Wakilii

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

High Court · [2023] UGHCCD 143 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion seeking court order for boundary opening and demarcation of adjacent properties
Decision
Application granted with order for government surveyor to conduct boundary opening and demarcation exercise

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

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 to court but does not specify the form, the application may be brought by notice of motion under Order 53 Rules 1 and 3 of the Civil Procedure Rules without requiring a substantive suit. Both preliminary objections dismissed and application granted.

Outcome

Application granted with order for government surveyor to conduct boundary opening and demarcation exercise

Facts

The Applicant owns land comprised in FRV JJA604 Folio 5 Plot 6, Factory Village, Jinja District. The Respondent owns adjacent Plots 1-7 in the same area. The Respondent's main certificate of title was issued in 1949 and it was registered as transferee on 21 October 1996, having been in occupation since 12 November 1996. The Applicant sought a court order for boundary opening and demarcation of the two adjacent properties. The Respondent raised preliminary objections that the application was time-barred under the Limitation Act and that it could not be maintained without a substantive suit. The Respondent attached a previous Boundary Opening Report which indicated that some corners of Plot 6 could not be accessed due to obstruction and that there was total encroachment on Plot 6 by a third party.

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 — Determination of Nature of Action — Distinction from Recovery of Land
An application for a court order to clear, open and demarcate boundaries of adjacent properties is not an action for recovery of land. In determining whether a suit is for recovery of land, the court considers the essence of the action rather than the nomenclature adopted by the parties.
Land & Property — Boundary Opening — Limitation — Application of Limitation Act
An application seeking an order for clearing, opening boundaries and demarcation of land is not time-barred by the Limitation Act where the applicant does not claim trespass to land or seek to recover land, but merely seeks determination of boundaries between adjacent properties.
Civil Procedure — Applications by Notice of Motion — Where Statute Does Not Prescribe Form
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 to be filed.
Civil Procedure — Preliminary Objections — Scope and Proper Basis
A preliminary objection must raise a pure point of law which is 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. A preliminary objection based on a totally new set of facts not in the application before court is improper and constitutes an abuse of court process.

Legislation cited (5)

Cases cited (5)

  • Gawubira Mankupias v Katwiita Stephen (HCCA No. 130 of 2008)
  • St. Beneist Plantations Ltd v Jean Emile Adrien Felix [1954] 21 EACA 105
  • Isingoma Micheal v Law Development Centre (HCMA 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 (Misc. Appeal No. 97 of 2003)

Full judgment

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Kizza v Kengrow Industries Limited (Miscellaneous Cause 32 of 2022) [2023] UGHCCD 143 (3 April 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.