Wakilii

Kizito Mubiru V Kalissa Augustine (Civil Appeal No. 92 of 2009)

High Court · [2019] UGHC 10 · 2019 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Njeru Magistrate Court against judgment ordering permanent injunction, vacant possession and general damages for trespass
Decision
Appeal dismissed and trial court order for permanent injunction, vacant possession and general damages upheld. Appellant's administrator to pay costs.

Observed later treatment

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Holding

The High Court dismissed an appeal challenging a magistrate's finding that land had been sold and that the appellant could not establish a valid gift inter vivos of part of the property. Held that a verbal gift of land is not recognized in Ugandan law and requires formalities including a deed. Appellant failed to show that the alleged donor had stripped herself of dominion over the land. Visit to locus in quo is not mandatory and was unnecessary where the court accepted that no valid gift had been made.

Outcome

Appeal dismissed and trial court order for permanent injunction, vacant possession and general damages upheld. Appellant's administrator to pay costs.

Facts

In 2006 Namusoke Ketty sold land with eight semi-permanent rooms at Namuwaya Mbiko, Njeru Town Council to Kalissa Augustine for Shs 5,100,000. The appellant Mubiru, who was Namusoke's nephew and had lived with her, claimed that Namusoke had gifted him a portion of the land in 1994 or 1995 and that he had constructed a house on it. After the sale, Namusoke and Mubiru moved to Katosi together, but Mubiru later returned and occupied two rooms on the suit property, refusing to vacate. Namusoke issued a notice to vacate which Mubiru defied. Kalissa sued for trespass, permanent injunction and damages. The magistrate found in favour of Kalissa. Mubiru died in 2014 after filing the appeal and his widow Lunkuse Oliver was granted Letters of Administration and substituted as appellant.

Issues

  1. Whether the learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence.
  2. Whether the trial magistrate erred in law and fact in not visiting locus in quo.

Orders

  • Appeal dismissed.
  • Appellant (by his administrator) shall pay costs of the lower court as earlier ordered.
  • Trial magistrate's judgment and order upheld.
  • Costs of the appeal awarded to the respondent.

Rules and key headnotes

Land & Property — Gifts Inter Vivos — Requirements for Validity — Formalities
For a gift inter vivos to take irrevocable root, the donor must intend to give the gift, the donor must deliver the property, and the donee must accept the gift. Delivery must be actual or constructive made during the donor's lifetime in a manner that depicts that the donor has stripped themselves of all dominion over the gift.
Land & Property — Gifts of Land — Form — Verbal Gifts Not Recognized
Ugandan law does not recognize a verbal gift of land. A gift of land must be by deed to satisfy the necessary formalities.
Land & Property — Gifts Inter Vivos — Donor's Dominion — Sale After Alleged Gift
Where a donor sells land and moves to another place after an alleged gift, this is indicative that the donor did not strip herself of all dominion over the property at the time of the alleged gift, and the alleged donee or his estate cannot enforce it.
Civil Procedure — Appeals — Time Limits — Notice of Appeal Versus Memorandum of Appeal
Failure to file a notice of appeal is not fatal to an appeal. A notice only serves to show that the losing party has intentions to appeal. It is the memorandum of appeal which is the vital document to alert the respondent of the intended grounds of appeal.
Evidence — Locus in Quo — Discretion to Visit — Not Mandatory
The practice of visiting locus in quo is not mandatory and depends on the circumstances of each case. The purpose is to clarify evidence already given in court, such as confirming boundaries and neighbors, showing developments, and other matters relevant to the case. Where the court believes testimony that no gift was made, a visit to locus is unnecessary.
Civil Procedure — Parties — Death of Party — Substitution
Under Order 24 rule 3(1) of the Civil Procedure Rules, where a party dies after filing an appeal, the court may substitute the legal representative as a party upon application.
Civil Procedure — Appeals — Duty of First Appellate Court — Re-evaluation of Evidence
The first appellate court has a duty to re-evaluate and re-appraise the evidence on record and come to its own conclusion, with the exception of the manner and demeanor of witnesses where it must be guided by the impression made on the trial judge. The first appellate court is not necessarily bound to follow the trial judge's findings of fact where it is evident that she failed to take into account particular circumstances or probabilities.

Legislation cited (3)

Cases cited (9)

Full judgment

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

Kizito Mubiru V Kalissa Augustine (Civil Appeal No. 92 of 2009) [2019] UGHC 10 (17 June 2019)
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.