Wakilii

Kizza and Anor v Senkoma and 3 Others (Civil Suit No. 158 of 2007)

High Court · [2021] UGHCLD 173 · 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 ownership, cancellation of title, and permanent injunction
Decision
Plaintiff declared legal owner of 6 acres; entitled to Certificate of title. 4th Defendant's title cancelled. Permanent injunction granted. Defendants' counterclaim dismissed.

Observed later treatment

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Holding

Held that the plaintiff lawfully purchased 6 acres from the late Miiro Gerald in 1977 and remained in continuous occupation. The 1st and 2nd defendants fraudulently obtained Letters of administration by falsely representing themselves as sons of the deceased and omitting known beneficiaries. Their subsequent registration and subdivision of the land was fraudulent. The 4th defendant's title was acquired with knowledge of the plaintiff's occupation and legal interest, thus also fraudulent. Plaintiff entitled to Certificate of title for the 6 acres; 4th defendant's title cancelled; permanent injunction granted restraining defendants from trespass.

Outcome

Plaintiff declared legal owner of 6 acres; entitled to Certificate of title. 4th Defendant's title cancelled. Permanent injunction granted. Defendants' counterclaim dismissed.

Facts

In 1977, the plaintiff purchased 6 acres from the late Miiro Gerald, the registered proprietor of Kyadondo Block 99 plot 32, for UGX 6,500. The plaintiff had previously occupied the land as a kibanja holder. The vendor died in 1978 before effecting transfer. In 2005, the 1st and 2nd defendants, falsely claiming to be sons of the deceased, obtained Letters of administration. They registered themselves as proprietors, subdivided the land into plots 390-394, and sold plot 390 (which included the plaintiff's 6 acres) to the 4th defendant in 2006. The plaintiff had continuously occupied the land with visible developments including a permanent house. The 1st and 2nd defendants omitted the deceased's widow and known children from the administration petition and never filed an inventory.

Issues

  1. Whether the Plaintiff is the lawful owner/purchaser of the suit property measuring 6 acres and entitled to possession and Certificate of title for the same.
  2. Whether the Defendants are trespassers on the suit property.
  3. Whether the Defendants fraudulently acquired Letters of administration to the estate of the late Miiro Gerald.
  4. Whether the Defendants are the lawful registered proprietors of the suit land.
  5. Whether the counter Respondent is a trespasser on the 2nd Defendant/counterclaimant's suit land.
  6. What remedies are available to the parties in the circumstances.

Orders

  • A declaration that the Plaintiff is the legal owner of the suit land measuring 6 acres comprised in plot 32 Block 99 Kyadondo part of it now falling in the current plot 390 Block 99 Kyadondo.
  • The Plaintiff is entitled to issuance of a Certificate of title in his own names in respect of the suit 6 acres of land.
  • The 4th Defendant's Certificate of title was acquired through fraud and it is accordingly cancelled.
  • A permanent injunction does issue restraining the Defendants from any trespass and interference with the Plaintiff's quiet possession and occupation of the suit land.
  • The Defendants' counterclaim is dismissed with costs to the Plaintiff.
  • The Plaintiff's claim of general damages is rejected as it is not backed by any evidence.
  • The Plaintiff is awarded costs of the suit.

Rules and key headnotes

Adverse Possession — Title by Possession — Registration of Titles Act s.78
A person who has been in continuous, undisturbed occupation and use of registered land may acquire title by possession under Section 78 of the Registration of Titles Act and apply to the Registrar for an order vesting the land in him, notwithstanding that another person holds registered title.
Letters of Administration — Fraud — False Representation of Relationship to Deceased
It is an act of fraud where an applicant for Letters of administration deliberately makes false representations that he is a son or beneficiary of the deceased and leaves out known children and beneficiaries whom he knows exist, intending to deceive the court to grant Letters of administration so as to defraud the estate and its genuine beneficiaries.
Indefeasibility of Title — Fraud Exception — Registration of Titles Act s.176 and s.177
Where Letters of administration are procured through fraud, any subsequent registration of land based on those fraudulently obtained Letters is itself fraudulent and cannot confer good title. The cloak of protection for registered proprietors under Section 59 of the Registration of Titles Act is removed by Sections 176 and 177 where fraud is established.
Bona Fide Purchaser for Value — Notice — Actual Occupation
A purchaser cannot claim to be a bona fide purchaser for value without notice where the land purchased was in the actual physical occupation of another person with visible developments at the time of purchase. Such occupation constitutes notice of the occupant's legal interest.
Sale of Land — Illiterates Protection Act — Applicability
The Illiterates Protection Act is intended to protect illiterate persons against unprincipled opponents. Where a party owns and does not disown or contest a document he signed, he does not need protection under the Act as he is not an opponent of himself.
Trespass — Right to Sue — Possession versus Title
A person in physical possession of land can sue for trespass even though another person holds absolute indefeasible title to that land.
Lawful Occupancy — Land Act s.29(1)(b) — Purchaser Remaining in Possession
Where a purchaser of land pays the full purchase price and takes possession but the vendor dies before effecting transfer, the purchaser remains a lawful occupant under Section 29(1)(b) of the Land Act and is entitled to possession and a Certificate of title.

Legislation cited (12)

Cases cited (11)

  • Mayanja Hussein v Mubiru Christopher (High Court Civil Suit No. 129 of 2020)
  • Mathias Lwanga Kaganda v UEB (High Court Civil Suit No. 124 of 2003)
  • EVERET VS. RIBBANDS & ANOR. (1952) 2 QB 198
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • AUTO GARAGE VS. MOTOKOV [1971] E.A 514
  • Justine E. M. N. Lutaya v Sterling Civil Engineering Co. Ltd (Supreme Court Civil Appeal No. 11 of 2002)
  • Balikuddembe Jumba Peter & Ors v Jjagwe Mbuga & Anor (High Court Miscellaneous Application No. 976 of 2012)
  • BEVAM VS. HOULD WORTH [1948]1 ALL ER 273
  • Kasaala Growers Co-op. Society v Kakooza & Anor (Supreme Court Civil Appeal No. 19 of 2010)
  • Tumusiime Paul & 3 Ors v Hajji Wahab Semakula (High Court Civil Suit No. 76 of 2013)
  • F. Zaabwe v Orient Bank Ltd & Ors (Civil Appeal No. 4 of 2006)

Full judgment

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

Kizza_and_Anor_v_Senkoma_and_3_Others_(Civil_Suit_No._158_of_2007)_[2021]_UGHCLD_173_(5_February_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.