Wakilii

Kyeyune and Another v Nakafeero and Others (Civil Appeal 45 of 2017)

High Court · [2023] UGHCLD 231 · 2023 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment in a land trespass suit
Decision
Appellants declared lawful owners of the suit land; respondents ordered to vacate within six months; permanent injunction granted; damages and costs awarded to appellants.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the appellants lawfully acquired a Kibanja interest in the suit land in 1949 with the implied consent of the registered mailo landowner, as evidenced by subsequent dealings including lease approval and grant. The respondent's purported acquisition in 1969 was null and void ab initio for lack of consent by the registered owner as required under the Busuulu and Envujjo Law 1928. Appeal allowed; appellants declared lawful owners; respondents ordered to vacate within six months.

Outcome

Appellants declared lawful owners of the suit land; respondents ordered to vacate within six months; permanent injunction granted; damages and costs awarded to appellants.

Facts

The appellants' late father, Eriabu Makanga, purchased a Kibanja on Plot 3 Kasangati Trading Centre from Besweri Katera in 1949 and occupied it continuously. In 1967, he applied to the Buganda Land Board for a lease, which was approved in 1968 and granted in 1977 for a term of 2 years. The 1st respondent's late father, John Kafeero, claimed to have purchased the same land from an Indian, Kantibhai Manibhai Patel, in 1969. In December 1991, Kafeero began to lay claim to the land and dumped building materials. Eriabu Makanga sued for trespass in 1992. The original trial judgment favoured Makanga, but was set aside on appeal and a retrial ordered. The retrial magistrate found in favour of Kafeero in 2017. Both original parties died during the litigation and were replaced by their respective administrators.

Issues

  1. Whether the appellants are the lawful owners of the suit land.
  2. Whether the respondents are trespassers on the suit land.
  3. What remedies are available to the parties.

Orders

  • Appeal allowed.
  • Judgment of the Chief Magistrate's Court of Nabweru at Kasangati delivered on 12 April 2017 set aside.
  • Appellants Livingstone Kyeyune and David Ssemmanda declared lawful owners of land and developments comprised in Plot 3 at Kasangati Trading Centre, Wakiso District.
  • Respondents Nakafeero Proscovia, C. Katama and Sheikh Bbale ordered to vacate the suit land and remove any buildings within 6 months from the date of judgment, in default of which they shall be evicted and any illegal buildings demolished in accordance with The Constitution (Land Evictions) (Practice) Directions, 2021.
  • Permanent injunction issued restraining the respondents, their agents, servants, workmen and all those claiming under them from trespassing, encroaching, interfering or in any way dealing with the suit land.
  • 1st respondent Nakafeero Proscovia ordered to pay general damages of UGX 20,000,000 to the appellants.
  • 1st respondent ordered to pay interest of 15% per annum on general damages from the date of judgment until payment in full.
  • 1st respondent ordered to pay the costs of the appeal and in the lower court.

Rules and key headnotes

Kibanja Tenure — Acquisition — Consent of Mailo Owner
Under the Busuulu and Envujjo Law 1928, a person could not lawfully acquire a Kibanja interest on mailo land without the consent of the mailo landowner, and any purported acquisition without such consent was null and void ab initio.
Kibanja Tenure — Implied Consent — Evidence
Implied consent by a mailo landowner to the occupation and utilisation of land by a Kibanja holder may be manifested by signs, actions, facts, inaction or silence which raise a presumption that consent has been given, including approval of lease applications, acceptance of payments, and issuance of leasehold titles.
Kibanja Tenure — Transfer — Prohibition under Busuulu and Envujjo Law 1928
Section 8(2) of the Busuulu and Envujjo Law 1928 prohibited a Kibanja holder from transferring or subletting his Kibanja to any other person, and any such transfer without the consent of the mailo owner was null and void ab initio.
Land Transfer Act — Non-Citizen Acquisition — Ministerial Consent
Under the Land Transfer Act (Cap 202), a non-citizen of Uganda was required to obtain the consent of the Minister in order to legally acquire an interest in land, and the absence of such consent rendered the acquisition null and void ab initio with no interest capable of being transferred to a third party.
Lawful Occupancy — Security of Tenure — Eviction
A tenant by occupancy holding a Kibanja interest is a lawful occupant under section 29(1)(a) of the Land Act and enjoys security of occupancy, and may only be evicted upon a court order and only for non-payment of annual nominal ground rent.
Fraud — Standard of Proof
In fraud cases, the standard of proof is more than a mere balance of probabilities though less than proof beyond reasonable doubt.
Appellate Review — Duty of First Appellate Court
The duty of the first appellate court is to subject the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion, while making due allowance for the fact that it has not seen or heard the witnesses and must be guided by the impression made on the trial judge.

Legislation cited (7)

Cases cited (6)

  • Fr. Narsensio Begumisa & 3 others v Eric Tibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Owembabazi Enid v Guarantee Trust Bank Limited (High Court Civil Suit No. 63 of 2019)
  • Jennifer Nsubuga v Michael Mukundane & Another (Court of Appeal Civil Appeal No. 208 of 2018)
  • Muluta Joseph v Katama Sylvano (Civil Appeal No. 11 of 1999)
  • Fam International Ltd & Anor v Muhammed Hamid (Civil Appeal No. 16 of 1993)
  • Mistry Amar Singh v. Serwano Wofunira Kulubya [1963] E.A 408

Full judgment

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

Kyeyune_and_Another_v_Nakafeero_and_Others_(Civil_Appeal_45_of_2017)_[2023]_UGHCLD_231_(4_August_2023)
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.