THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)
MISCELLANEOUS APPLICATION NO. 0103 OF 2024
(ARISING FROM MISC.CAUSE NO. 006 OF 2024)

MUZAALE SIMON:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

NATIONAL ENVIRONMENT
MANAGEMENT AUTHORITY:::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE: HON. JUSTICE SSEKAANA MUSA

RULING
This is an application under Section 98 of the Civil Procedure Act and Section
33 of the Judicature Act and Order 41 of the Civil Procedure Rules for orders
that;
a) A temporary injunction doth issue restraining the respondent and/or
any of its servants or agents or any person from enforcing and or
implementing in anyway of the STOP ORDER and ENVIRONMENT
RESTORATION ORDER issued by the respondent on the 17th day of
November 2023 and 1st November 2023, on the Applicant’s land
comprised in Block 106 Plot 1543 Land at Nvunwa which were arrived
at illegally, irrationally, unreasonably, and in breach of the rules of
natural justice, including the resolutions to stopping the applicant
from re-developing the property pending the hearing and
determination of the judicial review Application.

The application for temporary injunction was supported by an affidavit in

support sworn by Mr. Muzaale Simon.
1. The applicant is the Registered Proprietor of the land comprising Block
106 Plot 1543 land at Nvunwa, having purchased the same from its
former Registered Proprietor Marvel International Limited and
obtained a title on the 11th April 2022.

2. Before the purchase and transfer of the land to the applicant, the
previous registered proprietor Marvel International Limited was
desirous of starting a car depot sought the indulgence and approval of
the respondent and was subsequently granted a Certificate of
Approval of Environmental Impact Assessment running from May 17-
May-2021 and the same was extended for five years ending April, 2026.

3. That whilst acting under the terms and conditions of the EIA
aforementioned, the previous Registered proprietor obtained all the
necessary approvals from the respondent, Municipal Council among
other authorities, commenced and concluded construction of a wall
fence, toilet block, small back-end rooms, a temporary storied
structure, a gate and backfilling of the premises (project) at the watch
and authorization of the respondent.

4. That the applicant has since the purchase of the said premises never
made or added any constructions to the said land and the status quo
is still as was passed on or developed by the former registered
proprietor while acting on approvals and terms of the
authorities/respondent.

5. That the respondent issued a Stop Order and Environment Restoration

Order against the applicant, which decision was fraught with
procedural irregularity, illegality, arbitrary and irrational; and is thus
unjust and unfair to the applicant.

6. The applicant’s interest in the land is threatened by the respondent’s

orders which require among others to vacate the land, which decision
is arbitrary, callous and inconsiderate of the applicant’s right to
property.
 7. The applicant has suffered and has continuously suffered
insurmountable loss and loss of earnings as a result of the respondent’s
actions which involve arresting him and his agents, confiscating and
destroying property on the land, and now issuing a Stop Order and
Environment Restoration Order irrationally, illegally and
inconsistently.

8. That the respondent did not follow due process in reaching its
decisions, there was no adherence to the constitutional right a fair trial
and expeditious hearing, and as a result there was unfair and unjust
treatment.

While the respondent filed an affidavit in reply sworn by Dr Barirega

Akankwasah–the Executive Director and Chief Accounting Officer of the
respondent;

1. The respondent in their affidavit contended that under the law, the
respondent has powers to issue environmental notices and orders
including environmental restoration orders, prohibition orders and
stop orders and effect such service of such orders on the responsible
person to take action on obligations stipulated therein and such orders
continue tom apply until complied with.

2. That the decision to issue restoration order and stop order were legal
rational and justified and do not in any way from justification to a
grant for an injunction against the respondent, a statutory body, to
stop executing its duties.

3. That the applicant has not exhausted the avenues of relief which entail
an appeal and or a review of a decision of the respondent under
sections 132 and 140 of NEMA Act which renders this application
premature and incompetent.
 4. That the measures are in place to stop activities and restore the
degraded area and they are intended to prevent further degradation
and damage to the environment and is clearly in enforcement of the
law and in execution of the respondent’s statutory mandate which
includes guaranteeing every person living in Uganda a right to a clean
and healthy environment which is endangered by the applicant’s
illegal activities.

The applicant was represented by Bamuhabura Joseph while the respondent

was represented by Herbert Chesiyey and Doreen Tumuheirwe

The parties filed their respective submissions which I have considered in this
ruling.

Whether the court should issue a temporary injunction in this matter?

The applicant’s counsel submitted that the applicant is challenging the stop
and restoration orders which are likely to lead in the eviction of the applicant
from the disputed land and this would render the main application
nugatory. The applicant seeks to maintain the status quo decision such that
the respondents are restrained from enforcing the stop and restoration order
with respect to the suit land.

The applicant contends that the stop and restoration order is being
challenged in the main application for judicial review for illegality,
irrationality and procedural impropriety. It is their submission that the main
application raises triable issues and the affidavit evidence of the applicants
demonstrates that there is a prima facie case warranting the grant of
temporary injunction.

The applicant further contends that he will suffer irreparable injury or

damage if the respondent is not restrained considering that on the said land
the applicant holds sentimental attachment having invested all his future
lifetime retirement and pension for the benefit of guaranteeing sustenance
and livelihood on the project.
That the cost to be incurred by the applicant due to the respondent’s
unlawful actions is unimaginable and irrecoverable in the damages sought
in the main application, hence this exorbitant cost is factually irreparable. In
addition, the respondent threatens to continue arresting the applicant as a
mode of enforcement of their orders.

The respondent’s counsel submitted that in an application for temporary

injunction court must look at the respective situations of the contending
parties to determine the real issue on trial. The traditional rule in regard to
the basis of a claim for judicial redress is that the person must show that
he/she has suffered a legal injury of violation of his right. For the equitable
remedy of injunction to issue, the applicant must clearly demonstrate that
there is no form of illegality on his part, which is not the case

The respondent counsel further contended that there is no relationship

between the applicant and respondent that is capable of rendering breach
save for his offending actions in the environment in contravention of the
laws and clear statutory duties of the respondent to direct his actions.

The respondent submits that the interventions and orders issued by the
respondent were clearly informed by the breach of conditions of approval.
The respondent would suffer irreparable damage of the degradation of the
wetland system and its functionality which extends to all person living in
Uganda. The actions of the applicant if not stopped would have grave
impacts that are hydro-logical, ecological and socio-economical in nature
and thus hard to compute and subject to pecuniary measurements.

The applicant should not be allowed to disguise illegal activities under a

claim of interference with enjoyment of a constitutional right to property. As
property owner or user, he is the subject of regulation as clearly provided
under Section 44 of the Land Act which provides that land ownership is
subject to the laws governing ecologically sensitive areas. This application is
seen as an escape route for him to avoid adhering to the laws governing his
activities.
Analysis
A temporary injunction is a pre-emptive remedy. It is preventive in its
nature. By its very nature is interim or interlocutory. Its duration is tentative,
provisional, impermanent, mutable not fixed or final or conclusive. It is
characterized by its for-the-time-beingness. It emanates from one of the
most valuable features of equity jurisdiction to anticipate and prevent injury.

It is a jurisdiction exercised for the benefit of both parties. For the benefit of
the defendant/respondent because the injunction discloses to him/her that
he/she is probably proceeding without warrant of the law; for the benefit of
the complainant by protecting him from injuries which if inflicted would be
wholly destructive of his/her rights before they are judicially considered. See
Siteyia v Gitome & Others [1993] KLR 801

The goal of temporary injunction is to maintain the status quo pending the
outcome of the litigation. The status quo which will be preserved by a
temporary injunction is the last actual, pre-dispute, peaceable, non-
contested status which preceded the pending or forthcoming controversy to
be resolved in the suit. This means that the injunction shall preserve or
restore such relationship to a desirable state.

The jurisdictional and procedural principles governing interim injunctions

or temporary injunctions must be sufficiently balanced and flexible to
address the objectives of these remedies. The court’s discretionary powers
should only be exercised if the court is satisfied that there is status quo to be
preserved for the benefit of the parties and no injustice would be suffered by
the parties.

If the court believes that there is a serious issue to be tried, it will

prospectively consider the parties’ respective positions according to whether
an injunction is granted or refused. In doing so, the court will gauge the
hardship which would be caused to the applicant if he is refused relief and
balance it against the hardship which would be caused to the respondent if
the injunction is granted. If neither party would be adequately compensated,
the court would ascertain where the balance of justice lies.

The jurisdiction to grant a temporary injunction is an exercise of discretion

and the discretionary powers are to be exercised judiciously as was noted in
the case of Yahaya Kariisa vs Attorney General & Another, S.C.C.A. No.7 of
1994 [1997] HCB 29.

It should be noted that where there is a legal right either at law or in equity,
the court has power to grant an injunction in protection of that right. Further
to note, a party is entitled to apply for an injunction as soon as her legal right
is invaded. See Titus Tayebwa v Fred Bogere and Eric Mukasa Civil Appeal
No.3 of 2009.

In applications for a temporary injunction, the Applicant is required to show

that there must be a prima facie case with a probability of success of the
pending suit. The court must be satisfied that the claim is not frivolous or
vexatious and that there is a serious question to be tried. (See American
Cyanamid Co v Ethicon Ltd [1975] ALL ER 504).

A prima facie case with a probability of success is no more than that the Court
must be satisfied that the claim is not frivolous or vexatious, in other words,
that there is a serious question to be tried as was noted in Victor
Construction Works Ltd v Uganda National Roads Authority HCMA NO.
601of 2010.

The applicant is challenging the Stop and Restoration Order issued in respect
of the land now owned by the applicant. The respondent contends that they
exercised their statutory authority to preserve the environment and wetland
in particular. The applicant is challenging the issuance of the said order for
illegality irrationality and procedural impropriety. The court cannot make a
determination at this stage since it is yet to interrogate facts and
circumstances surrounding this application.

There are serious issues to be interrogated in the main application (Cause)

and this court is satisfied that the case for the applicant is not frivolous or
vexatious under the circumstances. The court should be given some
reasonable time to determine the issues of contention without any of the
parties being prejudiced.

The whole purpose of granting an injunction is to preserve the status quo as

was noted in the case of Humphrey Nzeyi vs Bank of Uganda and Attorney
General Constitutional Application No.01 of 2013. Honourable Justice
Remmy Kasule noted that an order to maintain the status quo is intended to
prevent any of the parties involved in a dispute from taking any action until
the matter is resolved by court. It seeks to prevent harm or preserve the
existing conditions so that a party’s position is not prejudiced in the
meantime until a resolution by court of the issues in dispute is reached. It is
the last, actual, peaceable, uncontested status which preceded the pending
controversy. The court should not preserve a contested status quo which is
under challenge for illegality and especially under judicial review.

The applicant does not want the respondent to enforce and implement the
stop and restoration order issued against him and the same may involve
arrest and prosecution. On the other hand, the respondent is trying to ensure
that the applicant does not continue to degrade the environment or the
wetland. The court must balance the stakes of the parties in order to avoid
either party being seriously prejudiced by the actions of the other.

This court has wide discretion at this stage to consider any factor which
would have a bearing on the issue whether the injunction ought to be
granted. It is for the court to determine the weight to be accorded to a
particular factor weighed in balance and where they appear to be balanced
the court ought to consider and strive to preserve the status quo.
Other factors that may be taken into account in determining the balance of
convenience include the importance in upholding the law of the land or rule
of law and the duty placed on the authority to enforce the law in public
interest. The actions of the respondent must be rooted in the law and any
divergence and abuse of power must be restrained as the court investigates
the circumstances surrounding the Stop and Restoration Order issued
against the applicant by the respondent.

This court in the exercise of its discretion ought to avoid any absurdity in
application of the law since the damage the applicant will suffer if court rules
in his favour will be greater and irreparable. It is a well settled preposition
of the law that an interim injunction order can be granted only if the
applicant will suffer irreparable injury or loss keeping in view the strength
of the parties’ case.

The courts when exercising power of judicial review have a duty of ensuring
that the public body or officer has acted in accordance with the law or within
the ‘four corners’ of the legislation or constitution and thus enforcing the
rule of law. The court would be greatly inclined to granting interim remedies
as it establishes the propriety of the decision in order not to render the
application nugatory. Where an injunction is asked which will affect public
interest for whose impairment, even temporarily, an undertaking as to
damages cannot compensate, the court may in public interest withhold the
relief until a final determination of the rights of the parties, though the
postponement may be burdensome to the applicant.

The court’s power to grant a temporary injunction is extraordinary in nature

and it can be exercised cautiously and with circumspection. A party is not
entitled to this relief as a matter of right or course. Grant of temporary
injunction being equitable remedy, it is in discretion of the court and such
discretion must be exercised in favour of the applicant only if the court is
satisfied that, unless the respondent is restrained by an order of injunction,
irreparable loss or damage will be caused to the applicant. The court grants
such relief ex debitio justitiae, i.e to meet the ends of justice. The court must
keep in mind the principles of justice and fair play and should exercise its
discretion only if the ends of justice require it. See Section 64 of the Civil
Procedure Act.

In the result for the reasons stated herein above this application partly
succeeds: A temporary injunction doth issue restraining the respondent
and/or any of its servants or agents or any person from enforcing and or
implementing in anyway of the STOP ORDER and ENVIRONMENT
RESTORATION ORDER issued by the respondent on the 17 th day of
November 2023 and 1st November 2023, on the Applicant’s land comprised
in Block 106 Plot 1543 Land at Nvunwa until when the main cause is
determined.

Secondly, the Applicant is equally restrained from doing any act by himself
or servants or agents which would degrade the wetland or environment on
the land comprised in Block 106 Plot 1543 Land at Nvunwa during the
pendency of this matter in court until when the main cause is determined.

The costs shall be in the cause.

I so Order

Ssekaana Musa
Judge
17th May 2024