Wakilii

Kasenge v Kyeyune (Civil Suit 578 of 2015)

High Court · [2023] UGHCLD 147 · 2023 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration of ownership and eviction
Decision
Suit dismissed; defendant's kibanja interest upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that a defendant who purchased a kibanja interest from a bona fide occupant before the plaintiff's registration as proprietor of the mailo land is protected by section 35(8) of the Land Act. A change of ownership by registration does not affect the existing lawful interests of a bona fide occupant, and the new owner must respect that interest. The defendant was not a trespasser and the suit was dismissed.

Outcome

Suit dismissed; defendant's kibanja interest upheld

Facts

The plaintiff claimed ownership of land comprised in Busiro Block 383 Plot 2183, Kitende, measuring 4.699 hectares, having been registered as proprietor in August 2006. His predecessor in title, his late mother Enumeri Neggaggasa, was registered in August 2005. The defendant purchased a kibanja on the suit land on 16 June 2002 from Florence N. Lwanga for UGX 5,300,000. The vendor had herself purchased it from the late Ms. Mulumba, who had received it as a gift from her husband. After purchase, the defendant was introduced to the late Neggaggasa, the then registered proprietor, and paid busuulu and kanzu until her death. The defendant took possession by cultivating bananas and constructing a permanent structure. In 2015 the plaintiff brought a trespass complaint to police which was later withdrawn by the DPP. The plaintiff then filed this suit seeking a declaration of ownership, vacant possession, and a permanent injunction. The defendant asserted she was a lawful kibanja owner who had been in possession since 2002, before either the plaintiff or his mother were registered.

Issues

  1. Whether the Defendant is a trespasser on the suit land comprised in Busiro Block 383 Plot 2183, Land at Kitende.
  2. What remedies are available to the Parties.

Orders

  • Suit dismissed.
  • Costs awarded to the Defendant.

Rules and key headnotes

Land & Property — Kibanja Tenure — Bona Fide Occupancy — Protection Against New Owner
A person who purchases a kibanja interest from a bona fide occupant qualifies as a bona fide occupant under section 29(5) of the Land Act and is protected by section 35(8), which provides that a change of ownership by registration, sale, grant, or succession does not affect the existing lawful interests of a bona fide occupant and the new owner is obliged to respect that interest.
Land & Property — Kibanja Tenure — Acquisition Before Registration of Proprietor
Where a defendant acquired a kibanja interest and took possession before the plaintiff or his predecessor in title were registered as proprietors of the mailo land, the defendant cannot be a trespasser because she obtained possession prior to the plaintiff's registration.
Tort Law — Trespass to Land — Standing to Sue — Possession Required
Trespass to land occurs when a person makes unauthorised entry upon land and interferes with another person's lawful possession of that land. At common law, only a person in possession of the land has capacity to sue in trespass.

Legislation cited (3)

Cases cited (1)

  • Justine E.N. Lutaaya v Stirling Civil Engineering Company Ltd (Supreme Court Civil Appeal No. 11 of 2002)

Full judgment

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

Kasenge_v_Kyeyune_(Civil_Suit_578_of_2015)_[2023]_UGHCLD_147_(15_June_2023)
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.