Wakilii

Kasande & 4 Others v Ssentamu (Civil Appeal 52 of 2022)

High Court · [2024] UGHCLD 217 · 2024 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court decision granting plaintiff trespass and eviction orders
Decision
Appeal dismissed; trial court judgment upheld affirming respondent's title and eviction order against appellants

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal and upheld the trial court's finding that the appellants failed to prove they were lawful occupants of the suit land comprised in Busiro Block 427 Plot 164. The evidence showed that the kibanja interest of the late Vubya Hannington was one acre and separate from the suit land purchased by the respondent. Because the appellants were not lawful or bonafide occupants of the suit land, they had no right to the first option to purchase under section 35(2) of the Land Act. The respondent's purchase was lawful and not tainted by fraud.

Outcome

Appeal dismissed; trial court judgment upheld affirming respondent's title and eviction order against appellants

Facts

The respondent purchased land comprised in Busiro Block 427 Plot 164 from Nalongo Norah Namakula and was registered as proprietor. The appellants claimed they were lawful kibanja holders whose late father, Vubya Hannington Semwogerere, had held a kibanja on the suit land since the 1940s. The respondent sued for trespass and eviction. The appellants claimed their late father was given 2.5 acres and that they were entitled to first option to purchase under the Land Act. The trial court found for the respondent. Evidence at trial and locus visit showed that the late Vubya had been given one acre with a house which was separate from and not part of the suit land. The appellants could not show court the location of their claimed kibanja interest on the suit land during the locus visit. The trial court found the appellants were not lawful occupants and granted eviction.

Issues

  1. Whether the trial magistrate properly evaluated the evidence on record.
  2. Whether the appellants were lawful or bonafide occupants on the suit land.
  3. Whether the kibanja belonging to the late Semwogerere Vubya measured only one acre.
  4. Whether the appellants were entitled to the first option to purchase the suit land under section 35(2) of the Land Act.
  5. Whether the trial magistrate erred in dismissing the appellants' counter claim with costs.

Orders

  • Appeal dismissed.
  • Judgment of the Chief Magistrate's Court in Civil Suit No. 122 of 2009 upheld.
  • No order as to costs.

Rules and key headnotes

Lawful Occupancy — Burden of Proof — Kibanja Interest
A person claiming to be a lawful occupant of land must prove on a balance of probability that they lawfully settled on the land and that their occupation falls within the categories defined in section 29(1) of the Land Act.
Tenant by Occupancy — First Option to Purchase — Preconditions
The right of first option to purchase under section 35(2) of the Land Act is available only to a tenant by occupancy. A claimant must lead evidence proving their status as a tenant by occupancy on the suit land before invoking the first option to purchase.
Kibanja Interest — Distinction from Suit Land — Evidence at Locus
Where a party claims a kibanja interest on suit land but fails to identify or demonstrate the location of that kibanja interest during a locus visit, and the evidence shows the kibanja is separate and distinct from the suit land, the claim to lawful occupancy of the suit land fails.
Appellate Jurisdiction — First Appeal — Re-evaluation of Evidence
On a first appeal, the appellate court is under an obligation to rehear the case by subjecting the evidence to fresh scrutiny and re-appraisal before coming to its own conclusion, though it must make due allowance for the fact that it has neither seen nor heard the witnesses.

Legislation cited (6)

Cases cited (9)

  • Nanensio Begumisa and three Others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000)
  • Selle v Associated Motor Boat Co. [1968] EA 123
  • Abdul Hameed Saif v Ali Mohamed Sholan (1955) 22 EACA 270
  • Yusuf Mweseki v Kajubi James (High Court Civil Appeal No. 9 of 2008)
  • Fredrick Zabwe v Orient Bank (Supreme Court Civil Appeal No. 4 of 2006)
  • Prince Keefa Wasswa v Joseph Kiyimba (High Court Civil Suit No. 482 of 2011)
  • Epafuladito Serwadda v Kasozi Stanley And Another (High Court Civil Suit No. 252 of 2009)
  • Nalongo Nalwoga v Salongo Kesi (High Court Civil Appeal No. 84 of 2012)
  • Prince Keefa Wasswa v Joseph Kiyimba (High Court Civil Suit No. 482 of 2011)

Full judgment

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

Kasande_&_4_Others_v_Ssentamu_(Civil_Appeal_52_of_2022)_[2024]_UGHCLD_217_(11_September_2024)
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.