Court clears way for judicial review against former lands minister

He said that, without giving him an opportunity to be heard, Mayanja ordered his immediate arrest over alleged fraud.

Mawejje further alleged that Kikonyogo began constructing on the land and caused some bibanja holders whom he had allegedly compensated to return to the property.

He also accused Mayanja of stopping him and the police from taking any action concerning the occupation, eviction, sale or transfer of the land.

Mawejje argued that the minister's actions were illegal, irrational and contrary to the rules of natural justice.

He said the land dispute had already been adjudicated by the High Court in Civil Suit No. 239 of 2012, which he said had been dismissed.

According to Mawejje, Kikonyogo subsequently filed an appeal, an application for review and later an application for revision, but all were unsuccessful or withdrawn.

He argued that the minister had no authority to reopen or reinvestigate issues concerning his ownership of the land when the matter had already been determined by the court.

However, Mayanja, in his defence, told the court that more than 300 bibanja holders from Mpegwe village had petitioned his office in October 2022, complaining of alleged illegal evictions from land they had occupied for more than 30 years.

Mayanja said investigations carried out by his office established that Mawejje was allegedly using people to evict residents from the land.

He said he therefore organised a locus meeting and fact-finding mission to enable the parties to reach an amicable settlement.

Mayanja said that during the meeting, he found evidence that Mawejje had allegedly evicted bona fide occupants without following the provisions of the Land Act and the 2021 land eviction directives.

He said that, out of the approximately 521 acres, a large portion was occupied by bibanja holders who had established farms and permanent structures.

The former minister argued that the High Court judgment relied upon by Mawejje dealt only with the Mailo certificate of title and did not determine the rights and interests of the tenants occupying the land.

He said Mawejje had admitted that the occupants were already on the land when he purchased it but had failed to explain how they came to occupy it.

Mayanja also said Mawejje had not physically inspected the land before purchasing it from the mortgagor.

He maintained that the bibanja holders were bona fide occupants who had originally occupied the land with the permission of the late Serukwaya, who was the registered Mailo owner.

The former minister said he therefore directed Mawejje to stop evicting the occupants and ordered that he could be arrested and prosecuted for malicious damage to property if he continued with the alleged evictions.

Kikonyogo, in his response, told the court that more than 300 bibanja holders had petitioned Mayanja over alleged mass evictions.

He claimed that the disputed land, measuring about 561 acres, was occupied by more than 600 homesteads.

Kikonyogo said the occupants had houses, farms and cultural sites, including burial grounds, on the land.

He argued that many of the occupants had never been parties to the court proceedings between Mawejje and other parties and should therefore not be evicted on the basis of judgments in cases to which they were not parties.

Mawejje, however, denied illegally evicting bona fide occupants.

He said he had negotiated and reached agreements with some of the bibanja holders and had peacefully coexisted with them since 2006.

He also argued that a valid court judgment could not be treated as illegal and maintained that he had acted in accordance with the court decision.

Court weighs arguments

In determining whether the application could be entertained through judicial review, Justice Kinobe considered Article 42 of the Constitution, which gives a person appearing before an administrative official or body the right to be treated justly and fairly.

The judge also considered the Judicature Act and the Judicature (Judicial Review) Rules, which provide for judicial review of decisions made by public bodies and officials.

Justice Kinobe ruled that Mayanja, having made the contested decisions while serving as State Minister for Lands, was properly sued as a public official.

He similarly found that the Inspector General of Police was properly joined as a respondent because the office is a public office.

However, the judge held that Mawejje had failed to demonstrate how Kikonyogo qualified as a public official.

Justice Kinobe consequently struck Kikonyogo off the case.

The judge also considered whether Mawejje had exhausted other available remedies and found that there were no known remedies within the Ministry of Lands, Housing and Urban Development against the decisions of the minister.

The court therefore found that judicial review was an available remedy against the minister's decisions.

However, the ruling also raised a preliminary objection concerning the time within which the application was filed.

The respondents argued that Mawejje had not filed the application within three months of the date the grounds for judicial review first arose, as required by law.

Justice Kinobe noted that statutory time limits are mandatory and must be strictly complied with, although courts may extend the time where sufficient cause is demonstrated through a proper application.

The judge cited the Judicature (Judicial Review) Rules, which require an application for judicial review to be made promptly and, in any event, within three months of the date when the grounds first arose unless the court considers there is good reason to extend the period.

The court emphasised that an extension of time is not automatic and must be sought through a formal application supported by sufficient reasons.