Wakilii

Kwesiga & 2 Others v Nabukalu & 2 Others (Civil Appeal 26 of 2024)

High Court · [2025] UGHC 62 · 2025 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Kiboga Chief Magistrate's Court arising from a land trespass suit
Decision
Appeal allowed; 1st and 3rd appellants declared bona fide occupants; respondents' suit dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal and set aside the trial court's judgment. The court held that the 1st and 3rd appellants proved through oral evidence corroborated by the LC1 chairperson that they had been in continuous occupation of the suit land since before 1995, cultivating and burying their relatives thereon, without challenge from the registered owners until 2014. Despite the absence of documentary evidence, such continuous unchallenged occupation satisfied the requirements for bona fide occupancy under Article 237 of the Constitution and Section 29 of the Land Act.

Outcome

Appeal allowed; 1st and 3rd appellants declared bona fide occupants; respondents' suit dismissed

Facts

The respondents, as registered owners and administrators of their late father's estate, sued the appellants for trespass on land comprised in block 825 plot 10 Singo at Bananywa. The respondents claimed the appellants had cleared, cultivated, and occupied the land without authority. The 1st appellant claimed he was born and raised on the land by his late uncle Nsolosozi, who allegedly purchased a kibanja from the original registered owner Matiya Ssentamu. The 3rd appellant claimed he inherited his kibanja from his late aunt Maria Namisango, who had also purchased from Ssentamu. The respondents admitted they only came to the land in 2014 to ascertain who the occupants were, calling a meeting with local authorities and tenants. The appellants had no documentary evidence of their kibanja interests or busulu receipts, as documents were allegedly lost during war. Witnesses, including the LC1 chairperson, confirmed the appellants had resided on the land for approximately 30 years, with graves, crops, and permanent developments. The trial magistrate found for the respondents based on the certificate of title and absence of documentary proof from the appellants.

Issues

  1. Whether the learned trial magistrate properly evaluated the evidence on record.
  2. Whether the 1st and 3rd appellants are bibanja holders or bona fide occupants on the suit land.
  3. Whether the learned trial magistrate erred by failing to visit the locus in quo.

Orders

  • The judgment and decree of the trial court are hereby set aside.
  • The respondents/plaintiffs' case stands dismissed.
  • The counterclaim is allowed and the 1st and 3rd appellants are declared to be bona fide occupants on the suit land.
  • Costs of the appeal and the court below are awarded to the appellants.

Rules and key headnotes

Bona Fide Occupancy — Requirements — Proof by Oral Evidence
To prove bona fide occupancy under Article 237 of the Constitution and Section 29 of the Land Act, a person must establish continuous unchallenged occupation of registered land for 12 years before the 1995 Constitution. Occupation may be proved by oral evidence of cultivation, grazing, settlement, or possession, corroborated by credible witnesses, even in the absence of documentary evidence such as busulu receipts.
Bona Fide Occupancy — Registered Ownership — Effect of Absence from Land
Where registered owners do not know the occupants on their land until many years after occupation commenced, and do not challenge the occupation when they become aware, this supports a finding that the occupation was unchallenged and continuous for purposes of establishing bona fide occupancy.
Documentary Evidence — Absence — Effect on Oral Evidence
Absence of documentary evidence of land interests does not automatically defeat a claim where credible oral evidence establishes the facts in issue. The court must weigh all the evidence adduced and may rely on oral testimony corroborated by independent witnesses.
Locus in Quo — Discretion to Visit — Disputed Facts
Visiting the locus in quo is not mandatory but lies in the discretion of the trial court. Where disputed material facts turn on physical features on the land such as graves, crops, and developments alleged to have existed for decades, failure to visit the locus may be irregular, though such failure does not necessarily occasion a miscarriage of justice if the disputed facts are not challenged by the opposing party.
First Appellate Court — Duty to Re-evaluate Evidence
On first appeal, the appellate court must subject the evidence to fresh and exhaustive scrutiny, draw its own inferences and conclusions, and reach its own decision on issues of fact and law, making due allowance for not having seen or heard the witnesses.

Legislation cited (8)

Cases cited (8)

  • Father Nanensio Begumisa and three Others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000)
  • Alule Richard v Agwe Domnic (High Court Civil Appeal No. 32 of 2014)
  • Attorney General v Florence Baliraine (Civil Appeal No. 79 of 2003)
  • Ranchobhai Shivabhai Patel Ltd and another v Henry Wambuga and another (Court of Appeal No. 6 of 2017)
  • Fernandes v Norohuna [1969] EA 506
  • Rwanseri Abumereki v Mbabazi Peter (High Court Civil Appeal No. 9 of 2013)
  • Safina Bakulimya and another v Yusuf Musa Wamala (High Court Civil Appeal No. 68 of 2007)
  • Owembabazi Enid v Guarantee Trust Bank Limited (High Court Commercial Division Case No. 63 of 2018)

Full judgment

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

Kwesiga & 2 Others v Nabukalu & 2 Others (Civil Appeal 26 of 2024) [2025] UGHC 62 (17 February 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.