Wakilii

Birungi v Kimbugwe and 6 Others (HCCS No. 193 of 2008)

High Court · [2013] UGHCLD 406 · 2013 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for breach of tenancy agreement and unlawful eviction
Decision
Judgment entered for plaintiff with monetary awards and costs. Defendants ordered to pay within 30 days with execution available on default.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the 1st-3rd defendants' re-entry and eviction of the plaintiff from the suit premises was unlawful and unjustified. The tenancy agreement expressly provided that the remedy for non-payment of rent was to seek legal remedy, not re-entry. The defendants demanded payment before obtaining Letters of Administration and avoided receiving payment when offered. The plaintiff carried out renovations, developments and improvements with the landlord's consent evidenced by applications to KCC for building permits. Judgment entered for plaintiff with awards totalling UGX 919,026,828 including compensatory damages, general damages, lost rental income and payment in lieu of notice.

Outcome

Judgment entered for plaintiff with monetary awards and costs. Defendants ordered to pay within 30 days with execution available on default.

Facts

In 1999, the plaintiff entered into tenancy agreements with Joseph Kayemba Gaaga for premises at Bunga Hill for 15 years to operate an art gallery. The plaintiff carried out extensive renovations, alterations and additions to the dilapidated premises with the landlord's consent, including applying for KCC building permits. The landlord later consented to conversion into a guest house. After the landlord died in May 2007, the 1st-3rd defendants obtained Letters of Administration in October 2007. They demanded payment of rent arrears before obtaining the Letters. The plaintiff expressed willingness to pay but requested proof of proper administration. When the family appeared with photocopies of Letters, plaintiff requested certified copies. The defendants refused and instead evicted the plaintiff on 15 October 2007, claiming non-payment for 2.5 years and misrepresentation as landlord. The suit against the 4th defendant was later withdrawn. The 5th-7th defendants joined the suit but the plaintiff stated he had not sued them.

Issues

  1. Whether the 1st - 3rd Defendants' re-entry into the premises and eviction of the Plaintiff was lawful and justified.
  2. Whether the Plaintiff carried out any renovations, developments and improvements on the suit premises with the approval and authority of the landlord.
  3. Whether the 1st - 3rd Defendants colluded with 4th Defendant to end the Plaintiff's Tenancy.
  4. Whether the 5th, 6th, and 7th Defendants have a valid defence against the Plaintiff.
  5. What are the remedies available to the parties?

Orders

  • Judgment entered in favour of the plaintiff.
  • Shs. 3,000,000 awarded as payment in lieu of notice.
  • Shs. 500,000,000 awarded in general damages.
  • Shs. 215,670,000 awarded as total lost rental income.
  • Shs. 200,356,828 awarded as compensatory damages for taken over property.
  • Defendants to pay costs of the suit to the plaintiff.
  • All awards to be paid within 30 days from date of judgment.
  • Plaintiff entitled to immediate execution process if defendants fail to comply with payment order.

Rules and key headnotes

Landlord and Tenant — Re-entry for Non-payment of Rent — Requirements at Common Law
Before a landlord proceeds under common law to re-enter premises for non-payment of rent, he must make a formal demand of the precise rent due and payable, and such demand must be made by the landlord or his duly authorised agent.
Landlord and Tenant — Re-entry — Where Tenancy Agreement Provides for Legal Remedy
Where a tenancy agreement expressly provides that in the event one party fails or neglects to execute his duties, the other party shall be at will to seek legal remedy, re-entry and ejectment without following that provision constitutes breach of the agreement and is unlawful.
Landlord and Tenant — Forfeiture — Distinction between Condition and Covenant
For any condition broken, a landlord may re-enter and maintain an action for ejectment although there is no proviso for re-entry, but he cannot re-enter for a mere breach of covenant unless it is fortified by a proviso for re-entry.
Landlord and Tenant — Sub-letting — Prohibition Must Be Express
If sub-letting is to be barred, it must be expressly contained in the agreement between the parties and must be construed as a condition. Mere words of agreement do not create a condition so as to give a right of re-entry for breach of such agreement.
Letters of Administration — Locus Standi Before Grant
Before a person obtains Letters of Administration, he has no locus standi to handle affairs concerning the deceased's estate, including demanding or receiving payments owed to the estate.
General Damages — Assessment — Unlawful Eviction from Business Premises
General damages for unlawful eviction from commercial premises should take into account the duration of suffering, the plaintiff's status in society, loss of livelihood, family disintegration, and the defendant's conduct in effecting the eviction. Where the defendant's conduct was egregious and calculated to take over the plaintiff's investments, general damages may be enhanced.
Compensatory Damages — Tenant's Improvements — Valuation Evidence
Where a tenant carries out renovations, alterations and additions to premises with the landlord's consent and is subsequently unlawfully evicted, the tenant is entitled to compensatory damages for the value of those improvements, which may be proved through expert valuation evidence.

Legislation cited (1)

Cases cited (15)

  • Auto garage vs Motokov
  • Mohamed Allibhai v Bukenya Mukasa and Departed Asians Property Custodian Board (Supreme Court Civil Appeal No. 56 of 1996)
  • Shiek Mohamed Bashir vs. Commissioner of Lands (1960) AC 44
  • Molineux vs Molineux (1805) Co. Jac. 144
  • Toms vs. Wilson (1862) 32 LJ Q.B 33
  • Crawley vs. Price LR 10 Q.B
  • Doe vs. Watt & B&C
  • Shaw vs. Coffin 14 C.B.N
  • Crawley vs. Price and Others LR 10 Q.B 302
  • Dr. Denis Lwamafa v Attorney General (Civil Suit No. 79 of 1983)
  • Kuluo Joseph Andrew and Others v Attorney General and Others (Miscellaneous Cause No. 106 of 2010)
  • Mudoi Isaac Abdul Aziz v Attorney General and Mubende District Local Government (HCT-04-LD-MA-0148 of 2006)
  • FREDERICK ZABWE vs ORIENT BANK AND OTHERS
  • National Forestry Authority v Sam Kiwanuka (Supreme Court Civil Appeal No. 17 of 2010)
  • UGANDA DEVELOPMENT BANK-VS- MUGAGA CONSTRUCTION CO. LTD, HCCS 35

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Birungi v Kimbugwe and 6 Others (HCCS No. 193 of 2008) [2013] UGHCLD 406 (3 July 2013)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.