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The background to the current dispute lies with repairs carried out in 2016 by the British High Commission (BHC) to its premises in Kamapala. The work was intended to fix the storm water drainage on its property. As part of those repairs, the BHC is alleged to have put up a steel grille as part of the drainage system on its property. That grille in turn is alleged to have become blocked with the water thus blocked leading to the destruction of the wall belonging to the BHC’s neighbour, Epimac Kagoro.

Kagoro says that it cost him a lot of money to rebuild the wall and that he tried to speak to his UK neighbours about the problem. However, they wouldn’t engage in any discussions with him.

Despite the BHC’s lack of engagement on the issue, he wants the court to ensure that he is recompensed and he has brought an action against the BHC for the more than UGX 87 million that he alleges the repair has cost him.

Restrictive immunity

In 2019, Ugandan high court judge Lydia Mugambe ruled that the legal action envisaged by Kagoro against the BHC could go ahead. This was despite the argument by the BHC that the Ugandan courts had no jurisdiction to hear the dispute over the wall because of the UK government’s sovereign immunity.

Mugambe overruled that argument, saying that the legal action before the court was a ‘commercial transaction to which restrictive immunity did not apply’.

In response to that decision, the UK government has since brought an application for leave to take the question of its sovereign immunity in this dispute, to Uganda’s court of appeal. Needless to say, Kagoro’s legal team has strongly opposed the application to appeal the initial ruling by Mugambe.

Serious judicial consideration

In its application to appeal, the legal team acting for the UK government put up written submissions saying that the judge hearing the application for leave to appeal, Esta Nambayo, didn’t need to make a full evaluation of the merits of the grounds of appeal. Rather, she only needed to decide whether it appeared there were grounds of appeal that ‘merited serious judicial consideration’.

In addition, lawyers for the BHC said the Mugambe court should have concluded that the BHC’s installing of a grille ‘does not amount to a trading activity’ with Kagoro. It was ‘wrong for the court to find that the BHC was engaged in trading or commercial activity because [Kagoro] replaced a broken wall and needs compensation for expenses incurred.’

Mugambe’s decision raised serious issues of law and fact, the lawyers added, particularly about upholding sovereign immunity, and for this reason leave to appeal the initial finding should be granted.

Kagoro’s lawyers, on the other hand, said the principle of immunity didn’t pass the test of meriting serious judicial consideration.

Re-evaluate evidence

In her decision on the dispute over whether to grant leave to appeal, Nambayo said it was the finding by the trial judge (Mugambe) that the BHC ‘was engaged in trading or commercial activity and as such the high court had jurisdiction to hear the main suit.’

Kagoro had contended that he had incurred expenses to repair the wall and that the BHC should reimburse him. It was the relationship formed by this situation that led Mugambe to find there was a ‘commercial transaction’ between the two parties.

Nambayo said that according to Uganda’s law on diplomatic privileges, a diplomatic agent enjoyed immunity from the criminal jurisdiction of the host state. Further, such an agent had immunity from the civil and administrative jurisdiction as well, except in the case of ‘an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions’.

Nambayo found that in this case, the appellate court needed to re-evaluate the evidence on record and decide whether there was in fact a ‘commercial transaction between the parties.’ Thus, she decided to grant the BHC leave to appeal against the ruling and orders of Mugambe. She further ordered that Kagoro’s initial civil suit be put on hold pending the outcome of the appeal.