High Court Principal Judge Justice Flavian Zeija and city lawyer Kiryowa Kiwanuka, of K.K Advocates, have come under attack for allegedly arm-twisting the judicial system, in a bid to frustrate the case involving tycoon Hamis Kiggundu aka Ham and Diamond Trust Bank Uganda (DTBU)/Diamond Trust Bank Kenya (DTBK).
This comes after tycoon Ham, through his lawyer of Muwema and Company Advocates, petitioned the Chief Justice, the Deputy Chief Justice and the Judicial Service Commission to reign in on Justice Zeija, such that he can change from his unbecoming style of handling court business.
This is because Ham’s camp alleges that Justice Zeija and lawyer Kiwanuka (counsel for DTBU/DBTK) are using underhand methods to frustrate Justice Peter Adonyo’s ruling, which decreed that DTBU/DTBK should reimburse Ham with over Shs120Bn as compensation money both banks illegally withdrew from his company accounts, to purportedly pay a loan of USD10M which they had extended to his companies, yet he had fully repaid the same.
However, despite Justice Adonyo’s ruling, Kiryowa, through his machinations with Justice Zeija, have since ensured that execution of the ruling is stayed as they buy time for another gimmick with which they hope to save DTBU/DTBK.
However, on realising Justice Zeija unbecoming judicial practices, Ham has since written complaint to the Chief Justice and other relevant authorities, in which he states thus;
RE: COMPLAINT AGAINST THE PRINCIPAL JUDGE HON.JUSTICE DR. FLAVIAN ZEIJA,FOR JUDICIAL MISCONDIUCT
We request for your intervention in regards to the judicial misconduct of the Principal Judge Hon. Justice Dr. Flavian Zeija in handling our file vide HCCS NO.43 of 2020: HAM ENTERPRISES (U) LTD & 2 OTHERS VS DIAMOND TRUST BANK UGANDA LTD / DIAMOND TRUST BANK KENYA LTD
We run to courts of law where we expect to receive justice. However, to our dismay, we have been turned into victims in this temple of Justice through the unfair biased actions of the Principal Judge Hon. Justice Dr. Flavian Zeija.
Since he is a former Banker, having served at Finca Uganda and Tropical Bank of Africa; his loyalty is inclined towards supporting banks against clients in courts of law taking advantage of his superior high-ranking position in the Judiciary.
This is evident from his misconduct with our file right from the start when we filed the plaint where on various occasions, to mention but a few very significant ones.
Without notice, he summoned the file when it was before the deputy registrar, Her Worship Dr. Agnes Nkonge, giving it direction in regard to our application for an injunction against the bank.
As a fact, the final Extracted Order Subjecting us to a condition of paying 30% we received was divergent from the hearing proceedings before her worship and this left doubt in our minds to date. (Attached is a copy of the directive to that effect.)
He further summoned the deputy registrar, her worship Dr. Agnes Nkonge during the handling of Miscellaneous-Application No. 34 of 2020 with knowledge of the defendant without any notification to we the plaintiffs or our lawyers.
He further called for the file after receiving a letter from ‘MK advocates dated 6th July 2020 where counsel unreasonably, unjustifiably complained about the allocation process of the file to Hon Justice Duncan Gaswaga, which letter we were not notified about as the plaintiffs or our Lawyers
Due to the pressure from the Principal Judge Hon. Justice Dr. Flavian Zeija, Hon Justice Duncan Gaswaga recused himself from the hearing of the case on the 9th of July 2020 before determination of the appeal against the bank for a condition of payment of 30% that stands currently unconstitutional contrary to article 28 of the constitution, that provides for a right to fair hearing, thus the ruling would have affected banks and their unfair practices against their clients in the recovery process which subjects them to payments before they can be heard by courts of law.
We filed a constitutional petition to that regard but the principal Judge’s actions to that regard still stands questionable.
The file was re allocated to Hon. Justice Dr. Henry Peter Adonyo. The head of Commercial Court who gave the parties chance to be heard and delivered his ruling on the 7th October 2020 in our favor.
The defendants filed a notice of appeal and served our lawyers. They equally filed Misc. Application no.848 and 846 of 2020 for an interim with main order for stay of execution of the decree.
They served our lawyers the interim order application on Monday 12th October 2020 to be heard on 13th October 2020 at 2:30 at the commercial court but hearing never took place as we were verbally informed that the Principal Judge had called for the file again.
We were left with no clear direction and very uncertain due to the level of Judicial misconduct and favoritism that the principal judge had demonstrated at this point in time as we would have expected effective timely notifications on each and every step on our file in line with the rules of administration of Justice by Judicial officers with transparency in regard to handling of case files.
It is really sad that we stood stranded at the commercial court where we had been instructed to come and have the file heard. We received information in court corridors that the Principal Judge had proceeded and gave an Ex parte order against us at his chambers only in the presence of counsel for the defendants.
The actions of the Principal Judge not only have compromised the independence of the Judiciary but have equally seen him betray his oath to uphold justice, promote democratic principles, uphold the rule of law and safeguard the constitution through protection of human rights for all citizens of Uganda.
Through our lawyers: Muwema and Co Advocates & Solicitors and Kimara Advocates and Consultants, these matters were brought to the attention of the chief Justice in a complaint letter dated 13th October, 2020.
Though we discovered that the mandate of handling disciplinary matters of Judicial officers lies with you the Judicial Service Commission it’s in this regard we are writing to you this complaint.
We therefore humbly request for your urgent intervention to this regard and in the interim, the principal judge should recuse himself from any legal proceedings in regard to our file, let Justice prevail in line with the procedural guidelines of courts.
The law on interim stay of execution does not grant the Principal Judge Jurisdiction at all to handle such applications where he has not handled the matter. He neither is the appellate court in the circumstances.
In further addition, his actions undermine the independence of the judiciary as enshrined in the constitution when he purports to interfere with other judicial officers’ decisions without recourse to the law.
His actions also violate the right to fair hearing when he takes decisions solely on the motion of the defendants /applicants but to the total exclusion of us who are also parties.
The Principal Judge’s actions also put the judiciary in very bad light since it tends to portray his colleagues as incompetent.
In essence, the Principal Judge is setting a very dangerous precedent where litigants can Cherry pick Judicial officers to their convenience whenever a decision is not in their favor without following the well-established appellate Judicial processes.
He stands compromised and we are not comfortable with him handling our file.
In conclusion, we request the Commission to investigate the matter under article 147 of the constitution and section 27 of the Judicial service act together with the judicial service (complaints and disciplinary Proceedings) Regulation 2005. As there are several people with similar complaints.”
However, our efforts to reach either counsel Kiwanuka or Justice Zeija for a comment about this matter were futile because they couldn’t be reached through their office lines.