Wakilii

Kyepaka Francis & Another v. George Rwakarongo & 2 Others (Civil Suit No. 289 of 2007)

High Court · [2012] UGHC 12 · 2012 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit in Land Division seeking eviction, permanent injunction and damages for trespass
Decision
Plaintiffs' suit dismissed; First Defendant's counterclaim granted; title to be cancelled and reissued in names of both Plaintiffs and First Defendant as tenants in common in equal shares; permanent injunction granted against Plaintiffs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the first Defendant, George Rwakarongo, qualifies as a bona fide occupant under Article 237(8) of the Constitution and section 29(2) of the Land Act, having occupied and utilized Ranch 24A unchallenged for over 12 years before 1995, both in his own right and through his late father Bitanuzire. The registration of the Plaintiffs as proprietors was tainted with fraud as they suppressed the First Defendant's known interest and obtained the lease without giving him a hearing. Plaintiffs' suit dismissed; First Defendant's counterclaim granted; certificate of title cancelled and fresh title ordered in the names of both Plaintiffs and First Defendant as tenants in common in equal shares.

Outcome

Plaintiffs' suit dismissed; First Defendant's counterclaim granted; title to be cancelled and reissued in names of both Plaintiffs and First Defendant as tenants in common in equal shares; permanent injunction granted against Plaintiffs

Facts

In 1965, the late Samwiri Kakoro and Paul Kaburuku were allocated Ranch 24 by the Ranching Selection Board as a company named 'Kakoro, Kaburuku & Co'. The late Bitanuzire (First Defendant's father) contributed cattle and utilized the ranch along with Kakoro and Kaburuku from 1966, though his name did not appear on the title. The First Defendant George Rwakarongo moved to the ranch in 1978 and lived there unchallenged, first with his cousin the late Kakono, then from 1985 on his own portion where he built permanent structures and developed the land. In 1990 the Ranches Restructuring Board divided Ranch 24, allocating Ranch 24A to Kyepaka (First Plaintiff), the late Kakono (husband to Second Plaintiff) and Rwakarongo as ranchers. Kyepaka and Kakono objected to the District Land Board, which overturned the allocation. In 2005 the Plaintiffs obtained registration as proprietors of Ranch 24A, excluding Rwakarongo. Plaintiffs sued for eviction and damages, alleging Rwakarongo had trespassed by fencing land and purporting to be owner. Rwakarongo counterclaimed as bona fide occupant.

Issues

  1. Whether the Defendants have any lawful claim and/or interest in the said land, Ranch 24A.
  2. Whether the Plaintiffs/Defendants are entitled to the remedies sought.

Orders

  • The Plaintiffs' case dismissed with costs.
  • The First Defendant is declared a lawful/bona fide occupant of the suit land.
  • The Defendant is lawfully in possession of the suit land and acquired his interest from persons who possessed the land for more than 12 years before the 1995 Constitution.
  • The Plaintiffs wrongfully, unlawfully and fraudulently registered the suit land.
  • The certificate of title to Ranch 24A comprised in LRV Vol. 3416 Folio 5 in the names of Francis Kyepaka and Norah Kakono be cancelled.
  • A fresh title with the names of Francis Kyepaka, Norah Kakono (as administrator of the estate of the late Charles Kakono) and George Rwakarongo as tenants in common in equal shares be issued.
  • A permanent injunction is granted against the Plaintiffs restraining them from alienating, interfering and trespassing upon the First Defendant's land.
  • The First Defendant is awarded general damages of UGX 20,000,000 for trespass on the suit land.
  • Interest on general damages at the rate of 20% per annum from the date of judgment till payment in full.
  • Costs of the suit awarded to the First Defendant.

Rules and key headnotes

Bona Fide Occupancy — Requirements for Establishing Status
A person qualifies as a bona fide occupant under Article 237(8) of the Constitution and section 29(2) of the Land Act if he had occupied and utilized or developed any land unchallenged by the registered owner for twelve years or more before the coming into force of the 1995 Constitution, or had been settled on land by the government or its agent.
Bona Fide Occupancy — Rights Against Registered Proprietor
A registered proprietor of land enjoys his rights subject to those of a bona fide occupant. A bona fide occupant is given security of tenure and his interest cannot be alienated except as provided by law. The bona fide occupant may apply for a certificate of occupancy under section 33(1) of the Land Act or for a lease under section 38 of the Land Act.
Licence — Distinction from Bona Fide Occupancy
A licencee is a person who is given permission to enter land for some specified purpose that would otherwise amount to trespass. A licence passes no interest nor alters or transfers property but only makes an action lawful which without it would have been unlawful. Occupation that extends over decades with permanent structures erected and land developed unchallenged is inconsistent with the status of mere licencee.
Fraud — Registration Procured by Suppression of Known Interest
If a person procures registration to defeat an existing unregistered interest of which he is proved to have knowledge, such person is guilty of fraud. Fraud includes dishonest dealing in land or sharp practice intended to deprive a person of an interest in land. Where knowledge of an unregistered interest is accompanied by wrongful intention to defeat such existing interest, fraud is established.
Cause of Action — Requirements for Disclosure in Plaint
A cause of action means every fact which is material to be proved to enable the Plaintiff to succeed. To establish a cause of action, the plaint must disclose three essential elements: (a) the Plaintiff enjoyed a right; (b) the right has been violated; and (c) the Defendant is liable. In determining whether a plaint discloses a cause of action, the court looks only at the plaint and assumes that the facts alleged are true, without delving into extrinsic evidence.
Natural Justice — Fair Hearing in Land Allocation Decisions
A decision by a District Land Board to overturn an allocation made by the Ranch Restructuring Board without giving the affected party a fair hearing or opportunity to be heard violates principles of natural justice under the Constitution and the Land Act. Failure to follow prescribed procedure or to hear a person before granting a lease over land he occupies amounts to fraud.

Legislation cited (8)

Cases cited (21)

  • Makula International Ltd v Cardinal Nsubuga Wamala and Another [1982] HCB 11
  • Tororo Cement Company v Frokina International Ltd (Civil Appeal No. 2 of 2001)
  • Auto Garage and Others v Motokov (No. 3) [1971] EA 514
  • Attorney General v Oluoch [1972] EA 392
  • Sullivan v Mohamed Osman [1959] EA (CA) (T)
  • Mukisa Biscuit Manufacturing Co v West End [1969] EA 696
  • Kampala District Land Board and George Mitala v Venancio Babweyaka and 3 Others (Civil Appeal No. 2 of 2007)
  • Kampala District Land Board and Chemical Distributors v National Housing and Construction Corporation (Civil Appeal No. 2 of 2004)
  • Radaic v Smith (1959) 101 CLR 209
  • Thomas v Sorrell 1098 ER 124
  • Fredrick Zaabwe v Orient Bank and 5 Others (SCCA No. 04 of 2006)
  • Katarikawe v Katwiremu [1977] HCB 187
  • J. W. Kazoora v Rukuba (Civil Appeal No. 13 of 1992)
  • B. E. A Timber Company v Under Singh Jill [1959] EA 469
  • Kampala Bottlers Ltd v Damaniko (U) Ltd (Civil Appeal No. 22 of 1992)
  • Hannington Njuki v George William Musisi [1999] KALR 783
  • Costa Bwambale and Another v Yosofati Matte and 3 Others [2001-2005] HCB 76
  • S. M Sekabanja v Sajabi and 3 Others [1983] HCB 54
  • Kyagulanyi Coffee Ltd v Steven Tomusange (Civil Appeal No. 9 of 2001)
  • Mbogo and Another v Shali [1968] EA 93
  • Assist (U) Ltd v Italian Asphault & Haulage and Another (HCCS No. 1291 of 1999)

Full judgment

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

Kyepaka Francis & Another Vs. George Rwakarongo & 2 Others (Civil Suit No. 289 of 2007) [2012] UGHC 12 (26 January 2012)
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.