Wakilii

Mbakira Asaph v Nkuba George William (Civil Suit 75 of 2023)

High Court · [2025] UGHC 435 · 2025 Preliminary Objection Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objection raised by defendant at scheduling conference
Decision
Civil Suit No. 75 of 2023 barred under the lis pendens rule

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court upheld the preliminary objection, finding that Civil Suit No. 75 of 2023 offended the lis pendens rule under section 6 of the Civil Procedure Act. The court applied the three-way test and found that two suits involving the same parties and the same land were pending before the High Court at Mbarara. Both suits concerned ownership of land at Bihunya Cell, Katete Ward, Nyamitanga Division, Mbarara City. Civil Suit No. 78 of 2021 sought a declaration of ownership and trespass, while Civil Suit No. 75 of 2023 sought cancellation of title based on fraud. The court held that the matter in issue was directly and substantially similar in both cases.

Outcome

Civil Suit No. 75 of 2023 barred under the lis pendens rule

Facts

The defendant Nkuba George William filed Civil Suit No. 78 of 2021 against Mbakira Asaph and three others seeking a declaration that the defendants were trespassers on land at Bihunya Cell, Katete Ward, Nyamitanga Division, Mbarara City, and a declaration that the suit land was his. A temporary injunction to maintain the status quo was granted in that suit. While Civil Suit No. 78 of 2021 was pending, the defendant obtained a certificate of title over the suit land on 21 September 2022 (Freehold Register Volume Mbr 1285, Folio 8 Plot 3 Nkuba Close at Bihunya). The plaintiff Mbakira Asaph then filed Civil Suit No. 75 of 2023 seeking cancellation of the certificate of title on grounds of fraud. The defendant raised a preliminary objection that the second suit offended the lis pendens rule. Both parties agreed at scheduling that the subject matter in both suits was the same.

Issues

  1. Whether the current suit (Civil Suit No. 75 of 2023) offends the lis pendens rule.

Orders

  • Preliminary objection upheld.

Rules and key headnotes

Civil Procedure — Lis Pendens — Three-Way Test for Application of Rule
To determine whether a suit offends the lis pendens rule under section 6 of the Civil Procedure Act, the court must apply a three-way test: (1) there are two or more suits before a court having jurisdiction to give a remedy; (2) the parties are the same or parties under whom they claim, litigating under the same title; and (3) the matter in issue is directly and substantially similar in both cases.
Civil Procedure — Lis Pendens — Relationship to Res Judicata
The doctrine of lis pendens is an aspect of the rule of res judicata. A suit that offends the lis pendens rule is barred because there is a risk that the matter will become res judicata during the hearing of one case when judgment is entered in another.
Land & Property — Lis Pendens — Suit for Cancellation of Title Where Ownership Suit Pending
Where a suit for declaration of ownership of land is pending and a party to that suit subsequently obtains a certificate of title over the same land and a second suit is filed seeking cancellation of that title on grounds of fraud, the second suit offends the lis pendens rule if the matter in issue is directly and substantially the same as in the first suit.

Legislation cited (1)

Cases cited (4)

Full judgment

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Mbakira Asaph v Nkuba George William (Civil Suit 75 of 2023) [2025] UGHC 435 (18 June 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.