Wakilii

Masereka and 3 Others v Mbuiraghe and Another (Civil Suit 20 of 2017)

High Court · [2023] UGHCCD 257 · 2023 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections raised by the 2nd defendant contending that the suit is res judicata and barred by the principle of judgment in rem
Decision
Preliminary objections dismissed; matter to proceed to trial on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court overruled preliminary objections raised by the 2nd defendant. The court held that the suit was not res judicata because the plaintiffs were not parties to the former suit and the question of whether the land was family land was not tried. The court further held that the doctrine of judgment in rem was not applicable, as the plaintiffs did not contest the earlier judgment but claimed entitlement as family members who had authorized the deceased to protect family land.

Outcome

Preliminary objections dismissed; matter to proceed to trial on merits

Facts

The plaintiffs sued the defendants claiming that family land had been entrusted to Mukusi Bwambale, who permitted Biregho to use it temporarily. After Mukusi's death, Biregho attempted to seize the land. The family authorized Kalekene Muhindo (the 1st defendant's father) to file suit to protect the land. Kalekene obtained judgment in Civil Appeal No. 5 of 2008 declaring him owner. The plaintiffs now claim that the 1st defendant and 2nd defendant are using that judgment to deny them their entitlements as family members. The 2nd defendant raised preliminary objections that the suit was res judicata and barred by judgment in rem.

Issues

  1. Whether the plaintiffs' suit is res judicata.
  2. Whether the suit is barred under the principle of a judgment in rem.

Orders

  • Both preliminary objections on points of law are hereby overruled.
  • Each party shall bear own costs.
  • The parties are directed to complete all their filings in terms of Joint Scheduling Memorandum, Witness Statements and Trial bundles by 18.8.2023.
  • The case is hereby fixed for mention on 18.8.2023.

Rules and key headnotes

Civil Procedure — Res Judicata — Requirements for Application of Doctrine
For the doctrine of res judicata to apply under section 7 of the Civil Procedure Act, three requirements must be satisfied: (a) there must be a former suit or issue decided by a competent court; (b) the matter in dispute in the former suit must be directly or substantially in dispute in the current suit; and (c) the parties in the former suit must be the same parties or parties under whom they claim, litigating under the same title.
Civil Procedure — Res Judicata — Burden of Proof
The burden of proving res judicata rests on the party raising it. It is not a pure question of law that can be resolved on submissions alone. The court must consider the relevant record of proceedings and may receive extrinsic evidence to establish that the subject matter has been litigated between the same parties or parties through whom they claim.
Civil Procedure — Res Judicata — Identity of Parties and Issues
A suit is not barred by res judicata where the plaintiffs were not parties to the former suit and the specific issue they raise (whether land was family land and whether they are entitled to a share) was not tried or determined in the former suit, even if the former suit concerned ownership of the same land.
Civil Procedure — Judgment in Rem — Definition and Effect
A judgment in rem is one that determines the status of a person or thing and is conclusive not only against the parties to it but also against the whole world. It binds all persons even when they are not parties to the proceedings and estops them from averring that the status of persons or things or the right to title to property are other than what the court has declared.
Civil Procedure — Judgment in Rem — Inapplicability Where Plaintiffs Do Not Contest Earlier Judgment
The doctrine of judgment in rem does not bar a suit where the plaintiffs do not contest the earlier judgment declaring ownership but claim entitlement as family members who had authorized the successful party to protect family land. A full trial is necessary to ascertain the truth and validity of such a claim.

Legislation cited (2)

Cases cited (13)

  • Onzira Elizabeth v Shaban Fadule (Civil Appeal No. 19 of 2013)
  • Bahati Biregho v Kalekene Muhindo (Civil Appeal No. 5 of 2008)
  • Ponsiano Semakula v Susane Magala and Others (1993) KALR 213
  • Karia and Another v Attorney General and Others (2005) 1 EA 83
  • Mansukhal Ramji Karia and Another v Attorney General and Others (Supreme Court Civil Appeal No. 20 of 2002)
  • Onzia Elizabeth v Shaban Fadul and Another (Civil Appeal No. 19 of 2013)
  • George William Katerega v Commissioner for Land Registration and Others (Misc. Application No. 347 of 2015)
  • Saroji Gandesha Vs. Transroad Ltd
  • Nicholas Marteemns & others Vs. South African National Parks, Case No. 0117
  • Japheth Nzila Muangi v Kenya Safari Lodges and Hotels Ltd [2008] eKLR
  • Saroji Gandesha v Transroad Ltd (Supreme Court Civil Appeal No. 13 of 2009)
  • Kamunyu and Others v Attorney General and Others (2007) 1 EA 116
  • George William Katerega v Commissioner for Land Registration and 12 Others (Misc. Application No. 347 of 2013)

Full judgment

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

Masereka and 3 Others v Mbuiraghe and Another (Civil Suit 20 of 2017) [2023] UGHCCD 257 (30 June 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.