Wakilii

Kinyera v SBI International & Anor (Civil Suit No. 260 of 2006)

High Court · [2016] UGHCLD 53 · 2016 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for compensation for trespass to customary land, transferred from Masindi District Land Tribunal due to jurisdictional issues
Decision
Judgment entered for the plaintiff with compensation for murram excavation, disturbance allowance, general damages, interest, and costs awarded against the defendant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that customary ownership is established through proof of occupation and possession under customary practices without requiring a certificate of customary ownership. A party entering customary land and excavating material without the owner's consent commits trespass. The defendant asserting consent bears the burden of proving it. Compensation for excavated murram is calculated at open market value at the time of award, excluding non-murram soil such as clay and loam, plus 30% disturbance allowance. General damages are awarded where customary land is rendered unusable for cultivation due to trespass.

Outcome

Judgment entered for the plaintiff with compensation for murram excavation, disturbance allowance, general damages, interest, and costs awarded against the defendant

Facts

The plaintiff inherited customary land in Diima 'B' village in 1982 through customary succession from his father. He applied for lease registration in February 2004 but the application remained pending. In 2004, the defendant company, while upgrading Karuma-Olwiyo road, entered the plaintiff's land without consent and excavated murram from a pit 3.4 metres deep and 105.05 by 44.3 metres in area. The plaintiff instituted proceedings before Masindi District Land Tribunal in September 2005, which transferred the matter to the High Court Land Division due to jurisdictional issues. The defendant claimed it had the plaintiff's consent to excavate but led no evidence to prove this. Expert valuation evidence conflicted on the quantity of murram removed.

Issues

  1. Whether the Plaintiff owns land at Diima 'B' village.
  2. Whether the Defendant trespassed on the suit land by extracting murram from the land without the Plaintiff's consent.
  3. What was the quantity of murram removed and what was its value.
  4. What remedies are available to the Plaintiff.

Orders

  • Judgment entered for the Plaintiff against the Defendant.
  • Defendant to pay Plaintiff compensation for murram excavated at UGX 26,776,200.
  • Defendant to pay Plaintiff disturbance allowance of UGX 8,032,860.
  • Defendant to pay Plaintiff general damages of UGX 20,000,000.
  • Interest at 10% per annum on all decretal sums from date of judgment until payment in full.
  • Costs of the suit to the Plaintiff.

Rules and key headnotes

Customary Tenure — Proof of Ownership — Certificate Not Mandatory
Customary ownership is proved through occupation and possession under customary practices of the area; proof of customary succession and continuous occupation establishes ownership even where a certificate of customary ownership has not been issued or an application for lease remains pending.
Trespass to Land — Unauthorised Entry — Burden of Proof on Defendant Asserting Consent
Trespass to land is constituted by unauthorised entry on land in possession of another; where a defendant alleges consent to entry and excavation, the defendant bears the burden of proving that consent.
Compensation for Excavation — Valuation at Open Market Value — Disturbance Allowance
Compensation for excavated material is calculated according to open market value at the time of making the award; in valuing excavated murram, only the murram actually removed is compensable, excluding clay, loam soil, and other unwanted material left behind; disturbance allowance of 30% is added to the compensation for the excavated material.
General Damages — Customary Land Rendered Unusable — Loss of Cultivation
General damages are awarded where trespass and excavation render customary land unusable for its prior agricultural purpose, compensating for inconvenience, mental stress, and loss of ability to cultivate food and cash crops.

Legislation cited (3)

Cases cited (3)

  • Addie v Dumkreck (1929) AC 358
  • Justine Lutaava v Stirling Civil Engineering Co (Civil Appeal No. 11 of 2005)
  • Sheikh Muhammad Lubowa v Kitara Enterprises Ltd (1987) HCB 68

Full judgment

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

Kinyera v SBI International & Anor (Civil Suit No. 260 of 2006) [2016] UGHCLD 53 (6 December 2016)
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.