Wakilii

Mabirizi Kiwanuka & Anor v Owere Franco & 3 Ors (Miscellaneous Application No. 2673 of 2014)

High Court · [2015] UGHCEBD 10 · 2015 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside distress for rent certificate and for return of distressed properties arising from Miscellaneous Cause No. 2469 of 2014
Decision
Distress for rent set aside as unlawful; properties ordered returned; eviction as trespassers held lawful; applicants not entitled to return to premises

Observed later treatment

Cited — treatment unverified cited in 3 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

No adverse treatment recorded Cited 3 times with no adverse treatment recorded; not yet tested on the merits. Citations fading — 3 citing cases on record, 3 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that distress for rent is only applicable where a landlord-tenant relationship subsists between the parties. Where a tenancy has terminated, the former tenant becomes a trespasser and the landlord cannot levy distress for rent, notwithstanding any contractual provision purporting to preserve such right after termination. Held further that a Registrar of the Execution Division has no jurisdiction to issue a certificate for levying distress; such jurisdiction vests exclusively in a Chief Magistrate or Magistrate Grade 1 under the Distress for Rent (Bailiffs) Act. Certificate issued by Registrar set aside as illegal. However, the landlord was entitled to evict the applicants as trespassers using reasonable force.

Outcome

Distress for rent set aside as unlawful; properties ordered returned; eviction as trespassers held lawful; applicants not entitled to return to premises

Facts

The applicants had entered into a tenancy agreement with the 2nd respondent in 2012. After the tenancy expired and terminated, the 2nd respondent (landlord) applied to the Registrar of the Execution Division of the High Court and obtained a certificate to levy distress for rent. Acting on this certificate, the 1st respondent as bailiff levied distress on the applicants' properties. The applicants brought this application seeking cancellation of the distress certificate, return of their properties, an order restraining the respondents from dealing with the premises, reopening of the premises, withdrawal of security guards, and damages for unlawful eviction. The applicants contended there were illegalities on the face of the record, including that the certificate was issued while a Commercial Court order maintaining the status quo was in existence, that they were not served with court process, that the certificate was illegally obtained as no application was made to a Chief Magistrate or Magistrate Grade 1 as required by law, that the bailiff deposited no security and held no insurance policy, and that the bailiff abused the certificate by attaching items not scheduled and locking up the premises.

Issues

  1. Whether the respondents' distress for rent against the applicants and all related actions were lawful.
  2. What remedies are available to the applicants.

Orders

  • Applicants awarded damages in the sum of UGX 1,000 for wrongful distress for rent.
  • 1st Respondent shall immediately return to the Applicants all the Applicants' properties that were taken from the premises under distress for rent.
  • Applicants awarded costs of the application.

Rules and key headnotes

Landlord and Tenant — Distress for Rent — Cessation of Tenancy Relationship
Distress for rent is only applicable where there subsists a relationship of landlord and tenant between the parties; where a tenancy determines by effluxion of time or otherwise and the former tenant remains in possession against the will of the rightful owner, the former tenant is a trespasser and the landlord cannot levy distress for rent.
Landlord and Tenant — Distress for Rent — Contractual Extension of Right After Tenancy Termination
Where a tenancy agreement purports to preserve the landlord's right to levy distress for rent even after termination of the tenancy relationship, such contractual provision is ineffective in Uganda as there is no statutory extension (unlike in England) of the common law right to distrain after cessation of the landlord-tenant relationship.
Administrative Law — Jurisdiction — Certifying Officers for Distress Bailiffs
Under section 2 read with section 1 of the Distress for Rent (Bailiffs) Act, jurisdiction to issue a certificate for the levying of distress for rent and the appointment of a bailiff in that regard vests exclusively in a Chief Magistrate or a Magistrate Grade 1; a Registrar of the Execution Division has no jurisdiction to issue such a certificate and any certificate so issued is illegal and cannot stand.
Civil Procedure — Execution Division — Jurisdiction of Execution Division
Jurisdiction is strictly a creature of specific law and can neither be assumed nor usurped by any court; the Execution Division has no jurisdiction to sit as a court of first instance and its remit is consequential and restricted to the enforcement of decrees or orders issued by other courts.
Trespass — Eviction of Trespassers — Use of Reasonable Force
Where tenants defy the landlord's terms and conditions of tenancy and the landlord gives notice to repossess or effect a lawful act which the tenants continue to disregard, they become trespassers on the property; the owner may resort to any legal means including the use of reasonable force to evict the trespasser and remove their property from the premises so as to leave the premises vacant.
Civil Procedure — Extraction of Orders — Duty of Registrars and Counsel
Registrars must be particularly careful to ensure that extracts from decrees or orders are compliant with the decrees or orders they are extracted from; it is incumbent on counsel to strictly adhere to the Civil Procedure Rules requiring that extracts of decrees or orders must first be presented to the opposite counsel for approval before presenting them to court for endorsement.

Legislation cited (6)

Cases cited (7)

  • Souza Figueiredo & Co. Ltd v George & Others [1959] EA 756
  • Joy Tumushabe & Anor v M/s Anglo African Ltd & Anor (Supreme Court Civil Appeal No. 7 of 1999)
  • Jackson vs Courteneou (1857) 8 E&B 8, Ex. Ch.
  • Scott vs Matthew Brown & Co. Ltd. (1884)51 LT. 746
  • Shaw vs Chairitle (1850)3 Car. & Kir. 21
  • Hemmings v Stoke Pages Golf Club Limited & Anor [1920] 1 KB 720 (CA)
  • Harvey vs Brudges 14M & W437

Cases citing this judgment (3)

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.

Full judgment

↓ Download PDF

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

Mabirizi Kiwanuka & Anor v Owere Franco & 3 Ors (Miscellaneous Application No. 2673 of 2014) [2015] UGHCEBD 10 (25 May 2015)
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.