Wakilii

Kizza Prossy Scanlen v Kengrow Industries Limited (Miscellaneous Cause 32 of 2022)

High Court · [2023] UGHC 227 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion for court order to clear, open boundaries and demarcate land, with preliminary objections raised by respondent
Decision
Application granted for boundary opening and demarcation to be conducted by authorized Government Officer

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that an application for a court order to clear, open boundaries and demarcate land is not an action for recovery of land and is therefore not time-barred under the Limitation Act. Where a statute provides for an application but does not specify the form, the application may be made by notice of motion under Order 53 of the Civil Procedure Rules without requiring a substantive suit. The court dismissed preliminary objections and granted the application for boundary opening and demarcation.

Outcome

Application granted for boundary opening and demarcation to be conducted by authorized Government Officer

Facts

The Applicant owned land comprised in FRV JJA604 Folio 5 Plot 6, Factory Village, Jinja District. The Respondent owned adjacent plots 1-7 at Factory Village. The Respondent's certificate of title was issued in 1949 and it was registered as transferee on 21 October 1996, occupying the land since 12 November 1996. The Applicant sought a court order for clearing, opening boundaries and demarcation of her land and the Respondent's neighboring plots. A previous boundary opening report indicated that some corners of Plot 6 were not accessed due to obstruction and that there was total encroachment on Plot 6 by a third party claiming ownership. The Respondent raised preliminary objections that the application was time-barred as an action for recovery of land and that it could not be maintained without a substantive suit.

Issues

  1. Whether the application is time barred.
  2. Whether the application is barred in law for lack of an ordinary suit from which it should be premised.

Orders

  • Preliminary objections dismissed.
  • Application granted.
  • Order issued to the authorized Government Officer to clear, open boundaries and demarcate the land comprised in FRV JJA604 Folio 5 Plot 6, Factory Village belonging to the Applicant and the adjacent and neighboring Plots 1-7 all situate at Factory Village, Jinja District belonging to the Respondent.
  • Each party to bear its own costs.

Rules and key headnotes

Land & Property — Boundary Opening and Demarcation — Nature of Application
An application for a court order to clear, open boundaries and demarcate land is not an action for recovery of land. The court considers the essence of the action rather than the nomenclature adopted by the parties in determining the nature of the suit.
Civil Procedure — Limitation — Application of Limitation Act to Boundary Opening Applications
An application for boundary opening and demarcation is not time-barred under Section 5 of the Limitation Act as it is not an action for recovery of land.
Civil Procedure — Notice of Motion — Applications Not Requiring Substantive Suit
Where a statute provides for an application to court but does not specify the form in which it is to be made and the rules do not provide for any special procedure, the application may be made by notice of motion in compliance with Order 53 Rules 1 and 3 of the Civil Procedure Rules without requiring a substantive suit.
Civil Procedure — Preliminary Objections — Scope and Proper Basis
A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A preliminary objection based on a totally new set of facts not in the application is improper and constitutes an abuse of court process.

Legislation cited (5)

Cases cited (5)

  • Gawubira Mankupias v Katwiita Stephen (High Court Civil Appeal No. 130 of 2008)
  • St. Beneist Plantations Ltd v Jean Emile Adrien Felix [1954] 21 EACA 105
  • Isingoma Micheal v Law Development Centre (High Court Miscellaneous Application No. 234 of 2019)
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited (1969) EA 696
  • Republic v Eldoret Water and Sanitation Company Limited (Miscellaneous Appeal No. 97 of 2003)

Full judgment

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

Kizza Prossy Scanlen v Kengrow Industries Limited (Miscellaneous Cause 32 of 2022) [2023] UGHC 227 (3 March 2023)
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.