Wakilii

Kasoya and Another v Kaija and 3 Others (Civil Suit No. 6 of 2015)

High Court · [2023] UGHCLD 49 · 2023 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass consolidated with Chief Magistrate's Court Civil Suit No. 066 of 2015
Decision
Suit succeeded. First three defendants found to be bona fide occupants on 15 acres but trespassers beyond that. Fourth defendant found to be trespasser. Defendants ordered to vacate trespassed portions within six months or be evicted. Fourth defendant given option to pay compensation for 2 acres or be evicted. Exemplary damages awarded against fourth defendant.

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

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

Held that the suit was not time barred as trespass to land is a continuing tort. The first three defendants were found to be bona fide occupants on 15 acres inherited from their father but trespassers on land in excess of that. The fourth defendant was found to be a trespasser on the entire portion occupied. A government surveyor was to be appointed to demarcate the 15 acres. The defendants were ordered to vacate the trespassed portions within six months or face eviction. The fourth defendant was given an option to pay market value compensation for two acres or be evicted. Exemplary damages of UGX 3,000,000 were awarded against the fourth defendant for planting trees in defiance of a court injunction.

Outcome

Suit succeeded. First three defendants found to be bona fide occupants on 15 acres but trespassers beyond that. Fourth defendant found to be trespasser. Defendants ordered to vacate trespassed portions within six months or be evicted. Fourth defendant given option to pay compensation for 2 acres or be evicted. Exemplary damages awarded against fourth defendant.

Facts

The plaintiffs are administrators of the estate of the late Gideon Musana Kacwere, registered proprietor of FRV 29, Folio 2, Mwenge Block 122, Plot 1 Kihooka measuring approximately 641 acres. The late Musana died in 1962. At that time, Ndaula Joseph (father of the first three defendants) had a kibanja of approximately 11 acres on the land and was recognised as such. Between 2005 and 2009, the first defendant, using his influence as LC5 Chairman and later as RDC, went beyond the kibanja and together with his brothers (second and third defendants) trespassed upon the suit land, fenced it, set up homes, and planted trees. The first defendant allegedly carved out over 100 acres for himself. The fourth defendant also trespassed and set up a home. The defendants claimed they were lawful or bona fide occupants having inherited the land from their father and grandfather who had occupied it for decades. Evidence showed that Rubuto Edward, the grandfather, lived on the land before 1968 and was buried there. His son Ndahura Joseph inherited it and the first to third defendants are his sons. The fourth defendant claimed to have inherited his portion from his father who had received it from his grandfather Kasongwire.

Issues

  1. Whether the Plaintiffs' suit is time barred.
  2. Whether the Defendants trespassed on the suit land.
  3. Whether the Plaintiffs are entitled to the remedies sought.

Orders

  • The 1st, 2nd and 3rd Defendants are bona fide occupants in respect of 15 acres originally belonging to Ndahura Joseph s/o Edward Rubuto and cannot be evicted from that portion.
  • The 1st, 2nd and 3rd Defendants are trespassers on suit land in excess of the said 15 acres.
  • The Registrar shall cause a Government Surveyor to determine the 15 acres within 2 months; expenses to be met by the 1st, 2nd and 3rd Defendants.
  • The 1st, 2nd and 3rd Defendants shall vacate and relinquish the trespassed land within 6 months, in default of which an eviction order shall be enforced.
  • The 4th Defendant is a trespasser on the suit land.
  • The 4th Defendant shall pay compensation at current market value to retain 2 acres within 6 months, in default of which an eviction order shall be executed.
  • The 4th Defendant shall pay UGX 3,000,000 as exemplary damages.
  • Permanent injunction restraining the 1st, 2nd and 3rd Defendants from further trespass on the suit land.
  • Permanent injunction restraining the 4th Defendant from further trespass on the suit land.
  • Defendants shall pay costs of the suit.

Rules and key headnotes

Trespass to Land — Continuous Tort — Limitation Period
Trespass to land is a continuing tort. When an unlawful entry on land is followed by continuous occupation or exploitation, proof of such continuous unlawful occupation is sufficient proof of trespass, even if the date it commenced is not proved. The period of limitation runs from the date of continuous trespass, not the initial entry.
Registered Proprietor — Legal Possession — Right to Sue in Trespass
A person holding a certificate of title has, by virtue of that title, legal possession of the land and can sue in trespass. A registered proprietor has legal possession of titled land and bears no burden to prove actual possession of the land in a suit for trespass.
Bona Fide Occupancy — Definition and Requirements — Land Act s.29(2)
To qualify as a bona fide occupant under section 29(2) of the Land Act, a person must have occupied and utilised or developed the land unchallenged by the registered owner or agent for twelve years or more before the coming into force of the 1995 Constitution (8th October 1995), or have been settled on land by the Government or its agent. A person who inherits land from a bona fide occupant also qualifies as a bona fide occupant.
Trespass — Defence of Bona Fide Occupancy — Burden on Defendants
Where defendants plead bona fide occupancy as a defence to trespass, they must prove the size and boundaries of the land they claim to occupy as bona fide occupants. Occupation beyond the established boundaries of the inherited kibanja constitutes trespass to the registered proprietor's land.
Trespass to Land — Intention or Knowledge Not Required
An entry upon another's land is tortious whether or not the entrant knows he is trespassing. It is no defence that the entrant genuinely but erroneously believed the land was his. Uncertainty as to the size of land claimed or the boundaries of an inherited portion does not excuse trespass on registered land.
Exemplary Damages — Breach of Court Injunction
Exemplary damages may be awarded to punish a defendant for unconstitutional, malicious, vindictive and high-handed conduct. Planting trees and constructing a house in defiance of a court injunction is sufficient justification for an award of exemplary damages, as it constitutes an attempt to create evidence during trial to claim the plaintiff's land.
Remedies — Survey to Determine Bona Fide Occupancy — Conditional Eviction
Where a court determines that defendants are bona fide occupants on part of suit land but trespassers on the excess, the court may order a government surveyor to demarcate the land to which bona fide occupancy applies. The court may give defendants an option to pay compensation at current market value to retain a small portion trespassed upon, in default of which an eviction order shall be executed.

Legislation cited (14)

Cases cited (13)

  • Ababiri Muhamood and 4 Others v Mukomba Anastansia and Another (High Court Miscellaneous Case of 2019)
  • Justine E.M.N Lutaya v Sterling Civil Engineering Co. Ltd (Supreme Court Civil Appeal No. 11 of 2002)
  • Hajati Ziribagwa and Another v Yakobo Ntate (High Court Civil Suit No. 117 of 1991)
  • Odyek Alex and Another v Gena Yokonani (Civil Appeal No. 09 of 2017)
  • Perry v. Clissold [1907] AC 73
  • Rwajuma v Jingo Mukasa (High Court Civil Suit No. 508 of 2012)
  • Stroms Vs. Hatchison (1905) A.C 515
  • Emmaus Foundation Ltd v Antwani Kawaddwa (High Court Civil Suit No. 53 of 2011)
  • Ndiwibo Sande and 3 Others v Allen Peace Ampaire (Court of Appeal Civil Appeal No. 65 of 2011)
  • Uganda Revenue Authority v Wanume David (Court of Appeal Civil Appeal No. 43 of 2010)
  • Makula International Ltd Vs. H.E Cardinal Nsubuga (1982) HCB 11
  • Isaya Kalya and 2 Others v Moses Macekenyu Kagobya (Court of Appeal Civil Appeal No. 82 of 2012)
  • Luzinda v Ssekamatte and 3 Others (Civil Suit No. 366 of 2017)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Kasoya_and_Another_v_Kaija_and_3_Others_(Civil_Suit_No._6_of_2015)_[2023]_UGHCLD_49_(17_February_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.