JURISDICTION

An important issue in private international law is the ground or basis upon which a court will
have jurisdiction to hear an action or a claim. In Uganda for example jurisdiction is conferred
upon by the statutes. The basis of jurisdiction enables a court to further define their
competence, especially, in claims involving a foreign element. Different bases of jurisdiction
exist for actions in personam and actions in rem as well as for foreign plaintiffs and
defendants.
Source of Jurisdiction in Uganda
The primary source of jurisdiction is the Constitution of Uganda. The constitution establishes
the courts of judicature & makes initial pronouncements about the jurisdiction of those
courts. Jurisdiction is therefore a creature of the constitution and/or an Act of Parliament. It
cannot be implied. It cannot be wished. It must be given by statute. It’s a creature of law.
Jurisdiction is about authority to adjudicate. Article 129
Jurisdiction of a court is therefore not a matter for implication but must be prescribed by
law; Read Ahamed Kawooya Kaugu V Bangu Aggrey Fred and Anor [2007] HCB 35 SC
Where a court entertains a matter falling outside its constitutional or statutory mandate, it will
be assuming jursidction not given to either by Parliament or any other law; A court can not
and should not exercise jurisdiction not given to it by law; Athanassus Kivumbi Lule v Hon.
Emmanuel Pinto CA const. Petition No. 5 /1995
No court can confer jurisdiction upon itself and if it does , such proceedings are a nullity, and
it is well established principle of the law that judgment of a court which acts without
jurisdiction is a nullity. Desai v Wansaw (1967) EA 351

It is therefore a foundational principal of law that a court is only competent if it derives its
power from the law. A court is also only competent if it’s properly & duly constituted. People
who man the courts must be properly appointed. Art. 142, 143 & 144. The
In Baku Raphael Obudra V Attorney General , the applicants challenged S.63 of the
Parliamentary Elections Act that made the court of Appeal the final court in determination of
election petitions. In holding that the section was inconsistent with the constitution which
makes the Supreme Court the final appellate court, it was stated that It is trite law that
jurisdiction is created by a statute. Court quoted the case of Attorney General vs Shah here it
was stated thus: "It has long been established and we think there is ample authority for
saying that appellate jurisdiction springs only from statute. There is no such thing as
inherent appellate jurisdiction."
In Athanasius Kivumbi Lule v Hon. Emmanuel Pinto1 the petition brought a petition to the
Constitutional Court for a declaration that the respondent was not academically qualified to
be notice of motion inated and elected as a member of parliament. At the hearing, an
objection was raised by the respondent to the effect that the Constitutional Court had no
jurisdiction to entertain the election petition. The Constitutional Court made an observation
1 Constitutional petition no.5 of 1997

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that that Article 137 clothes the Constitutional Court with power to entertain matters
regarding interpretation of the constitution. That the relevant forum for the petition was first
the Electoral Commission and the law also provided the petitioner with the opportunity to
appeal to the High Court. The court thereby held that if it was to entertain the application, it
would be assuming a jurisdiction not given to it either by parliament or any law. The
Constitutional Court is a creature of the Constitution and cannot exercise any jurisdiction not
given to it by law.
In Lukwago v Attorney General SC civil application No 06/2014, the substantial issue was,
whether a decision or order of a single Judge of the Court of Appeal is appealable to the
Supreme Court. The Supreme Court held that such an appeal is not possible because of
Section 12 (2) of the Judicature Act and therefore it has no jurisdiction to entertain an appeal
from a decision of a single Justice of Appeal. That the appropriate action the applicant can
take is to refer the matter to a bench of three Judges of the Court of Appeal for review. That
bench has power to vary, reverse or confirm the decision of a single Judge. Thereafter, the
applicant can appeal to this Court against the decision of the three Judges of the Court of
Appeal. Rule 2 (2) of the Rules of this Court providing for inherent powers of this Court to
make such orders for achieving the ends of justice cannot be applied to override the clear
provisions of the Judicature Act, which is the parent and superior law
Types of Jurisdiction
Jurisdiction over the person
Acquired by the voluntary appearance of a party and his submission to authority or by
service of summons.
1. Jurisdiction over the person of the plaintiff is acquired from the moment he invokes
the aid of the court and voluntarily submits himself by institution of the suit through
proper pleadings.
2. Jurisdiction over the person of the defendant is acquired through:
a. voluntary appearance or
b. personal or substituted service of summons
II. Jurisdiction over property
 Results either from the seizure of property under a legal process or from the
institution of legal proceedings wherein the court’s power over the property is
recognized and made effective.
 This kind of jurisdiction is referred to as in rem jurisdiction in contrast to in
personam jurisdiction
 Another form of jurisdiction is quasi in rem which affects only the interests of
particular persons in the thing.
III. Jurisdiction over the subject matter
The test of jurisdiction is whether or not the law vests upon the tribunal the power to enter
upon the inquiry.
JUDICIAL JURISDICTION

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One of the scopes of private international law is judicial jurisdiction which court can exercise
jurisdiction over certain case when certain case involves foreign elements. Judicial
jurisdiction is the power of court to decide on a matter.
Jurisdiction is classified into three categories. The First one is material jurisdiction which
level of court or hierarchy of court has a jurisdiction to entertain a certain case. The second
one is local jurisdiction. It is about the place which court has power to see certain case. The
third one is judicial jurisdiction. This is the power of the court in particular state to render
judgement.
Basis of Jurisdiction
What is the ground for a court to exercise a jurisdiction? Basis of jurisdiction is not the same
in all legal systems. For example, the primary base for jurisdiction in civil law legal system is
domicile of the party particularly the domicile of the defendant, while the common law legal
system emphasize the physical presence of the defendant. There are other grounds to compare
the two legal system of in judicial jurisdiction. This domicile base goes in line with the
theories like personal law theory and nationality theory. Personal law theory and nationality
theory provide that we have to see the citizenship or the domicile of the parties particularly
the defendant. If the defendant is a foreigner, we have to apply the law of that particular
defendant.
The Power or Territorial Theory
This theory provide that we have to see that when the jurisdiction of that particular person in
which stays or resides or a certain activity has taken place. If the defendant was in America
according to common law legal system, the American courts can exercise their jurisdiction.
This is one of the bases for judicial jurisdiction. So, it is the power of state or government to
exercise jurisdiction to compel any defendant who is in its boundary even if for temporarily.
This goes in line with mainly with territoriality theory. This is tradition of common law legal
system mainly. Compelling the defendant physically arresting and bringing before the court
was common and long abandon with respect civil cases in common law legal system. In now
days summon is served.
The other thing is power theory relate with decision in terms of the relationship the person or
thing with the forum. The weakness of this theory is that if for example the person enters into
Uganda without intention in transit to Kenya can be compelled. So, it is harsh and unfair for
civil case. But, it is practiced as a base of judicial jurisdiction in most countries in common
law legal system. The main assumption with respect to this theory is the enforcement of
judgement. But, there is problem with respect to enforcement of judgements. The first
limitation is that the enforcement of judgements logic works only when the defendant has
sufficient property in the rendition forum. The second limitation is that because of the nature
or procedure of rendering a judgement I.E completion sometime particularly for who
accidentally enters into that territory, there is less probability of recognition and enforcement
judgement by other state. But, in federal state it is workable because for example in America,
other state is expected to give full faith means recognition and credit to the rendition of other
state.

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Minimum Contact
This theory is also common in common law legal system. This is theory is somehow liberal
when is compared with the power or territorial theory. It is a complementary to the power or
territorial theory because power or territorial is not mechanical in sense that it is simply
compel certain defendant who enters to that jurisdiction. But, in minimum contact, entering to
a certain jurisdiction is not sufficient enough by itself. There should be at least minimum
contact with state. The theory is the result of the jurisprudence of American Supreme Court.
The term minimum contacts theory is found in civil procedure law of America. This law
determines where appropriate for a court in one state to assert to personal jurisdiction over a
defendant from another state. So, minimum contacts theory is relevant only with personal
jurisdiction. Personal jurisdiction is related to the parties themselves. The supreme court of
U.S.A decided a number of cases and redefined the principle of minimum contact that it is
unfair for a court to accept as a jurisdiction over the party unless that party contact with the
state in which that court say that the party could reasonably to be in court in that state.
Additionally, this jurisdiction must not offend the traditional notion of fair play and
substantial justice. This is related with particularly the evidence to defend. So, in first place,
procedurally it should be fair. Secondly, substantial justice means the product of the decision
should be fair. So, if you compel a defendant who is the citizen of or domiciliary of other
country in America, it is difficult to achieve these things particularly fair play and substantial
justice. Minimum contact is exclusively related with personal jurisdiction. So, a none resident
defiant has minimum contact with forum state, first if they have direct contacts with the
forum state. Second, how the contact with the resident of that state. Thirdly, place of the
product into the 3 mode of commerce say that it reaches the forum of the state. Fourthly, he
could be foreigner. But, if this defendant gives certain service to that residence state, we can
say he established minimum contact. Fifthly, having a non-passive web site which is viewed
in that state.
Fairness Theory
When we say fairness or justice, for some particularly for utilitarianism, fairness is increasing
the happiness of the majority. For others, fairness or justice is protecting human or individual
rights. In this context fairness is about the individual particularly the defendant. The decision
of court should be fair to both parties. This theory approaches the problem of judicial
jurisdiction from varies perspectives.
This theory requires the forum state to try a case when it is convenient, fair and just to the
parties. It is based on the assumption of that a resolution of a dispute based on fairness first
guarantees recognition of that judgement elsewhere. There are 3 relational circumstances for
fairness. The first one is that the relationship between litigants to the forum. Second, the
relationship between the underlined controversy and the forum. Third, the controversies or
substantive relationship to the forum. So, we have to see relational issues in order to
determine whether that is fair or not. The fourth is that domicile, residence, nationality, as
based of jurisdiction. Benefit burden of rational. The fifth, the person lively to be in
convenience in its domicile forum.

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Basis for Jurisdiction –Uganda
Personam

 As long as a person is served with summons to file a defence within Uganda

Eastern and Southern African Trade and Development Bank V. Hassan Bassajabalaba CS
512/2006
Ruby General Insurance Co. Ltd V General Land and Insurance Agencies LTD [1963]EA
154
Traditional justifications

 Service out of jurisdiction of a summons or notice of summons

CPR 1964 Order V, r 22(a-h)

Alemayehu Degafu V Kim Bowerman [1994] Kam. LR 644

 Companies resident in Uganda

Wigglesworth Clearing Ltd v Trago (U) LTD [1999] Kam. LR 758

Consent or Submission or Forum Selection Clause
This is relevant in contract. Parties can select the jurisdiction and the law. There are two stage
in which forum can be selected. The first stage is that before submitting the case to court
when you conclude a contract. This goes in line with party autonomy theory. The advantage
is that it enables the parties to escape the harshness or inconvenient place of trial. It also
minimizes cost. The second is after submission of case. If the defendant oppose, it is
considered to be given consent. Bringing the case to certain indicates the consent of the
parties. The consent can be made before assuming jurisdiction or after the case has brought
before the court. This means, consent can be impliedly or expressly.
A court, legally speaking, can be with competence of judicial jurisdiction. However, bearing
in mind of other extra-legal considerations, it may not be the appropriate one. In other
words, there are some restrictions on the exercise of same. Restraints on the exercise of
jurisdiction are of enormous practical importance in conflict of laws. The restraints (stay of
proceedings and/or declining of jurisdiction) refer to the situation where a court which has
jurisdiction refuses to exercise it. However, it must be distinguished from the situation where
the rules on jurisdiction are not satisfied and a court, hence, dismisses the action on the
ground that it has no jurisdiction. Of course, in both situations, the result is the same: the
court refuses to try the action. The major grounds for a declining of jurisdiction that are
subject of discussion under this section includes: 1) Forum non convenience, 2) Pendency
and 3) austere clauses
Forum Non-convenience

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Forum non convenience can be defined as a general discretionary power for a court to decline
to exercise a possessed jurisdiction on the basis that the appropriate forum for trial is abroad
or that the local forum is inappropriate. In all cases in which the doctrine of Forum non
convenience applies, it presupposes at least two forums in which the defendant is amenable to
processes, the doctrine then establishes certain factors for choice between them.
The criteria which a court may employ in exercising its discretion are dependent upon the
courts' view. For example, English and Scottish courts have emphasized the convenience of
the parties. In the leading case, Spiliada Maritime Corp. V. Cansulex ltd, the British House of
Lords adopted the basic principle that a stay will only be granted on the ground of Forum non
convenience where the court is satisfied that there is some other available forum, having
jurisdiction, which is the appropriate forum for trial of the action, i.e. in which the case may
be tried more suitably for the interests of all the parties and the ends of justice.
The USA version of the doctrine of forum non convenience is too wide in the sense that the
courts consider public and private interest factors to weigh in determining whether a motion
to dismiss on the ground of forum non convenienceis appropriate.
The private interest factors include:
1. relative ease of access to sources of proof
2. availability of compulsory processes for attendance of unwilling,
3. the cost of obtaining attendance of willing, witnesses;
4. All other practical problems that make trial of a case easy, expeditious and
inexpensive.

The public interest factors include:

1. administrative difficulties from court congestion;
2. local interest in having localized controversies decided at home,
3. avoidance of unnecessary problems in conflict of laws or in the application of
foreign law
4. and the unfairness of burdening citizens in an unrelated forum.

Generally, the court must consider the following factors.

1. The location for potential witness.
2. The location relevant evidences and records.
3. Cost.
4. Availability of adequate alternative forums for plaintiff.
5. The Expeditious use of choice of law applicable to the judicial.
6. The question of public policy.

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Once a case is dismissed on grounds of forum non convenience either to the avail of one or
both, the plaintiff will be forced to pursue his action in the more convenient forum. This may,
however, create serious problem to the plaintiff. Since the defendant cannot be compelled to
submit himself to the jurisdiction of the convenient forum, he may out of fraud resist to go to
that forum (when his physical presence is required). Here, the question is what would be the
remedy of the plaintiff, can he reinstitute an action in the forum state (which had dismissed
his action on grounds of forum non convenience) where the defendant is amenable to its
jurisdiction.
Generally, one of the important questions which a court should resolve before dismissing an
action through forum non convenience is whether there exists a convenient alternative forum
to which the defendant is amenable. If the court doubts this, it may not dismiss the action, or
alternatively, it may determine for stay until assured that the defendant will not resist
attempts to be sued in the more convenient forum.
As a matter of doctrine, forum non convenience neither entails a res judicata effect nor does
exclude it. Courts may at their own discretion allow reinstitution of the same action when, for
instance, the defendant cannot be subjected to the jurisdiction of the convenient forum, or that
the period of limitation for the action has lapsed in the calculation of that forum. On the other
hand, they may refuse to entertain the same action which they dismissed it on forum non
convenience groundless. But such courts could not be expected to be lenient in dismissing an
action. All that can be said about the doctrine of forum non convenience is that it is not
capable of single version both as regards to its contents and effect. Having said that, let us
discuss the major explanations behind the doctrine of forum non convenience and the
critiques forwarded against it.
The doctrine of forum non convenience is not explicitly adopted by the non-Common Law
countries; it is the Common Law tradition which is responsible for its development .
According to the Common Law jurists, the doctrine of forum non convenience is regarded as
fulfilling the following roles:
As an Antidote to Excessively Wide Bases of Jurisdiction
In a theory of jurisdiction based on 'power', a forum state can assert jurisdiction in personal
cases on the basis of the transient or causal presence of the defendant in the forum. There is,
thus, an obvious risk of injustice. At its worst, the plaintiff may commence an action in a state
which has been deliberately chosen because of its inconvenience to the defendant. What
forum non convenience does in this case is that it in a way lessens the harshness of transient
rule of jurisdiction or, in other words, it serves as an antidote to an excessively wide basis of
jurisdiction.
Providing Flexibility
Bases of jurisdiction in common law are not only wide; they can also be crude, sometimes
being based on a single, perhaps fortuitous connection with the forum. Contrary to such a
linear approach, forum non convenience provides flexibility by enabling a court to consider a
wider range of factors which come within the tenets of convenience.
Preventing Forum Shopping

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The incidence of forum shopping occurs where a plaintiff is provided with more than one
forum to be chosen by his own calculus of interest. Such system is likely to expose the
defendant into a vexatious position because his opponent may with a view to weakening him
institute an action in an inconvenient forum. The problem of forum shopping is acute
particularly in US and England, where their forum awards a higher damages including in
many cases punitive damages; possibility of extensive pre-trial discovery, and a very wide
jurisdiction rules which allow trial. Perhaps the major role of forum non convenience is to
restrict the plaintiff into a convenient forum. Thus, in a system where it operates, forum
shopping would no more be an issue because the plaintiff would be forced to go into the
appropriate forum.
Critiques against forum non convenience
The major criticism against forum non convenience is that it poses a greater potentiality for
abuse by courts exercising their discretion. A judge may attach much weight to some factors
with intent to affect the interest of one of the parties.
The doctrine permits an additional and lengthy hearing before the final [Link] plaintiff's
problem is further complicated by uncertainty as to what makes a forum appropriate. A
doctrine phrased in terms of "vexatiousness, and inconvenience" makes accurate prediction
difficult.
And a judge might be persuaded of his courts unsuitability less by the circumstance of the
case than by his own overcrowded calendar.

Pendency
Pendency refers to a situation where parallel proceeding involving the same parties and cause
of action are continuing in two different states at the same time. There is an obvious risk that
if the proceedings continue, the courts of different states may hold an irreconcilable
judgment. In order to avoid this problem, many states have adopted pendency rules as a
ground for a discretionary or mandatory declining or suspending of jurisdiction. However,
there is no uniformity as to the basis for pendency rule. It may be based on forum non
convenience grounds; or mechanical first seized approach, or a recognition prognosis. Let us
see them one by one.
In some states, such as, Britain, Australia and Canada, pendency is not a doctrine in its own
right; it is regarded as being overall a facet, albeit, an important one of the doctrine of forum
non convenience . In such cases, then the risk of irreconcilable judgments may not alone
suffice for the courts to decline jurisdiction. Be that as it may, considerable weight may be
given to the pendency factors because of the well recognized unsuitability of allowing the
two sets of proceedings to continue. Under English law, a considerable weight is given to
pendency factors if the foreign forum has made substantial progress in the proceeding, which
action started first being irrelevant. However, pendency rules based on the forum non
convenienceapproach faces the same limitations that are inherent to the doctrine of forum non
convenience itself, as discussed above.
The First Seized Approach

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This approach requires the courts of the forum to defer to the courts of a foreign state if the
latter are first seized of the proceedings. It is a very simplistic approach because courts will
not engage into a painstaking exercise of weighing various factors, as is the case in the
doctrine of forum non convenience. This approach is dominant in the Western Europe.
Perhaps the well-known example of this approach can be found in the Brussels and Lugano
Conventions on Civil and Commercial Matters, which provide that where proceedings
involving the same cause of action and between the same parties are brought in the courts of
different contracting state's any court other than the court first seized shall of its own motion
stay its proceedings until such time as the jurisdiction of the court first seized is established.
Where the jurisdiction of the court first is established, any court other than the court first
seized shall decline jurisdiction in favour of that court.

This provision, however, does not answer the question: when is a court deemed to be seized
of proceedings? Normally, the choice is between the moment when the document instituting
the proceeding is filed with a local court and the latter moment when this document is served
on the defendant. In a number of countries the procedural rules do not give a clear answer.
Some states lean on the position that courts are seized of jurisdiction when the proceedings
are served on the defendant. Other states, however, emphasize on the filing of an application
of summons with the court, or if summon is not necessary, when a claim is presented to the
court.
The mechanical first seized approach is usually opted for its virtue of simplicity. But there are
considerable disadvantages which ensue from its operation. The following are the oft-quoted
criticisms against the mechanical first seized approach.
Firstly, if you have a definition in terms of ‘same parties and cause of actions’, there is an
obvious temptation for a party to evade the pendency provision by adding another party of
another cause of action; secondly, which court is first seized may be an accident of timing.
Moreover, actions may be started contemporaneously. Thirdly, the first seized rule, far from
acting as a disincentive to parallel proceedings, acts as a positive incentive to this. It leads to
an unseemly race by the parties to be the first to commence proceedings. And, fourthly, the
lack of uniformity over the question when a court is seized of proceedings poses a difficult to
a forum state in working out when a foreign court, under its procedural rules, is so seized, and
there is always the risk of getting this wrong.
Recognition Prognosis
According to this approach a court declines jurisdiction if the action abroad is likely to lead to
a judgment which is recognizable in that court. This method of dealing with the problem of
pendency is prevalent in Western European states, i.e., in non-convention cases. There is a
disparity on the issue whether the foreign forum must have been earlier seized of the
proceedings. Under the Hague Convention on Recognition and Enforcement of Foreign
Judgments, the only question that a forum should resolve is whether the action pending
abroad is recognizable under its law, it is not necessary that the foreign forum was first seized
of the proceedings. In contrast to this, the French and German position is that for the

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recognition prognosis to apply, the foreign forum must have been earlier seized of the
proceedings. The Swiss position seems a different arrangement in the sense that it does not as
a rule require the satisfaction of the first-seized rule, but in furtherance to the condition of
'recognisability' it puts that the foreign forum must be expected to resolve the case within a
reasonable time.
Critiques against Pendency
[Link] the foreign judgment is not recognizable, the parallel proceedings will be allowed to
continue. But this will create additional expense and inconvenience to the parties.
[Link] is not easy to predict whether a foreign judgment will be recognized in the forum. There
is a particular difficulty with certain defences, such as public policy, which can only properly
be considered after the foreign judgment has been granted.
[Link] happens if subsequently it turns out that the foreign judgment cannot be recognized?
German law, somehow, avoids this problem by adopting a procedure of initially suspending
rather than dismissing local proceedings. Dismissal will only take place once it is apparent
that the plaintiff no longer has a need for domestic legal protection. Swiss courts also have
adopted a procedure of only suspending proceedings and do not decline jurisdiction.

Ousting Jurisdiction by Agreement

The negative implication of forum selection clause in an agreement is exclusion of forums
which could have exercised jurisdiction had it not been for the parties’ agreement to opt
otherwise. To put it in other way, if parties to a contract confer jurisdiction to a forum state,
say X, other states are, at least theoretically, precluded from asserting jurisdiction over the
parties for a dispute arising from the contract, no matter whether one or both of the parties are
domiciliary or not.
As far as the effect of ousting clause (i.e. negative implication of forum selection clause) is
concerned, the Common Law and Civil Law countries stand in different positions. In the
former, there is a power to decline jurisdiction but this is discretionary, and a court can
nonetheless, allow the local proceedings to continue despite the parties agreement on trial
abroad. In exercising this discretion the court will take into account a number of
considerations which are essentially the same to those factors under forum non convenience.
But, since the Common Law has no intention of eroding the sanctity of contract, a local
forum needs to be furnished with stronger reasons for asserting jurisdiction over parties who
have ousted it by agreement. For example, the Israeli court would assert jurisdiction if it is
shown that the plaintiff is unable to bring his action abroad or would be faced with clearly
demonstrable discrimination.
In Civil Law jurisdictions, a local court cannot try a case where there is a foreign choice of
jurisdiction. The declining of jurisdiction is compulsory. Under German law, for instance, the
effect of a foreign choice of jurisdiction agreement is the ex officio dismissal of the local
claims as inadmissible. But this does not mean that every forum selection clause produces the
same effect. In order to be enforced by the recognition forum, the agreement has to satisfy
certain requirements provided under the laws of the forum state.

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Uganda-Case Study
Stay of Proceedings S.6 Civil Procedure Act
American Express International Banking Corp. V Atul [1990-4] 10
Baxi Vs The Bank of India Ltd [1966] EA 130

 Submission of parties to exclusive jurisdiction of foreign courts

It is quite common for parties in contracts to provide for the law applicable & the forum in
the event of disputes. These are held largely on the basis of freedom of contract even where
jurisdiction is granted to a foreign court or a foreign law is stated to be applicable in the
transaction. However, the mere fact that a different law is provided as applicable does not in
& of itself oust the jurisdiction of the H.C because the H.C can rely on experts in the law of
that other country to apply that law to a dispute being handled. That is also dependent on
where the breach occurred, where the subject matter is located, or where the defendant
resides etc. The H.C jurisdiction will only be ousted where the contractual matter confers
exclusive jurisdiction to a court of another country.

In Huadar Guangdong Chinese Co Ltd v Damco Logistics Uganda Limited, the parties in
their agreement provided that and any claim or dispute arising out of or in connection with
the services in respect of services provided anywhere else in the world, are subject to English
law and the exclusive jurisdiction of the English High Court of Justice in London. The
defendant therefore raised an objection that a Ugandan court had no jurisdiction over the
dispute.
It was held that a clause to submit to the exclusive jurisdiction of the foreign court is
enforceable by the High Court of Uganda. However, the High Court does not lose its
jurisdiction to entertain the action if the Plaintiff can show some just cause why the
proceedings should not be stayed or dismissed. That the court would use the same grounds
for refusal of referring the matter to arbitration that is where the agreement is null and void,
in operative or incapable of been performed. In this case, court found no such grounds and
dismissed the suit leaving it to the plaintiff to refer the dispute to exclusive jurisdiction of the
foreign court if he so wished.
The Court of Appeal justices in Larco Concrete Products Ltd versus Transair Ltd [1988 –
1990] HCB 80 held that in spite of the fact that the contract was made in England, it was not
a sufficient factor to oust the jurisdiction of the High Court unless it has been stipulated in the
agreement to that effect in no uncertain terms
Uganda Telecome Ltd V Rodrigo Chacon t/a Andes MA 337/08

 Where the chosen law of applicable to transaction is foreign – jurisdiction is not

necessary ousted of the court.

Eastern and Southern African Trade and Development Bank v Hassan Basajjabalaba CS
512/2006

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World Population Foundation V Uganda Youth Anti Aids Asscoaition [2003] Kam. LR 287
Larco Concrete Ltd V Transair Ltd CA No.3 1987
Arbitration clauses

• The other aspect comes out with how the High Court handles
Arbitration proceedings as an aspect of Alternative Dispute
Resolution mechanisms.

Under arbitration the parties agree that disputes arising out in the context of
their contract, will be resolved in a certain way through arbitration. The
arbitration agreement does not oust the jurisdiction of the H.C. specifically to
enforce the arbitration agreement & court to give interim measures of
protection for purposes of upholding the arbitration agreement. S. 1 & 6 of the
Arbitration & Conciliation Act. Nevertheless, the High Court in exercise of its
constitutional and statutory jurisdiction is empowered either to dismiss the suit
or to refer the parties to arbitration.

In Power and City Contractors Ltd v LTL Project (Pvt) Ltd Counsel for the respondent
raised an objection to court’s continued entertainment of Civil Suit 29 of 2011 and Misc.
Application No. 62 of 2011 on grounds that the parties had by agreement undertaken to refer
disputes arising out of their contractual relationship to Arbitration and that as such court is
enjoined by law to refer the matter to arbitration in accordance with the parties agreement.
It was held that it was not accurate for the parties to seek to oust the jurisdiction of court
which should always be maintained.
That Proceedings must be before a court before it considers referring it to
arbitration. This presupposes that pleadings are completed before the
issue of arbitration arises. Thereafter it becomes mandatory to refer such a
matter to arbitration unless valid exceptions exist. This court therefore
has jurisdiction to receive a suit even if the agreement binding the parties
has an arbitration clause. This is what can enable it to refer the matter to
the arbitration.
In Babcon Uganda Ltd v Mbale Resort Hotel, the Supreme Court held that when the High
Court is hearing an application arising from an arbitral award it does not exercise its original
jurisdiction but is exercising “other jurisdiction” conferred by the Arbitration and
Conciliation Act, and as such its decision is not appealable as a matter of right to the Supreme
Court.
The High Court’s territorial jurisdiction is limited to Uganda, although parties may agree
even in the event of matters conducted out of Uganda that the H.C will handle any
disputes arising out of the same.

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Ssebagala & Sons Electric Centre v Kenya National Shipping Lines, 2; in this case the
plaintiffs sued the defendant for breach of a contract arising from failure of delivery. The
plaintiff’s case was that it contracted the defendant to transport its goods from the United
Kingdom to Kampala via Mombasa. The goods were to be handed to a clearing agent
appointed by the plaintiff. When the goods arrived at Mombasa, the Kenyan Ports Authority
released them to another company. And as a result the goods were lost. The plaintiff sued the
defendants in the High Court of Uganda at Kampala. The issue was whether the court had
jurisdiction to hear the suit.
It was held that following the provisions of S.15(3) of the Civil Procedure Act, the question
of whether or not a court has jurisdiction in a matter arising from a contract is dependent on
where the cause of action arose in terms of where the contract was made, or where it was
performed and completed and where payment was effected. In this case, the contract of
carriage of goods was completed by delivery of the goods to Kampala, payment was made in
Uganda through a local bank and as such, the court had jurisdiction to decide the matter.
Read also
National Social Security Fund v Alcon International LTD CA 2/2008
Shell (u) ltd [1997]Kam. LR 250
Fulgesio Mungereza V Pricewaterhouse Coopers Africa Central [2004] Kam. LR 258

Limitations of Jurisdiction
There are instances in which express limitations are placed on the competence of a court to
adjudicate a claim. The effect of such limitations on jurisdiction is to render the court
incompetent to hear an action otherwise properly brought before it. The limitations are often
grounded in public policy or in fulfillment of international obligations. The limitations may
be in respect of parties to the action, the cause of action itself, or even the relief sought, and
may be a creature of statute or the common law.
a) Theory of Comity and Jurisdictional Immunities
The application of foreign legal systems in cases involving foreign element is proper because
their non-application would constitute a disregard of foreign sovereignties, a lack of comity
towards foreign states.
The Diplomatic Privledges Act 1965 gives effect to the viena declaration on Diplomatic
relations in respect on International Organisation, it has been held that on the basis of a strict
interpretation of their founding treaties , the East African Development Bank and the
International Finance Corporation enjoy absolute immunity under the Ugandan Law.
See- East African Development Bank V Blueline Enterprises Lt, CA 110/2009
Humphrey Construction Ltd v Pan African Postal Union Mic Case 8/2007

2 HCCS No 431 of 1999 (1997-2001) UCLR 388

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Exceptions to State Immunity

(i) Proceedings in which the State has submitted to Court’s Jurisdiction.

Under article 32 of the Vienna Convention on Law of Diplomatic Immunity which is
replicated in Schedule I of the Privileges and Immunities Act, the immunity from
jurisdiction of diplomatic agents and of persons enjoying immunity may be waived
by the sending State. The waiver must always be express.
Furthermore, the initiation of proceedings by a diplomatic agent or by a person
enjoying immunity from jurisdiction under Article 37 shall preclude him from
invoking immunity from jurisdiction in respect of any counter-claim directly
connected with the principal claim.
At common law, state immunity could be waived by or on behalf of the foreign state.
The waiver was to have taken place when the court was asked to exercise jurisdiction
and could not be inferred from a prior contract to submit to the jurisdiction of the
court or arbitration.3 This has been modified by statutes which may allow imputation
of a waiver through a prior agreement. The state will also be deemed to have waived
its immunity if it has intervened or taken steps in the proceedings save when the
steps are only for the purposes of claiming immunity or asserting interest in
circumstances such that would entitle the state to immunity or in ignorance of fact of
the entitlement to immunity.
It has been held by the English Court that once a state has waived immunity, it will
be treated just as any other litigant in such matters as security as to cost (in Republic
of Costa Rica v. Erlanger4), and even in disclosure of documents (in US v. Wagner.5)

(ii) Proceedings Relating to Commercial Transaction or Contractual

Obligation. An action may be brought in court in Kenya relating to any professional
or commercial activity exercised by the diplomatic agent in the receiving State
outside his official functions. Commercial transactions include contracts for supply
of goods and services; loans or transactions for the provision of finances (e.g.
commercial guaranteed); and any other transaction that the state engages in otherwise
than in exercise of its sovereign power. E.g. contracts for supply of arms will be
included in the exception and thus a foreign state can be sued in the Kenyan Courts.
(iii) Proceedings in Relation to Contract of Employment between State and
Individual – When there is an employment dispute between the diplomatic mission
and its employees, an action may be commenced in the Kenyan court. This however
does not apply if the employee is the national of that foreign state or is not habitually
resident in Kenya.
(iv) Proceedings in Respect of Death, Personal Injury, Damage or Loss to
Personal Property – When death, injury or loss of property is caused by a diplomat,

3 Dicey Morris & Collins, The Conflict of Laws (14th edn, Sweet & Maxwells 2006) 285.
4 (1876) 3 ChD 62 (CA).
5 (1867)LR 2 Ch. App 582.

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 action may be brought against the officer responsible to recover for the loss
occasioned.
(v) Proceedings in Immovable Property – Action may be commenced in
respect of interest of the foreign state in its use or possession of immovable property
in Kenya unless the property is held on behalf of the sending State for the purposes
of the diplomatic mission.
(vi) Proceedings in relation to the breach of intellectual Property Rights -
Action may be commenced against a diplomat for the breach of intellectual property
rights.
(vii) Proceeding in respect to incorporated or unincorporated Bodies
Registered in the Country - unless the bodies are operating in Kenya by virtue of
the Statehood of the foreign country, courts will have jurisdiction over matters
related to the incorporated and unincorporated foreign bodies operated by a foreign
state in Kenya. E.g a suit may lie against Oilibya in Kenya notwithstanding that it is a
Libyan Corporation owned by the Libyan state.
(viii) Dispute relating to Arbitral Agreements - Where the foreign state in a prior
contract has agreed to submit the matter to arbitration unless it is Arbitration
Agreement between States, then the courts may be seized of the matter under the law
of arbitration.
(ix) Proceedings Related to Tax Liability – article 34 of the Vienna
Convention as adopted in Schedule I of the Privileges and Immunities Act
exempts diplomatic agents from all dues and taxes, personal or real, national,
regional or municipal.
However, this immunity does not extent to:

(a) Indirect taxes of a kind which are normally incorporated in the price
of goods or services;
(b) Dues and taxes on private immovable property situated in the territory
of the receiving State, unless he holds it on behalf of the sending State for
the purposes of the mission;
(c) Estate, succession or inheritance, duties levied by the receiving State,
except in the case of the estate of a deceased diplomat;
(d) Dues and taxes on private income having its source in the receiving
State and capital taxes on investments made in commercial undertakings in
Kenya;
(e) Charges levied for specific services rendered;

(f) Registration, court or record fees, mortgage dues and stamp duty, with
respect to immovable property except for properties of the sending state.
(x) Proceedings in Succession Causes – An action may be brought in relation to

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 succession in which the diplomatic agent is involved as executor, administrator, heir
or legatee as a private person and not on behalf of the sending State.
(xi) Execution Proceedings – Execution of a legal obtained decree on those areas
where there is no immunity is valid provided that the measures concerned can be
taken without infringing the inviolability of his person or of his residence.
However, waiver of immunity from jurisdiction in respect of civil or administrative
proceedings shall not be held to imply waiver of immunity in respect of the
execution of the judgment, for which a separate waiver shall be necessary.

b) Capacity to Sue
The question often arises of whether a person has the capacity to invoke the jurisdiction of a
court. This may arise in the context of persons such as alien enemies, foreign companies,
foreign liquidators, trustees and other representatives. In Uganda as well as Kenya and
Tanzania for example, an alien enemy residing in the country with the permission of the
president may sue in the respective courts. (see CPA S.57 (1) (2).
The general position is that a juristic person created foreign law would recognized by the
court for purposes of enabling that person invoke the jurisdiction of the respective court.
See also the CPA s. 58-every court shall take judicial notice of the fact that a foreign state
has or has not been recognized by Uganda. The object of the suit is in most cases is to
enforce a private right vested in the head of that state or in any other officer of that state in
his or her public capacity.

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