance. Section 80 provided that the rules had to be made by the
Governor and then sent to the Legislative Council for approval. However, the rules under which the
accused was charged were not in fact “made” by the Governor before a draft was laid before the
Legislative Council for its approval.

HOLDING

The appeal was dismissed.

Court held: “…the words of the proviso are clear and unambiguous. What is contemplated is that the rules
shall first be „made‟ by the Governor and shall then be submitted to the Legislative Council for its approval
or otherwise, and they shall not come into operation until they are approved either with or without
modification…Until the Rules have been „made‟ by the Governor in the sense that he has signified his
approval of them by signing them, there is nothing which can be laid before the Legislative Council or
brought into operation.”

NB: However, where the decision or action affects or relates to the enjoyment of a fundamental right,
then court is not likely to take kindly to non-compliance and will strike it down.

2. The state of mind of the decision-maker.

An arrogant or wanton disregard of procedure may be punished seriously by court. On the other hand, a
mere oversight may be excused, especially where no drastic consequences have resulted.

3. The court may consider whether there is established practice.

Even if a requirement is not expressly prescribed in law, if the practice has been to observe the
requirement, then its non-observance may affect the validity of the decision.
 Taremwa—Administrative Law Semester II Notes
R v MWANGI

FACTS

The defendant was prosecuted for overcharging for a haircut contrary to town council byelaws. Unlike all
previous byelaws, this one had not been gazetted.

HOLDING

The court held that they could not prosecute a person under a law had not been published, unlike
previous byelaws.