Wakilii

Kibombo & Another v Kikomeko & Another (Civil Suit 978 of 2019)

High Court · [2024] UGHCLD 246 · 2024 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration of ownership, trespass, permanent injunction, and vacant possession with counterclaim by defendants asserting Kibanja interest
Decision
Judgment entered for the Plaintiffs. Defendants declared trespassers and ordered to vacate. Permanent injunction granted. Counterclaim dismissed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court Land Division held that the plaintiffs, as registered proprietors of land comprised in Kyadondo Block 102 Plot 90 at Jokolera, are the rightful owners. The defendants failed to prove valid Kibanja interests: the first defendant adduced no documentary evidence of his late father's alleged 1976 purchase, and the second defendant's purported acquisition was undertaken without the consent of the registered proprietors as required by the Land Act. Transactions for Kibanja interests without landlord consent are null and void. The defendants are trespassers, and the plaintiffs are entitled to a declaration, permanent injunction, vacant possession, general damages of UGX 7,000,000, and costs.

Outcome

Judgment entered for the Plaintiffs. Defendants declared trespassers and ordered to vacate. Permanent injunction granted. Counterclaim dismissed.

Facts

The plaintiffs, administrators of the estate of the late Stanley Kigere, are registered proprietors of land comprised in Kyadondo Block 102 Plot 90 at Jokolera measuring 7.81 hectares. Stanley Kigere acquired the land in 1976 from Kezironi Mpinga and was registered on title in January 1977. The plaintiffs maintain a horticulture and eucalyptus tree nursery and food crops on the land. Around February 2019, the first defendant entered the land, destroyed crops, erected poles, surveyed and demarcated parcels, destroyed a farm house and water tank, and harassed workers. The defendants claimed Kibanja interests: the first defendant alleged his late father Ssalongo Kiiza Kakembo bought approximately 6 acres of Kibanja land from Kezironi Mpinga in 1976 before the registration of Stanley Kigere. Ssalongo Kiiza Kakembo allegedly sold 2 acres to Mazinga Zimula in 2012, who later sold it to the second defendant in 2015. The defendants adduced no documentary evidence of the 1976 Kibanja purchase, claiming the agreement was destroyed in the 1986 war. No evidence was adduced showing that the subsequent Kibanja transactions were undertaken with the consent of the registered proprietors.

Issues

  1. Who is the rightful and lawful owner of the suit land?
  2. Whether the 1st and 2nd Defendants are trespassers on the suit land?
  3. What are the remedies available to the parties?

Orders

  • The Defendants are declared trespassers on land comprised in Kyadondo Block 102 Plot 90 land at Jokolera.
  • The Defendants are ordered to vacate the Plaintiffs' land.
  • A permanent injunction is hereby issued restraining the Defendants, their agents and workmen from transferring, selling, developing, constructing, trespassing, evicting or in any way interrupting the Plaintiffs' use and enjoyment of the suit land.
  • General Damages of Seven Million Uganda Shillings (UGX 7,000,000) are hereby awarded to the Plaintiffs.
  • Costs of the suit are awarded to the Plaintiffs.
  • The Defendants' counter claim is dismissed.

Rules and key headnotes

Kibanja Interest — Requirements for Valid Creation
A Kibanja holder must prove that he or she occupied Mailo land in accordance with the applicable law at the material time. A person does not acquire interest as a Kibanja holder merely because he or she has been referred to as such in isolation of the provisions of the law; one is not clothed with a Kibanja interest merely because referred to as such by the public or a section of the public in absence of proof of essential facts that would constitute creation of the Kibanja interest.
Kibanja Interest — Requirement for Landlord Consent on Transfer
Under section 34(9) (now section 35(9)) of the Land Act, no transaction to which the section applies shall be valid to pass any interest in land if it is undertaken without consent. The sale of a Kibanja without the consent of the registered owner of the land is null and void. A purchaser of a Kibanja without consent of the landlord acquires no valid interest at law.
Certificate of Title — Conclusive Evidence of Ownership
Under section 59 of the Registration of Titles Act, a certificate of title is conclusive evidence of ownership of land. The cardinal principle of registration of title is that a certificate of title is conclusive evidence of title and is indefeasible except in instances listed in section 176 of the Registration of Titles Act, including cases of fraud.
Registration of Title — Effect on Prior Equitable Interests
Section 91(2) of the Registration of Titles Act operates to pass all rights, powers and privileges belonging to the transferor to the transferee. When land having been transferred to a new registered proprietor, all rights powers and privileges accrue to the new proprietor. Where a purported Kibanja interest existed prior to registration, the consent of the new landlord is necessary for any subsequent transfer of that interest.
Trespass to Land — Elements of the Tort
Trespass to land occurs when a person makes an unauthorized entry upon land and thereby interferes with another person's lawful possession of that land. To succeed in an action for trespass, the plaintiff must prove: (i) that the disputed land belonged to the plaintiff; (ii) that the defendant entered upon it; and (iii) that the entry was unlawful, made without permission, or that the defendant had no claim, right or interest in the disputed land.
Trespass to Land — Possession as Basis for Action
The tort of trespass to land is committed not against the land but against the person who is in actual or constructive possession of the land. Only a person in possession of the land has capacity to sue in trespass. Actions for trespass to land require proof of possession of the land in dispute at the time of the intrusion complained of.
Kibanja Interest — Procedure for Obtaining Landlord Consent
Whenever a Kibanja is sold, the seller introduces the buyer to the owner of the Mailo land on which the Kibanja sits. If the owner has an agent who looks after that land, the buyer is introduced to that agent who in turn introduces him to the owner. In either case, the buyer upon being introduced gives to the Mailo land owner or to the agent, as the case may be, a gift called a kanzu. Thereupon the buyer is recognized by the owner as the new Kibanja holder.

Legislation cited (6)

Cases cited (15)

  • Jane Magango & 2 others v Wamala Kalibala William (Court of Appeal Civil Appeal No. 11 of 2019)
  • Ddamulira Abdu v Mss Xsabo Power Limited (Civil Suit No. 049 of 2021)
  • Prof Gordon Wavamunno v Sekyanzi Sempijja (Court of Appeal Civil Appeal No. 240 of 2013)
  • Owembabazi Enid v Guarantee Trust Bank Limited (Civil Suit No. 63 of 2019)
  • Kasifa Namusisi And Others v Francis M.K Ntabaazi (Supreme Court Civil Appeal No. 4 of 2004)
  • Jennifer Nsubuga v Michael Mukundane & Another (Court of Appeal Civil Appeal No. 208 of 2018)
  • Owembabazi Enid v Guaranty Trust Bank Limited and Others (Civil Suit No. 0063 of 2019)
  • Tifu Lukwago v Samwiri Mudde Kizza and Another (Supreme Court Civil Appeal No. 13 of 1996)
  • Justine E.M.N Lutaaya v Stirling Civil Engineering Company Limited (Supreme Court Civil Appeal No. 11 of 2002)
  • Aluma Micheal Bayo & 2 others v Saidi Nasur Okuti (High Court Civil Appeal No. 23 of 2013)
  • Ocean Estates Ltd v Pinder [1969] 2 AC 19
  • Powell v McFarlane (1977) 38 P&CR 452
  • F.D.K Zaabwe v Orient Bank & 5 Ors (Civil Suit No. 715 of 1999)
  • Sheikh Muhammed Lubowa v Kitara Enterprises Ltd (Court of Appeal No. 4 of 1987)
  • Phillip v Ward [1956] I AU ER 874

Full judgment

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Kibombo_&_Another_v_Kikomeko_&_Another_(Civil_Suit_978_of_2019)_[2024]_UGHCLD_246_(31_October_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.