Wakilii

Kakembo v Kabengwa (HCCS 17 of 2020)

High Court · [2022] UGHCLD 136 · 2022 Judgment for Plaintiff — Refund Ordered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for breach of agreement of sale of land, heard ex parte after defendant failed to file defence or attend court
Decision
Judgment entered for Plaintiff with order for refund of purchase money, general damages, interest, and costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The court found the defendant in breach of an agreement to sell land after receiving partial payment of UGX 40 million but failing to hand over vacant possession. Specific performance was denied because a third party occupied the property and had not been joined as a party. The court ordered the defendant to refund UGX 40 million with 18% interest from the date of payment, plus UGX 5 million general damages with 6% interest from judgment.

Outcome

Judgment entered for Plaintiff with order for refund of purchase money, general damages, interest, and costs

Facts

On February 21, 2019, the plaintiff and defendant entered into an agreement for the sale of unregistered land at Katimbo village, Makindye Division, measuring 70ft by 58ft by 70ft with a residential house, for UGX 70 million. The plaintiff paid UGX 30 million on the date of the agreement and UGX 10 million on March 3, 2019, totalling UGX 40 million. Under the agreement, the defendant undertook to hand over vacant possession at execution. The defendant failed to hand over possession and subsequently moved her family to an unknown location. The plaintiff engaged police to locate her without success. At locus inspection, the court discovered the property was occupied by a third party, Kasereka Kamuha Paulin, who claimed to have purchased it from Tumwine Abel in December 2019. The defendant was served by substituted service but did not file a defence or attend court.

Issues

  1. Whether there was breach of an agreement of sale of land by the Defendant?
  2. Whether the Plaintiff is entitled to the remedies he seeks?

Orders

  • Defendant ordered to immediately refund to Plaintiff the sum of UGX 40,000,000 paid as part payment towards purchase of the suit property.
  • Defendant ordered to pay Plaintiff general damages of UGX 5,000,000 for breach of the agreement of sale.
  • Interest at 18% per annum on UGX 40,000,000 calculated from March 3, 2019 until payment in full.
  • Interest at 6% per annum on UGX 5,000,000 general damages calculated from date of judgment until payment in full.
  • Costs of the suit awarded to Plaintiff.

Rules and key headnotes

Breach of Agreement for Sale of Land — Failure to Deliver Vacant Possession
Where a vendor receives part payment under an agreement for sale of land and undertakes to deliver vacant possession but fails to do so and absconds, the vendor is in breach of the agreement.
Pleadings — Departure from Pleadings — Proof of Unpleaded Claims
A party is bound to prove the case as alleged in the pleadings and will not be allowed at trial to set up a case inconsistent with what was pleaded. An allegation raised for the first time at hearing that was not pleaded constitutes a departure from pleadings and cannot be sustained.
Specific Performance — Refusal Where Third Party Rights Affected
An order for specific performance of an agreement for sale of land will be refused where the property is occupied by a third party who was not joined as a party to the suit, as granting such an order would amount to an eviction order against a person who has not been heard, contrary to the constitutional right to a fair hearing.
Remedies for Breach — Refund of Purchase Money
Where specific performance of an agreement for sale of land is not available due to third party occupation, and the vendor warranted in the agreement to refund amounts paid in the event of failure to attain quiet enjoyment, the court will order a refund of the purchase money paid.

Legislation cited (6)

Cases cited (2)

  • Interfreight Forwarders (U) Ltd v East African Development Bank (SCCA No. 33 of 1992)
  • Akisoferi Biteremo v Damscus Munyanada Situma (SCCA No. 15 of 1991)

Full judgment

↓ Download PDF

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

Kakembo_v_Kabengwa_(HCCS_17_of_2020)_[2022]_UGHCLD_136_(22_July_2022)
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.