Wakilii

Kyewalabye Fred Simbwa v Lukwitira Yafesi and Others (Civil Appeal No. 44 of 2023)

High Court · [2025] UGHCLD 174 · 2025 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court judgment dismissing trespass claim
Decision
Appeal dismissed with costs; lower court judgment upholding dismissal of trespass claim affirmed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, upholding the Chief Magistrate's finding that the appellant failed to prove trespass. The court held that while the appellant purchased 13 feet of land and had a right to use a 10-foot access road, he wrongfully built a septic tank in the shared access road. The third respondent's construction did not constitute trespass. The court found no error in the trial magistrate's evaluation of evidence or use of locus in quo observations.

Outcome

Appeal dismissed with costs; lower court judgment upholding dismissal of trespass claim affirmed

Facts

The appellant claimed the respondents trespassed on his kibanja comprising 13 feet of land and a 10-foot access road at Kinawataka Mbuya. He purchased one room and 13 feet from Nansubuga Rebecca in 2018 under an agreement recognising a 10-foot access road beyond the 13 feet. The third respondent purchased adjacent land from the same vendor in 2019. The appellant built a septic tank which he claimed was on his land. The respondents contended the septic tank was built in the middle of the shared access road. The Chief Magistrate's Court visited the locus in quo, measured the land, and found the appellant had exceeded his 13-foot boundary and built the septic tank in the shared access road. The trial court dismissed the trespass claim, finding the appellant was the encroacher.

Issues

  1. Whether the learned trial Magistrate erred in law and fact when he failed to properly and exhaustively evaluate all the evidence on record.
  2. Whether the learned trial Magistrate erred in law and fact when he used the facts gathered from the locus in quo visit to fill in the gaps left behind in the defence evidence.

Orders

  • Appeal dismissed.
  • Judgment and orders of the lower court upheld.
  • Costs of the appeal awarded to the respondents.

Rules and key headnotes

Trespass to Land — Elements of the Tort — Possession, Unlawful Entry, and Damage
To prove an action in trespass to land, a plaintiff must show that he was in possession of the land, that there was unlawful entry by the defendant, and that the entry occasioned damage. Trespass to land is committed not against the land but against the person who is in actual or constructive possession of the land.
Shared Access Roads — Rights of Use and Exclusive Possession
Where an access road is designated for shared use by multiple occupants under a sale agreement, neither party has a right to exclusive possession of the access road. It is wrongful for any party to build permanent structures such as a septic tank in a shared access road.
Locus in Quo Visits — Purpose and Proper Use of Evidence Gathered
A visit to the locus in quo is intended to enable the court to check on the evidence given by witnesses in court and not to fill gaps in their evidence. Evidence gathered at the locus must corroborate or clarify testimony already on record.
Sketch Maps from Locus in Quo — Evidentiary Value
A sketch map drawn at the locus in quo is not substantive evidence but only demonstrative of the oral evidence given. Failure to indicate precise measurements on a sketch plan is not fatal to the proceedings where oral evidence establishes the material facts.
Contradictions in Witness Testimony — Effect on Credibility
Grave inconsistencies and contradictions in a witness's evidence, unless satisfactorily explained, will usually result in the evidence being rejected. Minor inconsistencies, unless they point to deliberate untruthfulness, will be ignored. Contradictions relating to material points of fact are grave and warrant rejection of the evidence.

Legislation cited (1)

Cases cited (14)

  • Odyek Alex and Another v Gena Yokonani and 4 Others (High Court Civil Appeal No. 09 of 2017)
  • Nakagiri Nakabega and 2 Others v Masaka District Growers Co-operative Society [1985] HCB 38
  • Justine EMN Lutaaya v Stirling Civil Engineering Co. Ltd (Court of Appeal No. 11 of 2002)
  • Owe Vs Osibanja (1965) All NLR pg. 72 at p. 76
  • Konsiker v Goodman Ltd [1928] 1 KB 421
  • Everet Vs Williams, Ex 1725, 9 LQ... Rev. 197
  • D.R. Pandya v Republic [1957] E.A. 336
  • Ojagol v Otetum (Civil Appeal No. 24 of 2023)
  • Akena Jabina and Another v Odong Benjamin (High Court Civil Appeal No. 35 of 2018)
  • Yeseri Waibi v Edisa Byandala [1982] HCB 28
  • Nsibambi v Nankya [1980] HCB 81
  • Mukasa v Uganda (1964) EA 698
  • John Siwa Bonin v Arap Kissa (High Court Civil Suit No. 58 of 2007)
  • Mugyenzi Justice and Others v Kateeba Rose and Others (Court of Appeal Civil Appeal No. 162 of 2021)

Full judgment

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

Kyewalabye_Fred_Simbwa_v_Lukwitira_Yafesi_and_Others_(Civil_Appeal_No._44_of_2023)_[2025]_UGHCLD_174_(18_August_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.