The High Court sitting in Kampala has ordered city businessman Mohan Musisi Kiwanuka to appear before it as the court determines whether he is capable of managing his affairs. Kiwanuka, who is married to former Minister Maria Kiwanuka, is the proprietor of several businesses under Oscar Industries. Additionally, he owns Radio One and Akaboozi Ku Bbiri radio stations in Kampala.
The court’s order comes as part of ongoing proceedings to assess Kiwanuka’s ability to run his business ventures effectively. A section of Kiwanuka’s family claims that he is mentally incapable of making his own decisions. However, another group allied to Maria Kiwanuka maintains that he is mentally sound and that it is he who had instructed Buwule & Mayiga Advocates to appear in court on his behalf. In 2023, Justice Musa Ssekaana, who has since been promoted to the Court of Appeal, ruled that after interacting with Kiwanuka in the presence of his lawyers, he found him mentally sane and therefore, capable of making decisions.
He went ahead and dismissed the application against Kiwanuka, saying he was sane and that other prayers made by the applicant and Kiwanuka’s son Jordan Ssebuliba had already been adjudicated. However, in their application, another group of Kiwanuka’s relatives including Jalia Muwanga, Nantege Yudaya Nsereko, Berti Nsereko Kawooya, and Sarah Nsereko, sought a judicial review, saying there was new evidence that necessitated a review of the case.
In their application, the applicants stated that Justice Ssekaana ignored the admission by Kiwanuka’s lawyers and evidence by some of the witnesses that confirmed that he had an existing mental disability. They said this was an error apparent on the face of its record by the court that occasioned a miscarriage of justice. They also alleged that the lawyers of Kiwanuka were acting illegally for him because there was no evidence that they had been officially instructed by Kiwanuka to act on his behalf. In response, Buwule & Mayiga Advocates argued that they had represented Kiwanuka in several matters since their inception in 1994.
Therefore, owing to the long-standing relationship that their law firm has had with Kiwanuka, it was circumstantially, duty-bound to represent him. They also said that in 2019, Kiwanuka had appointed Francis Buwule to be the company secretary to manage his companies. Buwule is one of the partners in the law firm. In his ruling, Dr Flavian Zeija who has been the principal judge and has since been appointed as the deputy Chief Justice said that the issue of an advocate having received instructions to act for a client is central to any case.
“it is trite that no Advocate can act for a client without receiving instructions from that client or his or her authorized agent…Any action taken in a case by counsel without instructions is incompetent. Therefore, where a question of counsel having instructions is raised, the court has a duty to determine the same before counsel whose instructions have been questioned proceeds in the matter. This was not done. This is a mistake apparent on the record of Court, that ought to be corrected,” Zeija’s ruling reads in part.
The ruling also noted that there was evidence in the affidavit deponed by Kiwanuka’s witnesses that cast doubt on his mental ability. Therefore, Ssekaana according to Zeija had to consider them before dismissing the application.
“There is affidavit evidence from the Respondent’s witnesses to wit; Edwin Busuulwa, Dr. Simon Sekiganda Luzige, and Dr. Haniet Nankabinrua who in their own affidavits admit that in about May or June 2023, the respondent had developed mental health issues as mentioned in their respective affidavits. ln preparations for a worst-case scenario, Dr. Harriet Nankabirwa affirmed that she started to prepare the Respondent in case he was unable to manage his own affairs by taking him through steps they take in cases of patients of that nature…This is clear evidence of the occurrence of new facts that did not exist when my learned Brother Hon. Justice Ssekaana Musa delivered his ruling,” Zeija ruled.
Meanwhile, Kiwanuka’s lawyers had also objected to the review of the case by the principal judge. They argued that the rules decree that the judge who heard the previous matter in which a review is sought is the very one to hear the matter. But Zeija disagreed with this reasoning arguing that any judge of the high court can hear any matter in that court even if he/she was not the original judge who heard the case.
“There is only one High Court in Uganda. The duty to distribute business in the Court is an administrative responsibility of the Court. At the High Court level, that duty is vested in the Principal Judge…My view is that this is a simple dispute to resolve. Mr. Mohan Kiwanuka is either sane or insane. On the basis of the new facts that were pleaded, some of which were admitted by the Respondent’s own witnesses in their affidavit in reply as indicated herein, it does no harm for the respondent to appear or be caused to appear before this honorable court as it was done before my learned brother Hon. Justice Ssekaana Musa and matter is put to rest. The applicants will then be put to shame if their averments are incorrect. Mental status is a condition that can change within hours. Someone who is sane today may be insane tomorrow and vice versa,” Zeija said before reinstating the case that Ssekaana had dismissed.
