Wakilii

Komushana Rachael Kabarungi v Zirintusa Peter (Miscellaneous Cause No. 45 of 2025)

High Court · [2025] UGHCLD 384 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Miscellaneous cause seeking severance of tenancy in common and subdivision of jointly owned land
Decision
Application dismissed with liberty to file fresh suit by ordinary plaint

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application for severance of tenancy in common on the ground that the respondent's allegation of a sale agreement, disputed by the applicant as forged, raised contentious issues of fraud that cannot be determined by affidavit evidence. The court held that such matters require oral evidence and directed the applicant to file a fresh suit by way of ordinary plaint.

Outcome

Application dismissed with liberty to file fresh suit by ordinary plaint

Facts

The applicant and respondent were registered as tenants in common of land in Kyadondo Block 116 Plot 723 at Masooli Kasangati on 20 September 2021. They were formerly partners with a child together. The applicant alleged that after jointly planning to develop the property, the respondent proceeded to construct a building without her knowledge, reaching the second floor roofing stage. When confronted, the respondent claimed he had spent UGX 300,000,000 and demanded refund if the applicant wanted her interest back. The applicant sought severance of the tenancy in common. The respondent opposed, claiming he was the true owner and that the applicant had sold her share to him in January 2022 for UGX 30,000,000 under a sale agreement. The applicant denied the sale and alleged the agreement was forged.

Issues

  1. Whether the suit land is held as tenancy in common by the Applicant and the Respondent.
  2. Whether the tenancy in common can be severed at the instance of the Applicant.
  3. Whether the High Court at Kampala (Land Division) has geographical jurisdiction to hear the matter.
  4. Whether allegations of fraud can be adequately tried by affidavit evidence in a miscellaneous cause.

Orders

  • Application dismissed.
  • The Applicant should file a fresh suit by way of an ordinary plaint in order for Court to determine the various issues she raises including the issue of alleged forgery and fraud.
  • Each party shall bear their own costs.

Rules and key headnotes

Civil Procedure — Geographical Jurisdiction — High Court Circuits — Designation of Jurisdiction
Where land is situated in Kyadondo County at Masooli, Wakiso District, the High Court at Kampala (Land Division) retains jurisdiction notwithstanding the establishment of Wakiso High Court Circuit, as certain areas in Kyadondo County were designated to fall under Kampala High Court jurisdiction.
Evidence — Fraud — Proof by Oral Evidence — Affidavit Evidence Inadequate
Allegations of fraud are highly contentious matters that require proof by way of oral evidence and cannot be adequately determined by affidavit evidence in a miscellaneous cause.
Civil Procedure — Pleadings — Fraud — Particulars Required
Fraud is a serious allegation that must be properly pleaded with particulars under Order 6 Rule 2 of the Civil Procedure Rules, and matters involving fraud require hearing of oral evidence and cannot be determined by affidavit evidence.
Civil Procedure — Miscellaneous Causes — Contentious Matters — Need for Plenary Suit
Where a matter is contentious and involves a considerable need to call oral evidence to prove facts in controversy, the procedure of proceeding by affidavit evidence in a miscellaneous cause becomes improper, and the proper course is to file a fresh suit by way of ordinary plaint.

Legislation cited (8)

Cases cited (4)

  • Hannington Wasswa & Anor v Maria Onyango Ochola (Supreme Court Criminal Appeal No. 22 of 1993)
  • General Parts (U) Ltd & Another v Non Performing Assets Recovery Trust (Supreme Court Civil Appeal No. 09 of 2005)
  • Kampala Bottlers Ltd v Daminico Ltd (Civil Appeal No. 22 of 1992)
  • Zalwango Elivason & Anor v Dorothy Walusimbi & Another (Originating Summons No. 3 of 2023)

Full judgment

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

Komushana_Rachael_Kabarungi_v_Zirintusa_Peter_(Miscellaneous_Cause_No._45_of_2025)_[2025]_UGHCLD_384_(17_November_2025)
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.