Joseph Pinytek Ochieno v Uganda People's Congress and Jimmy Akena (Miscellaneous Cause No. 573 of 2025; Miscellaneous Cause No. 89 of 2021) [2025] UGHCCD 101 (25 July 2025)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA

(crvrL DrvrsroN)

MISCE LLAN EOUS APPLICATION........... OF 2lJ25

[Arising out of Miscellaneous Cause No. 573 of 2021] [Arising out of Miscellaneous Cause No. 89 ot 2021]

JOSEPH PINYTEK OCHIENO APPLICANT

VERSUS

1. UGANDA PEOPLE'S CONGRESS

2. JIMMY AKENA RESPONDENTS

BEFORE: HON. LADY JUSTICE ]OYCE KAVUMA

RULING

- lIl This Ruling arises tiom an exparte oral application made by counsel lbr the applicant seeking fbr orders that an interim order be issued restraining the respondents. their agents. senants. or any one acting under their authority fiom convening the delegates conf'erence scheduled tbr 26th July 2025 and or conducting or proceeding rvith the UPC intemal election processes. including the election, and gazettement ofany person as l'r respondent party president until the final determination of Miscellaneous Cause No. 89 of 2021. pending belbre this Court and firrther restraining the 2"d respondent from holding himself out or acting as the I'r respondent's party president. - l2l Counsel lbr the applicant Mr. Katunguka Rodgers fiom M/s JByamukama & Co. Advocates submitted that the applicants believe that there is a real threat since the delegates confbrence is on 26/0712025. Counsel further stated that + the delegates' conlerence would not proceed as planned considering that the Inspector General of police had advised them to re-schedule the said confbrence as they were unable to provide the required security. Counsel contended that despite that advise. the 2"d respondent has gone ahead and

infbrmed the Chairperson LJganda Electoral Commission that the delegates conl'erence will be held virtually.

- t3l According to counsel lbr the applicant one of the main prayers in the substantive application Miscellaneous Cause No. 89 of 2021 is a declaration that the 5tl' respondent (2"d rcspondent now) is unlawtully' holding out as a party president. Counsel stated that s,hcn thc Court ol' Appeal in Usanda People's Consress & Anor Vs Prof Kakonse CACA No. 20 of ²⁰¹⁶ ordered fbr fiesh elections, the 2nd applicant did not participate in the said elections in which Mr. Peter Walubiri emerged the successful candidate. That the applicant being aggrieved liled MC-089-2021 rvhich is pending ruling in this Court. - l4l Counsel stated that on the above premise. the applicant believes that because the 2"d respondent is not a legitimate president ofthe UPC. he should not be allowed to continue running party affairs and also trying to issue oltcial notices calling fbr delegates' confbrence. Counsel concluded his submissions that the main application has a likelihood ofsuccess and this application has been made in good lbith. Counsel prayed that this court grants the exparte interim order as the applicant has demonstrated all exceptional circumstances lbr its grant.

Counsel Fred Busingye liom M/s Katende Ssempebwa & Co Advocates tbr the l'' and 2nd respondents in MC-0089-2021 contended that they do not oppose thc application however counsel stated that the 2nd resident in this matter has on several occasion violated the court's orders and his attempts to call fbr the delegates conf'crence is still in contempt olcourt orders.

Resolution

\$

l5l ^Ihave considered the application tbr interim injunction, the submissions by counsel for the applicant and the authorities relied on. The applicant herein seek fbr an exparte interim order of injunction restraining the respondents fircm holding the Delegates Conf'erence scheduled to commence tomorrow 26th Ju!y.2025.

Order 50 Rule 3A (l) of the CPR (as amended) provides that;

The court shall, in all cases, be./bre granting relieJ lbr an interim order, direct notice of the applicalion lo be given to the opposite parry), except where it appears that the giving of such notice would cause undue delay and that the object of granting the interim relief would tlrcreby be defeated.

Under Sub Rule 2, all applications for interim reliel'shall be inter-parties except firr exceptional circumstances thal may include-/a/ vvhere the matter r.t l/ tll itl tl0lurc b where there is a real tlreat or danper; or (c) where the o lic'ation is nuutc in d 0ilIt phasis ntinel

Sub Rule ³ prolidcs that thc cor.rrt shall onll consitler thc hcaring ol'an application firr interinr relief where there is a pcnding substantivc application with a likelihood of suoccss.

'Ihe above provision olthe law prcsumes that all interim relielb should be heard inter parties. It tbrbids the granting of an e.r parte order ol injunction without notice to the other party. 1'he same rule allorvs tbr an urgent order being granted ex parte in exceptional circumstanccs as stated above.

- 16l It is a cardinal principle of our.ludicial procedure that save in exceptional circumstances every party to a disputc belbre courl fbr hearing must be given notice thereof and opportunity to be heard hefirre court ad.iudicates on the dispute. The court will procced exparte only when it is satislied that proceeding inter parties is likely to delbat the ends oljustice or rvhen the party ,s.ivsn notice lails to avail itsell'ol'the oppo(unity to be heard. Sce the cases of Wilson Mukiibi Vs James Semusambwa SC Civil Aonlication No. 009 of 2003 and Ansah v Ansah ll977l2 All ER ilE at i42 \* - 171 Therefore fbr a court to entertain an exparte application for an interim relief, the applicant must prove that; - l. There is a pending ascertained hearing ofthe substantive application. - 2. The matter is urgent in nature. - 3. There is a real threat or danger that cannot be eliminated by an expeditious hearing ofthe main application.

- 4. The application has been made in good laith and where in doubt in rcspect of lhe above considcrations. then the application will be decided on a balance of convcniencc. Scc Byanyima & 2 Ors Vs Democratic Party & 2 Ors M Miscellaneous Application No. 0410 of 2025 - 18l Regarding the I't clement. there must be a pending ascertained hearing olthc substantive application. It has becn held that an intcrim order ought to be made only in compelling circumstances. to prevent del'eat of .iustice and strictly pending ascertained hearing ol a substantive application. Thus a court hearing an application fbr interim relief must be satistred that there is ^a pending substantive application. See the cases ol Wilson Mukiibi Vs James Semusambwa Sunra. Alcon International Ltd Vs The New Vision Printins and Publishine Co. Ltd and Anor SCCA No. 4 of 2010 and Hwang Suns Industries Vs Taidin Husset ⁿ SCCA No. l9 of2008.

'l'he requirement lirr an ascertained hearing is because of'thc nature ol an exparte interinl order being susceptible to abuse and the lact thal the other party has not been heard.

It is not disputed that the applicant has liled !!!!p!@! an application fbr a temporary injunction against the respondents sceking to restrain the respondents liom conducting delegates' conference. This application has been scheduled lbr hearing tbr 2910'712025 at l0:00 am and therefbre there is ascerlained hearing of the same.

l9l In respect ofthe second elenlent. it has been held that an exparte interim order may be granted lbr reasons ol'extreme urgency and alleged threat belbre hearing of' the substantive application. Vs Electro-Maxx (U) Ltd & Anor H.

'l'he principle therefbre is that ex parle applications fbr injunctions should sparingly be enterlained and when so enlertained there must be credible and weighty evidence to support the exceptionally urgent need fbr their invocation. 'Ihc urgency must be real. immediate and apparent and not the product of applicant's own lack ol'diligence. 'lhe applicant has to prove

reasons why notice to the respondent should be dispensed with to enable court entertain the application with cxtreme urgency.

Counsel fbr the applicant has demonstrated the urgency of this application by contending that the 2n'l respondent is trying each and every means to hold the said delegates conlerence despite the fact that he has been advised to reschedule. the conf-erence lbr security reasons and yet he has devised means ofconducting the same virtually. Secondly that the 2nd respondent is holding the said conference on 26107 /2025 which is tomorrow necessitating the intervention of this court.

From the above contentions. I t'ind that counsel lbr the applicant has demonstrated the urgent nature of this application which is to restrain the delegate conference called by the 2nd respondent tiom proceeding until the main application is heard.

ll0l On the 3'd element. a real threat or danger is constituted by actual and irnminent threat or a physical danger that is real. would oocur within an immediate time ltame. and could result irreparable loss befbre the imminence of such danger can be eliminated by an expeditious hearing of the main application. In determining whether the circumstances pose an actual and imminent threat. the f-actors to be considered include: Thc duration ol'the risk. the nature and severity of the potential harm. the likelihood that the potential harm will occur, and the length of time betbre the potential harm would occur. See thc casc of Eastern Carsolines Consults Limited and Another Vs Rif ^International (ptv) Limited and 3 Others (Miscellaneous Annlication 6l ^I of 2012. \*

Counsel submitted that there is a real threat since the delegates conl'erence is tomorrow lhe 26/07 /2025 in rvhich the applicants belicve that the calling ol the extra ordinary conlbrence intends to circumvent the court decisions that have been issued in various cases including Denis Adim Onapa Vs UPC & Hon Jimmv Akena Misc. Cause No. 148 of 2025.

The applicant in the instant matter has proved that there is a real threat or danger that cannot be eliminated by an expcditious hearing of the main application. I there[bre. tlnd that indecd if the 2nd respondent is allowcd to proceed with the delegales' conlbrence il might be too late to avert the danger considering that his position as presidcnt and capacity to call lor thc said delegates' conf'erence is in dispute in @00!!}!!2.1.

llll Lastly. this application ought to be brought in good thith. Counsel tbr the applicant has stated that he endeavoured to serve the respondents the main application and also infbrm them of the pending hearing of this exparte interim order. The courl record shows that the applicant and his counsel tried to serve the respondents of the pending hearing of this application and the main application which shows that indeed this application has not been brought in bad thith.

Secondly. this application was filed without inordinate delay considering the circumstances that led to the call ofthe delegates' confbrence. It is my tinding that the applicant has proved that this application has not been brought in bad fhirh.

1l2l For the above reasons. I find that the applicant has proved there exist exceptional circumstances for the grant of this application. Accordingly. this application is hereby granted with the fbllowing order:

> An interinr exparte order is hereby issued for three days restraining the l"rand 2"d Respondents their agents. servants. or any one acting under their authority from convening either by physical or virtual. the extra-ordinary delegates' conf'erence scheduled for 2610712025 until the hearing of MA-0573-2025 schcdu led lbr 29/07 /2025 \$

I so order

a5\*t Datcd at Kampala this dav ol ²⁰²⁵ a0' JoyCe Kavuma Judge