Wakilii

Kimbowa v Kasitro (Civil Suit No. 197 of 2009)

High Court · [2021] UGHCLD 133 · 2021 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration of interest in land and cancellation of fraudulent registration
Decision
Land to be surveyed and separate titles issued to plaintiff and defendant for their respective portions; defendant's registration of the entire plot cancelled

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the plaintiff established an interest in part of the land through inheritance and occupation before the defendant's purchase. The sale agreement was inadmissible under the Illiterates Protection Act as the vendor was illiterate and the document lacked proper jurats. The defendant was not a bona fide purchaser because he failed to conduct adequate due diligence: he purchased when the vendor was not yet the registered proprietor, did not consult local councils before purchase, and had actual or constructive notice of the plaintiff's occupation. The defendant's registration of the entire plot while aware of the plaintiff's interest constituted fraud. The court ordered the land to be surveyed and separate titles issued to each party for their respective portions.

Outcome

Land to be surveyed and separate titles issued to plaintiff and defendant for their respective portions; defendant's registration of the entire plot cancelled

Facts

The plaintiff claimed he inherited part of land comprised in Kibuga Block 28 Plot 724 from his grandfather Eriya Sonko through a gift from Sonko's two daughters, Joyce Nakayi and Victor Nakiwala. He occupied the land from 1989, constructed a house, and rented it to tenants. In 1999, Joyce Nakayi sold the entire plot to the defendant Bernard Kasitro, who registered it in his name. The plaintiff discovered this through a land search and lodged a caveat. The defendant claimed he was a bona fide purchaser who had searched the register and found no encumbrances. The plaintiff alleged fraud, arguing the defendant knew or ought to have known of his occupation and interest. A locus visit in 2000 confirmed structures existed on the disputed portion. The sale agreement between Nakayi and the defendant was challenged as void under the Illiterates Protection Act because Nakayi was illiterate and the document lacked proper jurats showing the contents were explained to her.

Issues

  1. Whether the plaintiff has any interest in the land comprised in Kibuga Block 28 Plot 724.
  2. Whether the defendant is a bona fide purchaser for value without notice.
  3. Whether the defendant committed fraud in the process of registration.
  4. Whether the plaintiff is entitled to the remedies sought.

Orders

  • At the cost of the plaintiff, the area he occupied shall be surveyed off by a surveyor appointed by the Deputy Registrar of this court.
  • The Commissioner Land Registration shall cancel the registration of the defendant as proprietor of the whole land in KB 28 Plot 724 at Makerere measuring approximately 0.13 Hectares.
  • The Commissioner shall issue two separate titles: one for the defendant using the surveyor's prints for his portion, and one for the plaintiff Erick Kimbowa for the area he occupied.
  • Within 14 days after the surveyor produces the new prints, the defendant shall surrender his Duplicate Certificate of Title to the Commissioner Land Registration; failing which the Commissioner shall proceed to issue new titles with or without such surrender in accordance with s.73 of the Registration of Titles Act.
  • No general damages are awarded to the plaintiff as he has always been in occupation of his portion.
  • The defendant shall pay the costs of this suit to the plaintiff.

Rules and key headnotes

Illiterates Protection Act — Requirements for Valid Documents — Jurats and Explanation
Where an illiterate person signs a document, Section 3 of the Illiterates Protection Act requires that the person who writes the document must write in the jurat their true and full address, and it must be shown that the contents were explained to the illiterate person in a language they understood. Failure to comply renders the document inadmissible in evidence.
Acquisition of Interest — Gift of Land — Proof by Occupation and Use
A gift of land may be established by evidence of exclusive occupation and use of the land by the donee during the lifetime of the donor, even where the gift is not formally registered.
Cross-Examination — Failure to Challenge Evidence — Effect
An omission or neglect to challenge evidence-in-chief on a material or essential point by cross-examination leads to an inference that the evidence is accepted. Where material evidence is not challenged in cross-examination, it stands as unchallenged truth and the court will find it difficult to reject such evidence.
Bona Fide Purchaser — Requirements — Due Diligence
To establish the defence of bona fide purchaser for value without notice, a purchaser must prove: (i) that they hold a duplicate certificate of title; (ii) that they purchased for valuable consideration; (iii) that they bought in good faith without any defect in title; and (iv) that the vendor was the registered owner at the time of purchase. A purchaser who buys when the vendor is not yet the registered proprietor cannot claim to be a bona fide purchaser.
Due Diligence — Duty to Investigate Vendor and Consult Persons in Occupation
Lands are not vegetables bought from unknown sellers. Land is valuable property and buyers are expected to make thorough investigations not only of the land but also of the sellers before purchase. A purchaser who conducts only a perfunctory search of the register without physically inspecting the land or consulting persons in occupation takes the land subject to existing equitable interests.
Fraud in Land Transactions — Constructive Notice — Failure to Inquire
A person who purchases land which they know to be in occupation and use of another person other than the vendor, without carrying out reasonable inquiries from the person in occupation, commits fraud. Failure to make reasonable inquiries or the purchaser's ignorance or negligence to do so forms particulars of fraud, and the purchaser takes the land subject to its equities.
Fraud — Definition — Concealment and Intentional Perversion of Truth
Fraud is an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with something valuable or to surrender a legal right. It includes false representation of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which deceives and is intended to deceive another so that they shall act upon it to their legal injury. A purchaser who makes an agreement over land while aware that another person occupies it and has an interest in it, thereby concealing the truth and causing legal injury, commits fraud.

Legislation cited (16)

Cases cited (19)

  • Makula International v His Eminence Cardinal & Another [1982] HCB 11
  • Kasaala Growers Co-operative Society v Kakooza & Another (Supreme Court Civil Appeal No. 19 of 2010)
  • Ngoma Ngime v Electoral Commission & Winnie Byanyima (Election Petition Appeal No. 11 of 2002)
  • Opia Moses v Chukia Lumago Roselyn & Others (High Court Civil Suit No. 22 of 2013)
  • Sonde Martin v Uganda (Court of Appeal Criminal Appeal No. 278 of 2003)
  • James Sawoabiri & Another v Uganda (Supreme Court Criminal Appeal No. 5 of 1990)
  • Brown v Dunn (1894) 6 R 67 (HL)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • John Katarikawe v Katwiremu & Another [1997] HCB 187
  • Hannington Njuki v George William Musisi [1999] KALR 794
  • FK Zaabwe v Orient Bank Ltd & Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Uganda Posts & Telecommunication v Abraham Katumba [1997] IV KALR 103
  • Uganda Posts & Telecommunication v AKPM Lutaya (Supreme Court Civil Appeal No. 36 of 1995)
  • Ovayo Poli v Wakunga Charles (Civil Appeal No. 13 of 2014)
  • Haji Abdu Nasser Katende v Vithaalidas Haridas & Co Ltd (Court of Appeal Civil Appeal No. 84 of 2003)
  • Sir John Mageire v Ausi Matovu (Court of Appeal Civil Appeal No. 7 of 1996)
  • Taylor v Stilbbert [1803-13] All ER 432
  • Ojera Joseph v Labeja Pirimino (High Court Civil Appeal No. 20 of 2013)
  • Godfrey Sebanakita v Fuelex (U) Ltd (Supreme Court Civil Appeal No. 4 of 2016)

Full judgment

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

Kimbowa_v_Kasitro_(Civil_Suit_No._197_of_2009)_[2021]_UGHCLD_133_(14_September_2021)
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.