Wakilii

Kikawa and Another v Commissioner Land Registration and Nkonge Sulaiman [2024] UGHC 1219

High Court · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for vesting order under Section 98 of the Civil Procedure Act and Order 52 Rules 1 and 2 of the Civil Procedure Rules
Decision
Application dismissed — vesting order refused

Observed later treatment

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Holding

Application for vesting order dismissed. Held that applicants failed to prove all conditions for grant of vesting order, specifically actual possession and acquiescence by the vendor or representatives, where competing claim existed from second respondent who also claimed possession since 1968/1969 and where survey evidence showed encroachments from neighbouring plot 585. Applicants also failed to prove that administrator was out of jurisdiction or could not be found.

Outcome

Application dismissed — vesting order refused

Facts

The applicants sought a vesting order for land comprised in Kibuga Block 17, Plots 577 and 578, claiming they purchased the land through multiple sale agreements between 2006 and 2007 from the late Ekiriya Lakeri Kizito as administrator of an estate. The applicants applied to the Commissioner Land Registration in December 2023 but the application was rejected. During locus visit, the court discovered that Haji Nkonge Sulaiman claimed to have purchased a kibanja on the same land in 1968/1969 from the late Peter Luzige and maintained possession as a family home. The second respondent claimed he had paid consideration to the late Esau Kizito following an LC court judgment in 1989 and had been paying busuulu. Survey evidence revealed encroachments from plot 585 onto plots 577 and 578, blocking official access roads. The applicants claimed 17 years of possession running a family garage, but this was disputed by the second respondent who asserted continuous possession since 1968/1969.

Issues

  1. Whether the land comprised in Kibuga Block 17, Plots 577 & 578 can be vested into the Applicants
  2. What are the remedies available

Orders

  • Application dismissed.
  • Costs awarded to the Respondents.

Rules and key headnotes

Vesting Orders — Conditions for Grant under Registration of Titles Act
For a court to grant a vesting order under section 167 of the Registration of Titles Act, the applicant must prove: (i) the land is registered under the Registration of Titles Act and the purchaser has paid the whole purchase price; (ii) the purchaser or those claiming under them have taken actual possession of the purchased land; (iii) entry into possession has been acquiesced to by the vendor or their representatives; and (iv) the transfer has not been executed because the vendor is dead, residing out of jurisdiction, or cannot be found.
Vesting Orders — Actual Possession versus Constructive Possession
In applications for vesting orders, the applicant must prove actual possession as opposed to constructive possession of the suit property. Actual possession is established by evidence showing sufficient control demonstrating both an intention to control and an intention to exclude others. Legal possession of an object not in direct physical control does not suffice.
Vesting Orders — Effect of Competing Claims and Disputed Possession
Where competing claims to the same land exist and the fact of exclusive possession and acquiescence by the vendor has not been proved by the applicants, the court will refuse to grant a vesting order. The existence of physical encroachments and competing assertions of possession by another party defeats the requirement of proving actual possession in exclusion of all others.
Vesting Orders — Requirement to First Apply to Registrar of Titles
An application for a vesting order must first be made to the Registrar of Titles under section 167 of the Registration of Titles Act before approaching the court. Where the Registrar declines the application and recommends that the applicant approach the court, the court's intervention becomes necessary and the application is properly brought before the court.
Vesting Orders — Proof that Vendor Cannot be Found or is Out of Jurisdiction
An applicant seeking a vesting order on the ground that the vendor or their legal representative is out of jurisdiction or cannot be found must provide proof of attempts to search for and locate them. Mere allegation without such proof is insufficient to satisfy this condition for grant of a vesting order.

Legislation cited (4)

Cases cited (5)

  • Najiemba v Mayanja ([2009] UGCA 1)
  • Mutyaba Tom v Sebinene and Another (Miscellaneous Application No. 40 of 2018)
  • Nabirye and Others v Kizito and Others (Court of Appeal No. 27 of 2014)
  • Mpalanyi Julius v Kamwesige (High Court Civil Appeal No. 5 of 2020)
  • Odyeki and Another v Yokonani and Others (High Court Civil Appeal No. 9 of 2011)

Full judgment

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

Kikawa and Another v Commissioner Land Registration and Nkonge Sulaiman 2024 UGHC 1219 (26 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.