5 THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)

MISC. APPLICATION NO. 511 OF 2022

(ARISING OUT OF MISC. APPLICATION NO. 510 OF 2022)

10 (ARISING OUT OF MISC. CAUSE NO. 198 OF 2022)

1. MUHWEZI JOSHUA
2. NAMBASSA SHAMIM
3. LUYOMBYA KELVIN JOSHUA
4. KABUULWA MUZAFALUH :::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS

15 VERSUS

1. MAKERERE UNIVERSITY COUNCIL

2. LORNA MAGARA
3. PROF. BARNABAS NAWANGWE::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS
BEFORE: HON. JUSTICE ESTA NAMBAYO

20 RULING

Muhwezi Joshua, Nambassa Shamim, Luyombya Kelvin Joshua and Kabuulwa Muzafaluh
(hereinafter referred to as the 1st, 2nd, 3rd and 4th Applicants respectively) filed this
application under S.98 of the Civil Procedure Act and Order 52 Rules 1 & 3 of the
CPR, against Makerere University Council, Lorna Magala and Prof. Barnabas Nawangwe
25 (hereinafter referred to as the 1st, 2nd and 3rd Respondents respectively), seeking for
orders that: -

1. An interim Order does issue restraining the Respondents, their servants,

agents or any persons acting for them from continuous enforcement of the
impugned suspension orders or holding meetings in relation to the suspension

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30 orders of Makerere University Students’ Leadership, passing resolutions in
relation to the students’ leadership and implementing them, holding meetings
and passing resolutions in relation to reviewing and/or amending the
Makerere University Students’ Guild Constitution until the final determination
of the Main Application.

35 2. Costs of this application be provided for.

The grounds of this application are set out in the affidavit in support of the application sworn
by Muhwezi Joshua but briefly are: -

i. That the Applicants have filed a main cause and a main application which
are still pending before this court and the same have a high likelihood of
40 success.
ii. The Respondents, their agents, servants or persons acting for them have
suspended the 88th Students Guild elections, Student’s Guild, caretaker
government and senior common room which is/was unfair, illegal and
contrary to the 1995 Constitution, the Universities and Other Tertiary
45 Institutions Act, 2001 and the Makerere University Student’s Guild
Constitution as amended.
iii. The Respondents, their agents, servants or persons acting for them have
suspended a one Namwoza Sulaiman – the Speaker for Lumumba Hall from
the University which is/was unfair, illegal and contrary to the 1995
50 Constitution, the Universities and Other Tertiary Institutions Act, 2001 and
the Makerere University Student’s Guild Constitution as amended.
iv. The Respondents, their agents, servants or persons acting for them have
commenced the process of reviewing and amending the Makerere University
Student’s Guild Constitution without involving the students’ community
55 which is unfair, illegal and contrary to the 1995 Constitution, the Universities

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 and Other Tertiary Institutions Act, 2001 and the Makerere University
Student’s Guild Constitution as amended.
v. The Respondents, their agents, servants or persons acting for them have
commenced proceedings and made reports, recommendations and/or
60 resolutions to amend the Makerere University Student’s Guild Constitution
which is/was unfair, illegal and contrary to the 1995 Constitution, the
Universities and Other Tertiary Institutions Act, 2001 and the Makerere
University Student’s Guild Constitution as amended.
vi. The Respondents, their agents, servants or persons acting for them are
65 calling and/or holding emergency, special meetings, passing resolutions and
implementing them in relation to the students’ leadership without involving
the students’ community which is/was unfair, illegal and contrary to the
1995 Constitution, the Universities and Other Tertiary Institutions Act, 2001
and the Makerere University Student’s Guild Constitution as amended.
70 vii. The Respondents, their agents, servants or persons acting for them have
intentionally failed and/or refused to commence, conduct and conclude the
process of the guild elections in accordance with the prevailing laws.
viii. The Applicants’ main cause shall be rendered mute and nugatory if the
Respondents are not restrained.
75 ix. The Applicants shall suffer irreparable injury unless the Respondents are
restrained.
x. The Respondents shall not be irreparably jeopardized in any way with the
restraining orders being sought
xi. The balance of convenience is in favour of granting the interim injunction
80 against the Respondents, their agents, servants or persons acting for them.
xii. It is in the interest of justice that an interim injunction does issue against
the Respondents, their agents, servants or persons acting for them, until the
hearing and determination of the main application.

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 The Respondents filed an affidavit in reply opposing this application.

85 Back ground to the application.

The brief background to this application is that on the 1th July, 2022, while students at the
1st Respondent were engaging in last minute campaigns ahead of their 88 th Guild Leadership
Elections, a student from Uganda Christian University died after an unidentified assailant cut

his throat.

90 Following the incident, the 2nd Respondent issued a communication suspending the elections
indefinitely. The students Guild, Care taker Government and Senior Common Room were
also suspended. The 1st Respondent then held an emergency meeting on the 15 th July, 2022
and came up with several resolutions. It is the Applicants claim that they are aggrieved by
the procedure that the Respondents used to arrive at the said resolutions. The Applicants
95 have filed applications for Judicial Review and temporary injunction before this court and
now seek for interim orders pending the disposal of the application for the temporary
Injunction.

Legal representation

Learned Counsel Turyamusiime Geofrey represents the Applicants while Learned Counsel
100 Hudson Musoke together with Esther Kabinga are for the Respondents. Counsel for the
parties have filed written submissions as directed by court.

Preliminary Objection

In his submissions, Counsel for the Applicants raised a preliminary objection on grounds that
the affidavit in reply affirmed by Yusuf Kiranda, Secretary to the 1st Respondent’s Council,
105 was defective as it is deponed for the other Respondents without their authorization. He
relied on Order 1 rule 12 and the case of Lena Nakalema Binaisa and 3 others –v- Mucunguzi

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 Meyers MA No. 469 of 2013 and prayed that the same be struck off the court record so that
the Applicants’ prayers be granted.

In reply Counsel for the Respondents relied on Section 23 of the Universities and Other
110 Tertiary Institutions Act, 2001, and explained that the 2nd and 3rd Respondents are Public
Officers of the 1st Respondent who cannot be sued for acts committed in their official capacity
while conducting a public duty. That under The Macro and Micro Structures of the
Administrative and Support Units of the University passed and gazetted by Makerere
University Council on the 28th November 2018, the University Secretary is responsible for all
115 legal matters of the University and therefore, he was the right person to swear an affidavit
on behalf of the Respondents.

Analysis

Under S. 33(2) of the University and Other Tertiary Institutions Act, 2001, the University
Secretary is responsible for the general administration of the University. Counsel for the
120 Respondents explained to court that the University Secretary is mandated under The Macro
and Micro Structures of the Administrative and Support Units of the University to answer to
all legal matters of the University. This has not been challenged by the Applicants and I
would find no reason to doubt it. This would therefore mean that it was proper for Yusuf
Kiranda, the University Secretary, to answer to this application on behalf of all the
125 Respondents. However, if the Applicants intended to file a suit against the 2 nd and 3rd
Respondents in their individual capacity, they should have demonstrated to this Court’s
satisfaction that the said officers are being sued in their personal capacity and that they had
a clear connection in individual capacity to the violations alleged. The violations must have
been committed outside their official mandate. In this case, the Applicants have not
130 demonstrated in any way the liability of the 2nd and 3rd Respondents in their individual
capacity outside their mandate to the alleged violations.

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 Moreover, excluding the 2nd and 3rd Respondents doesn’t vitiate the Respondents answer to
the application. I therefore find no merit in the Applicants’ preliminary objection which I do
hereby over rule and proceed to address the application on its merits.

135 The law on interim orders.

Section 38 (1) of the Judicature Act, mandates the High Court to grant injunctions to restrain
any person from doing an act as may be specified by the High Court.

In the case of Daniel Jakisa & 2 others –v- Kyambogo University MA No. 549 of 2013,
Court noted that;
140 “an injunction is a Court order requiring an individual to do or omit doing a specific action.
It is an extra -ordinary remedy that courts utilize in special cases where preservation of the
Status Quo or taking some specific action is required in order to prevent possible injustice.
They are issued early in a law suit to maintain the status quo by preventing a Defendant
from becoming insolvent or to stop the Defendant from continuing his or her allegedly
145 harmful actions.”
Philip Pettit in his book Equity and the Law of Trusts, 4th Edition at page 407 while giving
the primary objective of an interlocutory injunction and quoting from the case of American
Cyanimide Company -v- Ethicon Ltd [1969] 2 ALLER 576, noted that;

“the object of an interlocutory injunction is to protect the plaintiff against injury by a violation
150 of his right which he could not be adequately compensated in damages recoverable in the
action, if the uncertainty was resolved in his favour at the trial.”

In Giuliano Gariggio–v- Calaudio Casadio, Civil Application No. 3 of 2013, Court noted
that;
“The granting of interim orders is meant to help the parties to preserve the status quo and
155 then have the main issues between them determined.”

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 Status quo was defined in the case of Viola Ojok and Anor –v- Andrew Ojok and Anor
MA No.179 of 2007, as;
“the actual state of affairs on the suit premises prior to the filing of the suit”
In American Cynamid Co –v- Ethicon Ltd (1975) AC 396 at pp 406 and 408, Lord Diplock,
160 noted that: -
“The object of the interlocutory injunction is to protect the plaintiff against injury by violation
of his right for which he could not be adequately compensated in damages recoverable in
the action if the uncertainty were resolved in his favour at the trial … if damages in the
measure recoverable at common law would be adequate remedy and the defendant would
165 be in a financial position to pay them, no interlocutory injunction should normally be granted,
however strong the plaintiff’s claim appeared to be at that stage.”
In the case of Hon. Jim Muhwezi –v- the Attorney General and the Inspector General of
Government, MA No. 18 of 2007 Court noted that in applications for interim order, the
Applicant must prove the following: -
170 (i) That there is a prima facie case with a probability of success,
(ii) If the injunction is not granted, the applicant might suffer irreparable loss or injury which
would not adequately be compensated by an award of damages.
(iii) If the court is in doubt on any of the above two principles or on both of them it will
decide the application on the balance of convenience.
175 (i) Prima facie case with a probability of success

As to whether the Applicants have established a prima facie case with a probability of success
in this application, the Applicants contend that the suspension of the Students’ Guild
elections, the Caretaker Government, the Students’ Common room and the appointment of
Select Committee, among others were carried out illegally and as such, in the main suit, they
180 seek for orders of certiorari from this court to quash the decisions and actions of the
Respondents. On the other hand, the Respondents confirm the suspension of the above

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 structures, but insist that the right procedure was followed. The Applicants have filed an
application for Judicial Review where they seek orders of certiorari among others. I find that
the above constitute triable issues with a probability of success. I would therefore answer
185 the above issue in the affirmative.

(ii) Irreparable injury

Counsel for the Applicants submitted that the Respondents are trying to illegally procure the
amendment of the Guild Constitution without involving the students’ community. That if this
application is not granted, the Applicants will lose their entitlement to participation in the
190 amendment of the Guild Constitution and in the physical Guild Elections as provided under
the law. That failure to allow students to participant in the amendment of the Guild
Constitution and participation in the physical Guild Elections amounts to violation of their
Rights and such violation cannot be compensated by payment of damages.

In reply, Counsel for the Respondents submitted that the Student Guild Constitutional Review
195 Commission was established and is implementing its mandate. That annexure “F” to the
affidavit of Yusuf Kiranda, the University Secretary, shows that the Guild Constitutional Review
Commission consists of students, duly elected by fellow students. That there is no
representative of the Respondents on the Guild Constitutional Review Commission. Counsel
explained that the Student Guild Constitutional Review Commission was mandated to ensure
200 that the Guild leadership is elected and installed and that halting the process will
disenfranchise over 40,000 students who will be denied an opportunity to have a student
leadership that articulates students’ issues with the Management of the University. Counsel
pointed out to this court that the Applicants have been involved in gruesome acts against a
legitimate student function/exercise. That the Applicants organized hooligans to steal ballot
205 papers and ballot boxes in two constituents of the College of Humanities and Social Sciences
(CHUSS) and the College of Education and External Studies (CEES). That the Applicants’
hooligans burnt voting materials at Livingstone Hall and the College of Agricultural and

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 Environmental Sciences (CAES) and intimidated students and kept them away from
participating in the electoral process. She emphasized that the Applicants before court did
210 not come to court with clean hands and do not represent the over 40,000 students’
community.

Analysis

The main application in this case is for Judicial Review. The orders sought in the application
include orders of certiorari which has the effect of reversing the decisions made by the
215 Respondents and the entire process declared a nullity, if the application succeeds. In the
case of Jotham Welamondi –v- Chairman of Electoral Commission of Kenya (2002) KLR
486, court noted that;
“Certiorari is designed to prevent abuse of power. The purpose of certiorari is to ensure that
an individual is given fair treatment by the authority to which he is subjected. Its effect when
220 issued is that the order of an inferior court, tribunal or a public authority or other decision
made is quashed. The court will issue it when it is convinced that the decision challenged
was reached without jurisdiction or in excess of jurisdiction in breach of the rules of natural
justice or contrary to the law. When issued certiorari quashes a past decision or act. The
effect of the order of certiorari is to restore the status quo ante which was the situation
225 pertaining before the infringed decision was made.” (underlining is mine for emphasis)
In this case therefore, it is my finding that the Applicants will not suffer irreparable injury if
this application is not granted because the actions complained of can be reversed if the
application for Judicial Review is successful.

(iii) Balance of convenience

230 On this ground, Counsel for the Applicants submitted that the Respondents have no interest
in the subject matter. That they are only trying to illegally procure the amendment of the
Guild Constitution without involving the students who will be affected to their detriment, by
the outcome of the Respondents’ actions. Counsel prayed that this court finds that the

balance of convenience is in favour of the Applicants.

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235 In reply, Counsel for the Respondents submitted that the instant application seeks to halt a
process geared towards putting in place a Student Leadership for the 1 st Respondent which
has over 40,000 students. That the term of the previous Students Guild Government expired
and it was dissolved. That the Caretaker Government that was supervising the Electoral
Commission, and the Electoral Commission are now suspended and the only body in place
240 that is representative of all students and that is currently running the students’ affairs is the
Student Guild Constitutional Review Commission. The Commission is currently undertaking
a process that will culminate into the election of a representative Students Guild Government.
Counsel emphasized that the repercussion of this application if granted will create a vacuum
on matters that regard student leadership and governance. That over 40,000 students will
245 be disenfranchised if they are deprived of the opportunity to elect leaders of their choice as
compared to the four Applicants in this case who do not even represent the over 40,000
students. Counsel prayed that this court finds that the balance of convenience favors the

Respondents and dismisses this application from court with costs.

Analysis

250 Black’s Law Dictionary, 10th Edition, at page 170 defines balance of convenience as;
“a balancing test that courts use to decide whether to issue a preliminary injunction stopping
the defendant’s allegedly infringing or unfair practices, weighing the benefit to the plaintiff
and the public against the burden on the defendant.”
In Gapco (U) Ltd –v- Kaweesa Badru HCMA No. 259 of 2013, court noted that;
255 “balance of convenience literally means that if the risk of doing an injustice is going to make
the applicants suffer, then probably the balance of convenience is favourable to him/her and
the court would most likely be inclined to grant the application.”
In this case, the evidence presented has not shown that the Applicants will suffer
inconvenience if this application is not granted. On the other hand, the Respondents have a
260 community of over 40,000/- who they are responsible for. Counsel for the Respondents
explained to court that they have put in place a Student Guild Constitutional Review

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 Commission which is currently undertaking a process that will culminate into the election of
a representative Students Guilds Government. That the repercussion of this application if
granted will create a vacuum on matters that regard student leadership and governance.
265 That over 40,000 students will be disenfranchised if they are deprived of the opportunity to
elect leaders of their choice as compared to the four Applicants who have not come to court
with clean hands and are not representative of the rest of the students.

Evidence on record does not show that the Applicants are representing the students’
community. It is my view that if court grants this application and later finds that the main
270 application has no merit there will have been unnecessary delay of the process which may
be prejudicial to the other interested parties. In the circumstances, I would find that the
balance of convenience is in favor of the Respondents. I therefore find no merit in this

application which I do hereby dismiss from court with costs.

I so Order

275 Dated, signed and delivered in Kampala on this 25th day of October 2022.

Esta Nambayo

JUDGE

25th/ 10/2022.

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