Kyakuwa v Balaba and Another (Civil Suit No. 438 of 2012)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that the kibanja comprised in plots 501 and 502 constituted part of the estate of the late Serapio Mukasa. The defendant, claiming through his late father, was a bonafide occupant with beneficial interest. The plaintiff's acquisition was fraudulent, involving transfers without consent of beneficiaries, non-compliance with the Illiterates Protection Act, and dealings by an agent without proper authority. Main suit dismissed; counterclaim allowed with orders cancelling the registered titles and directing re-registration in the names of estate administrators.

Outcome

Main suit dismissed; counterclaim allowed with cancellation of fraudulent titles and permanent injunction against eviction of beneficiaries

Facts

The plaintiff, a minor suing through her next friend, claimed to be the registered proprietor of plot 507, Block 795, Kyadondo, measuring 0.139 hectares. She alleged that in 2010 the first defendant trespassed on her land and constructed structures, claiming beneficial interest through his grandfather Serapio Mukasa. The defendant counterclaimed that his grandfather had purchased a kibanja in the 1950s, resided there with his family including the defendant's late father, and died intestate in 1969 leaving the kibanja to his widow and descendants. The defendant alleged that the plaintiff's father, Joseph Kalumba (also a son of Serapio Mukasa and heir to the estate), connived with the landlord Sarah Buteba and her purported agent Joshua Lwere to fraudulently convert the kibanja into registered mailo interest in the plaintiff's name in 2001, without consent of other beneficiaries. Evidence showed that Kalumba made payments to Lwere between 1994 and 1999, obtained transfers from Lwere (who appeared as registered proprietor though no valid transfer from Buteba was shown), and registered plots 501 and 502 in his children's names in 2001. The court found that Serapio Mukasa had occupied the kibanja uninterrupted for decades, that his descendants including both Kalumba and the defendant's father were beneficiaries, and that the transfers violated succession law, family land provisions, and the Illiterates Protection Act.

Issues

1. Whether the suit land forms part of the estate of Serapio Mukasa
2. Whether the defendant has a beneficial interest in the suit land
3. Whether the plaintiff was fraudulent in the acquisition of the suit land
4. Remedies available

Orders

• Main suit dismissed with costs.
• Counterclaim succeeds with damages payable by the 3rd, 4th and 5th counter defendants.
• The kibanja portion comprised in plots 501 and 502, Block 795, Kyadondo Mengo, formerly part of plot 39, constitutes part of the estate of the late Serapio Mukasa.
• The Commissioner, Land Registration is directed to cancel the names appearing on the titles for plots 507 and 502, Block 795, Kyadondo Mengo created over the kibanja formerly owned by Serapio Mukasa, and under which the beneficiaries of his estate have an equitable interest, and replace them with the names of the person(s) to be appointed by court as administrators of the estate.
• The money paid by Joseph and Sarah Kalumba to purchase and/or salvage the kibanja shall constitute a debt against the estate of the late Serapio Mukasa.
• Mr. Balaba Luke, the counterclaimant, derives his interest in the kibanja from the estate of his father Sserwanga Luke who, just like Joseph Mukasa Kalumba, was a beneficiary of the estate of the late Serapio Mukasa.
• A permanent injunction issues against the counter defendants and their agents from evicting any member of the family/beneficiaries deriving interest under the estate of Serapio Mukasa.
• General damages of UGX 25,000,000 awarded to the counterclaimant to be paid jointly by the 4th and 5th counter defendants in respect of the illegalities committed against the estate.
• An amount of UGX 25,000,000 shall be paid directly to the estate of the late Serapio Mukasa by the 3rd counter defendant as general damages.
• Interest of 12% per annum shall be payable in respect to orders 6 and 7 above, from the time of delivery of this judgment till payment in full.
• Costs awarded to the counterclaimant, Luke Balaba.

Rules and key headnotes

Legislation cited (16)

• Evidence Act Cap. 6 s.101(1)
• Land Act Cap. 227 s.29(2)(a)
• Land Act Cap. 227 s.29(5)
• Land Act Cap. 227 s.35(1)
• Land Act Cap. 227 s.38
• Land Act Cap. 227 s.39
• Land Act Cap. 227 s.39(1)
• Succession Act Cap. 162 s.18
• Succession Act Cap. 162 s.25
• Succession Act Cap. 162 s.268
• Registration of Titles Act s.64(1)
• Registration of Titles Act s.176
• Illiterates Protection Act Cap. 78 s.2
• Illiterates Protection Act Cap. 78 s.3
• Illiterates Protection Act s.7(b)
• Contracts Act 2010 s.10(1)

Cases cited (26)

• George William Kakonta v Attorney General [2010] HCB 7
• Sebu Iba v Cooperative Bank Ltd [1942] HCB 130
• Okello v Attorney General (Civil Suit No. 0069 of 2004)
• Austin Lutaya v Sterling Civil Engineering Company (Supreme Court Civil Appeal No. 11 of 2002)
• Justine E. M Lutaaya v Sterling Civil Engineering Company Ltd (Civil Appeal No. 11 of 2002)
• Ndigejjerawa v Kizito and Sabone Kubulamu'uana [1953] 1 ULR 31
• Jonathan Masetabe and 3 others v Makerere University & 2 others (Civil Suit No. 857 of 2000)
• Stanbic U Ltd v Joseph Aine & Others (Civil Suit No. 314 of 2005)
• Frederick Zaabwe v Orient Bank and Others (SCCA No. 4 of 2006)
• Farm International Ltd and Ahmad Farah v Mohamed El Fatih [1994] KARL 307
• Kampala Bottlers v Damanico (U) Ltd (SCCA No. 27 of 2012)
• Lukuago v Samwiri Mudde Kizza & Another (Civil Appeal No. 13 of 1996)
• Kampala District Land Board and Another v Venansio Babweyaka and 4 Others (Civil Appeal No. 2 of 2002)
• Massozi and anor v Kalule (HCCA 2012/5)
• Tikens Francis & Another v The Electoral Commission & 2 Others (H.C Election Petition No. 1 of 2012)
• Kasaala Growers Co-operative Society v Kakooza & Another (S.C.C.A. No. 19 of 2010)
• Ngoma Ngwale v Electoral Commission & Hon. Winnie Byanyima (Election petition No. 11 of 2002)
• Latag v Starlip Insurance Brokers Ltd [2005] EA 551
• Dawo & Others v Nairobi City Council [2007] 1EA 69
• Makula International Ltd v His Eminence Cardinal Nsubuga & Another (Civil Appeal No. 4 of 1987)
• David Sejjaka Nalima v Rebecca Musoke (SCCA No. 12 of 1985)
• Bishopgates Motor Finance v Transport Brakes Ltd [1949] 1 KB 322
• Halling Manzoor v Seriulah Singh Bano (SCCA No. 9 of 2007)
• Assit (U) v Milian Asphalt & Haulage & Anor (HCCS No. 1297 of 1999)
• Frederick Nsubuga v Attorney General (S.C.C.A. No. 1 of 1999)
• Ongom v AG (1979) HCB 267

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Deirdre v Joyland Enterprises (Civil Suit 957 of 2019)

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