Wakilii

Kansiime v Himalaya Traders & 7 Ors (Civil Suit No. 132 of 2011 Consolidated With Hccs No. 57 of 2011)

High Court · [2017] UGHCLD 201 · 2017 Judgment for Defendants AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration of ownership and permanent injunction, consolidated with a related suit
Decision
Plaintiff declared a trespasser, ordered to give vacant possession to defendants or face eviction

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the plaintiff failed to prove he occupied the suit land since 1994 or that he was a bona fide occupant or customary tenant. The court found the plaintiff was a trespasser occupying the land illegally and that he had not established any lawful interest. The defendants were found to be lawful registered proprietors who acquired their leases properly from Uganda Land Commission without fraud. The court dismissed the plaintiff's suit with costs and ordered him to give vacant possession.

Outcome

Plaintiff declared a trespasser, ordered to give vacant possession to defendants or face eviction

Facts

The plaintiff claimed to have occupied approximately 3.0 acres of land at Plots 20-30 Saddler Way Lugogo Bypass Naguru since 1994, asserting he acquired customary interest as a bona fide occupant. He obtained a decree in HCCS No. 284 of 2008 declaring him owner of approximately 2.0 acres. Despite this decree, Uganda Land Commission granted leases on the suit land to the defendants. Evidence showed the plaintiff purchased less than one-third of an acre in 1994 and expanded the land only in 2008 by compensating other occupants and reclaiming wetland. When defendants applied for leases in 2010, multiple witnesses testified the land was vacant, marshy, and bushy. The plaintiff paid UGX 280,000,000 for reclamation and operated a car washing bay. The suit land is registered freehold to Uganda Land Commission, restricted for use by Ministry of Education, Kololo SSS.

Issues

  1. Whether Kansiime K. Andrew had occupied and utilised the suit land since 1994.
  2. Whether the plaintiff became a customary tenant or bona fide occupant of the suit land.
  3. Whether the 1st to 6th defendants obtained their titles in the respective plots through fraud.
  4. Whether the 7th defendant committed any fraud in the issuance of the respective certificates of title.
  5. What reliefs are available to the parties?

Orders

  • The plaintiff is a trespasser and has no lawful interest whatsoever in the suit land.
  • The plaintiff's occupation and continued stay on the suit land is illegal and unlawful.
  • The 1st, 2nd, 4th, 5th and 6th defendants are the lawful registered proprietors of their respective plots of land in the suit land as reflected in their respective lease certificates of title.
  • The 1st, 2nd, 4th, 5th and 6th defendants are entitled to quiet possession of their respective plots of land without any disturbance or interference from the plaintiff or such other person claiming interest under him.
  • The plaintiff is ordered to give vacant possession of all the suit land to the defendants as reflected in their respective lease certificates of title; the failure of which he shall be lawfully evicted there from.
  • The plaintiff shall pay costs of the suit.

Rules and key headnotes

Customary Tenure — Requirements for Establishment — Need for Proof of Customary Rules and Community Recognition
Customary tenure applies to a specific area and specific group of people; it is not sufficient for a person merely to carry out activities on land for however long the period. A person claiming to be a customary tenant must prove that in that area it is a custom that whoever carries out certain activities for a specific period of time becomes a customary owner.
Proof of Customary Law — Expert Evidence Required Where Custom Not Judicially Noticed
Where customary law is neither well-known nor documented, it must be established for the court's guidance by the party intending to rely on it. As a matter of practice and convenience in civil cases, relevant customary law, if it is incapable of being judicially noticed, should be proved by evidence of expert opinion adduced by the parties.
Customary Tenure — Prohibition in Urban Areas under Public Land Act 1969 and Land Reform Decree 1975
Section 24(1)(a) of the Public Land Act 1969 specifically prohibited customary tenure on land in urban areas. Under the Land Reform Decree 1975, all land in Uganda was declared public land to be administered by Uganda Land Commission. The Decree allowed the system of occupying public land by customary tenure only at sufferance, and any such land could be granted by Uganda Land Commission to anyone in accordance with the Decree. A person could not acquire fresh customary tenure without applying to prescribed authorities and obtaining approval.
Bona Fide Occupancy — Definition and Requirements under Land Act Section 29(2)
A bona fide occupant is a person who before the coming into force of the 1995 Constitution had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more. A person who acquired land after the 1995 Constitution or who did not occupy land for twelve years prior to the Constitution cannot qualify as a bona fide occupant.
Transfer of Kibanja — Necessity of Registered Owner's Consent — Effect of Transfer Without Consent
Any transfer of Kibanja or customary holding without giving notice to the prescribed authority as registered owner renders such a transfer void. A person who sells land without the consent of the registered owner has no lawful interest in the land which can be passed to a purchaser, and the purported sale is rooted in illegalities and void ab initio.
Fraud — Burden of Proof and Standard Required to Impeach Registered Title
Fraud must be particularly pleaded and strictly proved, the burden being heavier than the balance of probabilities generally applied in civil matters. The party must prove that the fraud was attributed to the transferee either directly or by necessary implication — that is, the transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of such act. A certificate of title is conclusive evidence of ownership and the onus is on the person seeking to impeach the title to adduce evidence proving the alleged fraud to the required standard.
Ex Parte Decrees — Nullity Where Obtained Through Illegal Means or Without Hearing Affected Party
A null and void order or decree, no matter how precisely and technically correct, will be declared null and void not only by the court that rendered the order or decree but in any other court it is presented. An order of court improperly obtained either through fraud or illegal means cannot be left to stand by a court in which it is sought to be enforced. A decision made by a person or authority or body exercising judicial or quasi-judicial power without according the parties affected a hearing cannot stand as such a decision would be contrary to the principles of natural justice.

Legislation cited (13)

Cases cited (17)

  • Struggle (U) Ltd v Pan Africa Insurance Co. Ltd (1990) KLR 46-47
  • Kampala District Land Board & Another v Venansio Babweyaka & 3 Others (Supreme Court Criminal Appeal No. 2 of 2007)
  • R v Ndembera S/o Mwandewale (1947) 14 EACA 58
  • Ernest Kinyanjui Kimani v Muira Gikanga [1965] EA 735
  • Fredrick J.K Zaabwe v Orient Bank & Others (Supreme Court Civil Appeal No. 4 of 2006)
  • David Sejjaaka v Rebecca Musoke (Civil Appeal No. 12 of 1985)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Kisseka Saku v Seventh Day Adventist Church (Supreme Court Civil Appeal No. 8 of 1993)
  • Buwule M v Asumani Mugenyi (Court of Appeal Civil Appeal No. 24 of 2010)
  • Fr. Narsensio Begumisa & Others v Eric Tibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Livingstone M. Sewanyana v Martin Aliker (Supreme Court Civil Appeal No. 4 of 1991)
  • Fam International Ltd & Another v Mohamed Hamid El-Fatih (Supreme Court Civil Appeal No. 16 of 1993)
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Others [1982] HCB 11
  • Sharp v Welefield (1981) AC 173
  • Re: Interdiction of Bukeni Fred (High Court Miscellaneous Application No. 139 of 1991)
  • Education v Rice (1911) AC 179
  • Musinguzi Asaph v Kiruhura District Local Administration (High Court Miscellaneous Application No. 193 of 2011)

Full judgment

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

Kansiime v Himalaya Traders & 7 Ors (Civil Suit No. 132 of 2011 Consolidated With Hccs No. 57 of 2011) [2017] UGHCLD 201 (14 July 2017)
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.