Bigirwa & Anor v Kaguta Museveni (Misc. Cause No. 0063 of 2016) [2016] UGHCCD 18 (9 May 2016)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL DIVISION

MISC. CAUSE NO. 63 OF 2016

1. BIGIRWA MOSES

2. HAKIM KIZZA ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS

VERSUS

YOWERI KAGUTA MUSEVENI :::::::::::::::::::::::::::: RESPONDENT

BEFORE: HON. JUSTICE STEPHEN MUSOTA

RULING

This is an application for an interim order stopping the respondent from swearing in as President of Uganda. That the respondent be subjected to medical and scientific examination to calculate the structural bones to cast away any doubt the respondent’s age.

The application is by Notice of Motion under Order 52 Rules 1 and 2 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act and the applicants appear in person. It is supported by the affidavit of Bigirwa Moses.

The respondent is represented by Mr. Kiryowa Kiwanuka and Mr. Sebuwufu Usaama.

At the commencement of the hearing of this application Mr. Kiryowa Kiwanuka learned counsel for the respondent raised preliminary points of law against the application and sought for its summary dismissal. The respondents asked that since they are lay people, this application be maintained as it is of national importance.

I have considered the application and the submissions by respective counsel.

I will without hesitation uphold the preliminary objections raised by Mr. Kiryowa Kiwanuka because of the following reasons:

1. Temporary injunctions are supposed to be filed by way of Chamber Summons and not Notice of Motion. This however would not have been a bar for this court to entertain the applicant’s case but the nature of the “cause of action” cannot save the application.

2. Interlocutory applications cannot be brought as substantive causes for they are by their nature equitable reliefs and can only issue if there is on record a main application for a temporary injunction which is not the case here. Interlocutory applications are intended to preserve a given status quo. An interim application cannot stand alone as a substantive cause.

3. For a main application to be recognized by court it must arise from a head suit or cause and one of whose prayers must be for permanent injunction. This is not the case here.

1. As admitted by the applicants, the respondent is the President of the Republic of Uganda. Under Article 98 (4) of the Constitution of the Republic of Uganda it is promulgated that:

*“while holding office, the president shall not be liable to proceedings in any court”.*

Therefore the respondent cannot be subjected to these proceedings.

1. The only exception is when he/she doubles as a candidate in an election. In that case he/she is sued as a candidate and the only court with jurisdiction is the Supreme Court.

2. I must note that the validity of the recent elections is no longer in question since the Supreme Court recently pronounced itself on the matter. It is no longer in issue. As rightly submitted by Mr. Kiryowa the constitution is very clear on issues of age or any other complaints against the candidate for president. The same is echoed in the Presidential Elections Act. These issues ought to have been raised and dealt with in the presidential election petition.

3. This is a case with no merit and does not meet the threshold which can cause this court to waste its valuable time to entertain. It is in fact an abuse of court process.

For being frivolous, vexatious and an abuse of the process of this court, the same will be summarily dismissed with costs for being lay in law is not a license to abuse the process of court.

I so order.

Stephen Musota

Judge

09.05.2016