Charles Barugahare v Makerere University and 3 others

147 of 2020

High Court of Uganda

Ssekaana Musa, J

September 30, 2022

Reported by Faith Wanjiku and Bonface Nyamweya

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Civil procedures-judicial review- application for judicial review as the appropriate remedy- what were the conditions for judicial review to be granted- Judicature Judicial Review (Amendment) Rules, 2019, rule 5; Universities and Other Tertiary Institutions Act, 2001, sections 50 and 57.

Civil practice and procedure-judicial review- application for judicial review as the appropriate remedy- where the claimant had failed to exhaust other procedural remedies before approaching the court for the remedy of judicial review- whether the application had exhausted all other available remedies before approaching the court, hence it being competently before the court- Judicature Judicial Review (Amendment) Rules, 2019, rule 5; Universities and Other Tertiary Institutions Act, sections 50 and 57.

Brief facts

The 2nd respondent wrote to the permanent secretary/secretary to the treasury to appoint the 3rd respondent as the accounting officer of the 1st respondent effective July 1, 2020 and the latter complied with his appointing letter dated June 8, 2020. The 2nd respondent on June 29, 2020 moved to force the applicant on what he called forced leave which in effect disguised as removal from office and purported to create a management committee outside the law to investigate non-existing allegations personally concocted by the 2nd respondent.

The respondents prejudicially proceeded with inherent bias and outright prejudice targeting to illegally give out the applicant’s job, duties and responsibilities to his deputy, the 3rd respondent and constructively remove him from his statutory office without cause or according him a hearing. The applicant was being victimized by the 2nd respondent for having performed his duties and refusing to bow to pressures to approve questionable expenditures, consents, contracts and decisions that would have costed the 1st respondent huge sums of money.

The respondents took extreme harsh decision without taking into consideration the applicant’s exemplary outstanding work for the university, never gave him written notice including grounds for his personal removal and asking him to respond in writing, nor made arrangements for him to appear before the university staff tribunal or appointments board with respect to the matter. The applicant was never subjected to any disciplinary process within the 1st respondent’s organs as per his legitimate expectation before the impugned decision was taken, which denied him a remedy in the face of the unfair and unjust treatment hence he sought judicial review at the High Court as the most appropriate remedy.

Issues:

i.        What were the conditions for judicial review to be granted?

ii.        Whether the application had exhausted all other available remedies before approaching the court, hence competently before the court.

Relevant provisions of the law

Judicature Judicial Review (Amendment) Rules, 2019

Rule 5

The court shall in handling applications for judicial review, satisfy itself of the following;

a) That the Application is amenable for judicial review; b) That the aggrieved person has exhausted the existing remedies available within the public body or under the law. Universities and Other Tertiary Institutions Act,

2001

Section 50

(1)There shall be a Committee of the University Council to be known as the Appointments Board.

(2)The Appointments Board shall consist of nine members under section 43. (3)The Appointments Board shall, except where provided otherwise under this Act, be responsible to the University Council for the appointment, promotion, removal from service and discipline of all officers and staff of the academic and administrative service of the University, as may be determined by the University Council.

Section 57

(1)A member of staff may appeal to the University Staff tribunal against a decision of the Appointments Board within fourteen days after being notified of the decision.

(3)A member of staff aggrieved by the decision of the Tribunal under subsection (2) may within 30 days from the date he or she was notified of the Tribunal’s decision apply to the High Court for judicial review.

Held

  1. Judicial review claims should be refused where the claimant had failed to exhaust other procedural remedies. There was growing recognition of the importance of alternative dispute resolution in civil litigation generally. The nature of the dispute of the applicant had a substitute remedy provided under the Universities and Other Tertiary Institutions Act which established a staff tribunal to resolve any disputes related to employment matters of the University.
  2. It was a well-established proposition that where a right or liability was created by statute which gave a special remedy for enforcing the same, the remedy provided by statute had to be availed in the first instance. There were various reasons why legislation could create an avenue of redress into which the court could divert challenges including a desire to make access to justice available more locally, a wish to prevent court becoming overburdened with cases, the fact that the tribunal or other specialist body could have more expertise in the subject of the claim than court.
  3. The most straightforward reason in that matter was the fact that the Universities and Other Tertiaries Institutions Act provided an appeal to university staff tribunal. The available statutory appeal process was a clear substitute for judicial review and essentially judicial review was used where there was no statutory right of appeal. The powers of an appeal body or tribunal would often be at least as extensive as those in judicial review.
  4. There could be no constitutional or practical objection to the High Court refusing to hear an application for judicial review where there was a statutory appeal to a tribunal or a court. To hold otherwise would risk subverting parliament’s intention in creating such appeals to tribunals.
  5. A member of staff who had an available alternate procedure to address his grievance rather than stampeding court prematurely in order to stop the disciplinary process in total disregard of an established procedure of resolving the dispute internally was not consistent with the Universities and Other Tertiaries Institutions Act.
  6. The actions of the applicant could indeed be seen as an act of forum shopping. That indeed added to the problem of case backlog in the system. Once the law had created statutory procedure to address a grievance, then it was deemed mandatory to exhaust that alternate procedure before trying to seek the court’s discretion in availing the same remedies under judicial review.
  7. It was important that bodies created under any legislation by parliament were given an opportunity to operate and resolve their disputes since they possessed better knowledge, skill and expertise in such areas. The university staff tribunal was headed by a retired judge of the High Court with a wealth of experience and 7 other members representing the different interest groups or categories.
  8. The application was incompetently before the court for failing to exhaust the existing available remedies under the Employment Act or the Universities and Other Tertiary Institutions Act. Under Rule 7A of the Judicature (Judicial Review) (Amendments) Rules,2019, it was incumbent upon the court seized with the matter to first ascertain whether the application was amenable to judicial review or establish whether the application was competently before the court.

Application dismissed with costs.

Relevance to Kenyan jurisprudence

The Constitution of Kenya, 2010 in article 23 illuminates about the authority of courts to uphold and enforce the Bill of Rights when it states that the High Court has jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Precisely, sub-article (3)(f) claims that in any proceedings brought under article 22, a court may grant appropriate relief, including an order of judicial review.

The Fair Administrative Action Act of 2015 in section 9 elaborates on judicial review procedure as it explicates that:

 (1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.

(2) The High Court or a subordinate court under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. (3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1). (4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
The Employment Act of 2007 [Rev 2022] in part xii talks of dispute settlement procedure between employers and employees. Section 63 of the Universities Act of 2012 [Rev 2020] further emphasizes that:

 1) In the performance of its functions, a University Council shall uphold the rights of any person who is likely to be affected, and shall—

(a) inform the person concerned of the nature of the allegations made against that person; (b) afford that person adequate time to prepare and present a defence; and (c) afford the person the opportunity of being heard in person.

In the case of Republic v Public Procurement Administrative Review Board & another Ex parte Intertek Testing Services (EA) Pty Limited & Authentix Inc; Accounting Officer, Energy and Petroleum Regulatory Authority & another [2022] eKLR, the High Court dismissed the application holding that the court was entitled to take into account the nature of the process against which judicial review was sought and satisfy itself that there was reasonable basis to justify the orders sought.

On the other hand, the court in Catherine Mwihaki Ngambi v International Leadership University [2022] eKLR dismissed the petition holding that the application of the doctrine of exhaustion in the circumstances of that case justified its exemption because the respondent lacked a clear dispute resolution mechanism to appropriately address the petitioner’s concerns.

This case is therefore relevant to the Kenyan jurisprudence as it expands on the grounds for granting or denying a judicial review when it holds that once the law has created a statutory procedure to address a grievance, then it is deemed mandatory to exhaust that alternate procedure before trying to seek the courts discretion in availing the same remedies under judicial review.